Significant 1998 Tort Law Developments

JurisdictionConnecticut,United States
Publication year2021
CitationVol. 73 Pg. 317
Pages317
Connecticut Bar Journal
Volume 73.

73 CBJ 317. Significant 1998 Tort Law Developments

Significant 1998 Tort Law Developments

By KATHRYN CALIBEY AND DOUGLAS W. Hammond (fn*)

In this survey, we review prominent 1998 developments in tort law. The 1998 case with the broadest potential impact, Bhinder v. Sun Co., (fn1)was short-lived. In 1999, the General Assembly abrogated that decision which briefly had allowed apportionment between negligent and intentional tortfeasors. We discuss both the judicial decision and the legislative act. Other 1998 decisions may have a more lasting effect. For example, Binette, the first case discussed below, articulated the factors to be considered in deciding whether to recognize a private cause of action for constitutional violations.

Coverage is slightly less comprehensive than in years past, although we have expanded the discussion of some key cases. We also revisit two cases regarding loss of a chance, to discuss whether those precedents pertain to claims for the premature death of persons suffering from chronic, life-threatening diseases.

I. PRIVATE CAUSES OF ACTION FOR CONSTITUTIONAL VIOLATIONS

Although the law may be no clearer in its wake, the Supreme Court provided a lengthy discussion of the circumstances under which it would recognize a private cause of action for monetary damages arising from constitutional violations. In Binette v. Sabo, (fn2) a divided Supreme Court recognized a private cause of action for monetary damages stemming from violations of article first, sections 7 (fn3) and 9 (fn4) of the Connecticut Constitution. justice Palmer, who was not on the panel that heard argument, wrote the opinion of the Court, which was divided into two parts. The first rejected the plaintiff's assumption that a claim for violation of such constitutional rights necessarily existed pursuant to the open courts provision of the state constitution, article first, section 10, (fn5) simply because a common-law action for similar violations existed prior to the adoption of our constitution in 1818. (fn6) Justice Berdon and Katz dissented from that first part but joined the second part of the opinion, which engaged in a multi-factor analysis resulting in the creation of a damages action under the state constitution for violation of article first, sections 7 and 9. (fn7) Chief justice Callahan and justices Norcott and McDonald dissented from the second part.




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In Binette, the plaintiffs brought an action seeking damages against the Torrington police chief and a police officer from an incident in which they allegedly caused physical injuries after entering plaintiffs' home without permission or warrant. (fn8) The complaint contained twenty-two counts, including counts alleging various common-law torts, and violations of 42 U.S.C. section 1983, (fn9) as well as counts purporting to state a cause of action directly under the state constitution. (fn10) The defendants removed the action to the United States District Court, which asked the Connecticut Supreme Court to determine the validity of the counts brought pursuant to the state constitution. The Supreme Court first considered the argument that article first, section 10 of the state constitution guarantees the right to bring a claim directly under article first, sections 7 and 9, which was first briefed by an amicus curiae, the Connecticut Civil Liberties Union Foundation. (fn11) The plaintiffs, adopting that argument, contended that they were entitled to bring a constitutional action for damages because a damages remedy existed prior to the adoption of the Constitution of 1818 for violations of rights, substantially similar to those protected under article first, sections 7 and 9, which were viewed as fundamental in 1818. (fn12) The Court concluded that neither Gentile v. Altermatt, (fn13) nor Kelley Property Development, Inc. v. Lebanon, (fn14) established or necessarily implied that article first, section 10 embodies a private cause of action for pre-1818 fundamental common-law rights. (fn15) Because the plaintiffs and the amicus curiae simply assumed that article first, section 10 permitted such claims under those precedents, and offered no independent analysis, the Court decided that it would leave the validity of that proposition to a case in which it was fully analyzed, rather than merely assumed. (fn16)

The Court then held that it had the authority to create a damages action under the state constitution, (fn17) and did so for the policy reasons articulated in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. (fn18) The Court rejected the defendants' contention that no constitutional action should be created because the plaintiffs already had remedies under both state common law and 42 U.S.C. section 1983. (fn19)




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The Court recognized that its creation of a state constitutional tort remedy undoubtedly will spawn some additional litigation regarding the availability of the remedy and its parameters. (fn20) The Court emphasized that its decision "does not mean that a constitutional cause of action exists for every vio- lation of our state constitution." (fn21) The determination of whether to recognize a cause of action for alleged violations of other state constitutional provisions will be decided on a case-by-case basis, considering the following factors: The nature of the constitutional provision; the nature of the purported unconstitutional conduct; the nature of the harm; separation of powers considerations and other factors articulated in Bivens and its progeny; the policy concerns expressed in Kelley Property Development, Inc.; (fn22) and any other pertinent factors brought to light by future litigation. (fn23)

Chief justice Callahan, joined by justices Norcott and McDonald, would not have recognized a new cause of action to redress infringements of the rights protected by article first, sections 7 and 9, under either the open courts provision, article first, section 10, or by creation of a new direct constitutional cause of action. (fn24) The Chief justice emphasized that the plaintiffs already had adequate common-law remedies available. He worried that "[h]aving allowed these plaintiffs, who have alternate common-law causes of action capable of providing them with complete redress, a constitutional cause of action that gives them nothing more than symbolic relief, we will, I believe, be hard pressed, under the majority's rationale, to decline to recognize analogous actions to redress infringements of other provisions of our state constitution." (fn25)




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justice McDonald not only joined the opinion authored by Chief justice Callahan but also issued a separate sharp dissent from the second part of the opinion, writing that [p]olice officers should not face the choice between being carried by six pall bearers or having a like number of jurors take away their home." (fn26) The majority responded that "[t]he concerns raised by Justice McDonald in his concurring and dissenting opinion are entirely unfounded" and later noted that "we emphatically disagree with justice McDonald's conclusion that today's decision creates a Hobson's choice for the police." (fn27)

justice Berdon concurred in the recognition of a common-law cause of action for violations of article first, sections 7 and 9. He dissented from addressing the question of whether article first, section 10 of the state constitution provided a cause of action for damages caused by the defendant's violations of other provisions of the state constitution. (fn28) justice Katz reached similar conclusions. She indicated that it was imprudent and unnecessary to close the door to a direct constitutional action under article first, section 10. (fn29) Justice Palmer responded by noting that the Court was not rejecting the proposition that article first, section 10, may, under appropriate circumstances, embody a private cause of action for pre-1818 "fundamental" common-law rights. (fn30)

II. APPORTIONMENT OF LIABILITY



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The authors were both stunned by the decision in Bhinder v. Sun Co., (fn31) which extended apportionment between joint tortfeasors as a matter of common law. In Bhinder, all seven members of the Court agreed that Section 52-572h of the General Statutes provided for apportionment only of negligence and not of reckless, willful and wanton misconduct. (fn32) By a 4-3 vote, (fn33) however, the Court held that, as a matter of common law, such apportionment would be permitted, in light of the statutory changes of tort reform. The 1999 session of the General Assembly abrogated Bhinder, but the case still merits discussion as an illustration of the potential unexpected ramifications of tort reform laws.

The Court noted that its previous recognition that a defendant may be liable for injuries to a plaintiff as the result of a criminal assault by a third party if the type of harm caused is within the scope of the risk created by the defendant's negligent conduct did not mean that the negligent defendant should be solely responsible for those injuries. (fn34) The Court reasoned that precluding the defendant from allocating fault is inconsistent with the principle of comparative negligence that a defendant should be liable only for that proportion of the damages for which he or she was responsible.

The authors believe that the result was wrong, for the reasons noted in the dissent of Justice Borden. In rejecting the defendant's statutory argument for apportionment, the Court had reiterated that tort reform, including Section 52572h, was a response to concerns about the cost and availability of liability insurance and that, "[a] s finally enacted, the act represents a complex web of interdependent concessions and bargains struck by hostile interest groups and individuals of opposing philosophical positions." (fn35) The Bhinder Court, by...

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