Significant Tort Developments in 2005
| Publication year | 2021 |
| Pages | 139 |
80 CBJ 139. SIGNIFICANT TORT DEVELOPMENTS IN 2005
This past year included significant case law development as well as important statutory changes in the tort area. The focus of the article is on substantive and procedural developments that directly or indirectly relate to tort law. The amount of material necessarily requires that some cases or developments be omitted or only briefly discussed.
I. APPORTIONMENT OF LIABILITY
The Appellate Court in Alfano v. Randy's Wooster Street Pizza Shop II, Inc.(fn1) attempted to unscramble a procedurally complicated appeal. The plaintiff brought a claim for injuries after falling on a handicapped ramp while outside of a restaurant owned by one defendant and leased to the other defendant.(fn2) The defendant landlord moved for directed verdict and the trial court instructed the jury that the plaintiff had failed to prove her claim against the landlord, but that the jury could still apportion liability as to the landlord.(fn3) The jury returned a plaintiff's verdict and apportioned 50 percent liability to the plaintiff, 10 percent to the tenant and 40 percent to the landlord.(fn4) The plaintiff filed a motion to set aside the directed verdict for the landlord arguing that she had made out a case against the landlord, and, in the alternative, that the landlord should not have been included on the verdict form for the purposes of apportionment of liability.(fn5) The trial court granted the motion to set aside and the Appellate Court reversed, holding that the plaintiff had failed to plead or prove that the landlord was in control or possession of the premises at the time of the accident.(fn6) The Court also found that the jury should have been permitted to apportion liability as to the landlord since it was consistent with Section 52-572h of the
* Of the New Haven bar.
1 90 Conn. App. 766, 881 A. 2d 379 (2005).
(fn2)Id. at 769. (fn3)Id. at 770-7 1.
4 Id. at 771.
(fn5)Id.
(fn6)Id. at 77 1-74.
CONN. GEN. STAT., Connecticut's apportionment statute, which assured that the tenant would be obligated to the plaintiff only for the portion of her damages commensurate with its level of culpability.(fn7) Query whether a defendant who has no liability to the plaintiff, nonetheless should be included on the verdict form for purposes of apportionment.
II. COLLATERAL SOURCES
In Hassett v. City of New Haven (fn8) the plaintiff, a police
officer with the defendant, sought uninsured motorist damages after being injured while in the course of his duty. The parties stipulated at the courtside trial that the plaintiff incurred medical bills in the amount of $4,130.50 and $4,265.16 in lost wages and overtime, and, based upon these specials, the court awarded $6000 in noneconomic damages. (fn9) The plaintiff through his employment received $3,009.03 for his medical bills, with the remaining bills being forgiven by his health care provider, and $3,300.99 in reimbursement of his lost wages and overtime.(fn10) The first issue was whether the forgiven bills should have been treated as a collateral source under Section 52-225b of the CONN. GEN. STAT., which the court resolved by assuming that forgiven bills are deemed payments to the claimant.(fn11) The court then looked to Section 52-225b, which defines a payment as a collateral source only if it was made by or pursuant to any health, sickness, or automobile accident insurance; or pursuant to any contract or agreement of any group, organization, partnership or corporation, to pay, provide, or reimburse medical costs.(fn12) The court found that as the forgiven bills were a result of a voluntary act, the forgiven bills did not qualify as a collateral source under Section 52-225b.(fn13) The second issue before the court addressed whether amounts paid pursuant to wage
7 Id.at777-78.
8 49 Conn. Supp. 7,8, 858 A. 2d 922 (2004), affirmed, 91 Conn. App. 245,880 A. 2d 975 (2005) (the Appellate Court in a per curiam decision adopted the trial court's decision).
9 Id. at 9.
10 Id.
11 Id. at 9-10.
12 Id. at 10.
13 Id.
continuation plans are to be treated as collateral sources under Section 52-225b.(fn14) The court reviewed the legislative history and concluded that it would be inappropriate to treat the amounts received by the plaintiff from his employer to reimburse him for lost wages and overtime as collateral sources.(fn15)
III. DAMAGES
The case by case analysis set forth by the Supreme Court in Wichers v. Hatch(fn16) to determine the adequacy of a jury award, as a matter of law, has continued to engender, as one would expect, an abundance of decisional law.
In Smith v. Lefebre(fn17) the jury returned a verdict for economic damages only and the defendant declined to accept a court ordered additur. The defendant appealed the trial court's setting aside the verdict and the Appellate Court reversed and ordered that the verdict be reinstated.(fn18) The Court noted that there was conflicting evidence with respect to damages; namely, it was a low speed impact when the plaintiff's airbags did not deploy, the plaintiff did not miss any appreciable amount of time from work, although the plaintiff claimed that she selected a treater out of a phone book, there was evidence that her attorney recommended the treater, and it was disputed as to whether the plaintiff would need surgery and whether she had a bulging or herniated disk.(fn19) The Court noted that the evidence was sufficient to allow for reasonable differences of opinion, and, although the trial court may have come to a different conclusion, the verdict had to stand.(fn20)
In Fileccia v. Nationwide Property and Casualty Insurance Company,(fn21) the Appellate Court came to a different conclusion than in Smith v. Lefebre by finding that the
14 Id. at 10-14.
15 Id. at 13-14.
16 252 Conn. 174,745 A. 2d 789 (2000).
17 92 Conn. App. 417,419-20, 885 A. 2d 1232 (2005).
18 Id. at 427. (fn19)Id . at 426.
20 Id. at 427.
21 92 Conn. App. 481,485-86, 886 A. 2d 461(2005).
jury verdict of economic damages only was inadequate as a matter of law. The plaintiff sustained personal injuries in a motor vehicle accident and, after exhausting the tortfeasor's insurance coverage, made an underinsured motorist claim against the defendant.(fn22) The Court noted that the plaintiff did not have a pre-existing condition, although he did have two subsequent injuries, and that the jury award was internally inconsistent since the jury awarded economic damages for treatment and medications to alleviate pain, yet did not award noneconomic damages.(fn23) Interestingly, the Court in a footnote acknowledged its recent decision in Smith v. Lefebre(fn24) and stated that, under the case-by-case framework required by Wichers v. Hatch,(fn25) the case before it was distinguishable and the correct result was reached in each decision.(fn26)
The Appellate Court in Turner v. Pascarelli(fn27) upheld a verdict awarding medical bills of $3923.77 and only $400 in noneconomic damages. The Court noted that the jury could reasonably have decided that the plaintiff's backache caused him pain that was variable and intermittent, that he may have contributed to his problem by failing to follow a recommendation for more therapy, and that a prior accident may have cast a sufficient shadow over the subject accident to raise a reasonable doubt about the cause of the back injury.(fn28) The Court held that the trial court, which had ordered an additur of $3000, abused its discretion.(fn29)
In Right v. Breen(fn30) the defendant admitted liability at trial and the trial court provided only a plaintiff's verdict form for the jury to execute. The jury returned a plaintiff's verdict, but with no economic or noneconomic damages. The trial court granted the plaintiff's motion to set aside the verdict and for an additur, and awarded $1 in nominal damages, as well as
22 Id. at 484.
23 Id. at 489.
24 Smith, supra note 17.
25 Wichers, supra note 16.
26 Fileccia, supra note 21, at 491, note 8.
27 88 Conn. App. 720,721-22, 871 A. 2d 1044 (2005).
28 Id. at 726-30. (fn29)Id. at 721.
30 88 Conn. App. 583, 584-85, 870 A. 2d 1131, cert. granted in part, 274 Conn.
905, 876 A. 2d 14 (2005).
costs to the plaintiff pursuant to Section 52-257 of the General Statutes.(fn31) The Appellate Court believed that both a plaintiff's and a defendant's verdict form should have been submitted to the jury, however, the Court stated that it was bound by the Supreme Court decisions of Riccio v. Abate(fn32) and Keller v. Carone,(fn33) which held that, when a technical injury has occurred, the plaintiff is entitled to at least nominal damages. (fn34) With respect to the award of costs, the Court stated that the amount of damages was insignificant since the plaintiff was the prevailing party and, as such, he was entitled to costs under Section 52-257.(fn35)
In Gregorio v. Borough of Naugatuck,(fn36) the Appellate Court sustained a verdict for the plaintiffs who sued the defendants in private nuisance for the diminution in the value of their home. The defendants' pump station had caused a backflow of effluent into the plaintiffs' home.(fn37) The plaintiff Robert Gregorio testified that, in his opinion, without the raw sewage overflow every year or two his house was worth $235,000, but, with the flooding of sewage, the house was worthless.(fn38) He further testified that his opinion was based on the price of a house that sold next door and in the neighborhood.(fn39) The Court held that homeowners are permitted to testify as to the diminution in value and fair market value of their property.(fn40)
IV. DEFAMATION
In Chadha v. Charlotte Hungerford Hospital,(fn41) the Supreme Court addressed whether the common law...
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