Tort Developments in 2006
| Publication year | 2021 |
| Pages | 63 |
81 CBJ 63. TORT DEVELOPMENTS IN 2006
Volume 81, No. 1
March 2007
This past year included significant case law development, but, unlike 2005, there were few significant 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 decisions be omitted.
The Supreme Court in Smith v. Greenwich1 provided at least some clarity to the nondelegable duty doctrine in premises liability cases and apportionment of liability under General Statutes Section 52-572h (c). The plaintiff was injured when she slipped on some ice on a public sidewalk owned by the named defendant, and abutting property owned by another defendant.2 The plaintiff alleged that the abutting owner created a dangerous condition and a nuisance by piling snow at the base of its driveway adjoining the public sidewalk, so that the runoff from melting snow created an icy hazard.3 The abutting property owner apportioned in the snow plow contractor and alleged that, to the extent that the plaintiff was injured, the apportionment defendant caused the injuries through his negligence.4 The plaintiff amended her complaint to assert a direct claim sounding in negligence against the snow removal contractor.5 During jury selection the plaintiff withdrew the claim against the town and the snow removal contractor.6 The trial court during the trial granted the snow removal contractor's motion for summary judgment on the apportionment claim based on the Supreme Court case of Gazo v. Stamford.7 The jury returned a plaintiff's verdict against the abutting owner and assigned 30 percent comparative negligence to the plaintiff.8 The Supreme Court held that the trial court improperly declined to instruct the jury that the abutting owner could not be liable unless the plaintiff could show that the abutting owner's positive act altered the natural flow of water from its property.9 However, the Court found that the error was harmless since the jury instruction on this point only attached liability to the abutting owner if the jury found that the ice patch on the sidewalk was caused by the abutter's negligent conduct in mounding the snow in a pile.10 The Court further held that the trial court was correct in granting the snow removal contractor's motion for summary judgment and expressly stated that the owner or occupier of premises owes a nondelegable duty to keep the premises safe.11 The Court stated that the nondelegable duty doctrine makes the owner or occupier fully liable to a plaintiff who has been injured regardless of whether the property owner or occupier is actually at fault since the owner or occupier is vicariously liable for the tortious conduct of the contractor.12
The apportionment issues in Carlson v. Waterbury Hospital13 arose out of a medical malpractice action brought by the plaintiff as executrix of her deceased husband's estate and individually for loss of consortium. Two days after elective hip surgery, the decedent died from cardiac arrest caused, at least in part, by the stress from the surgery on his pre-existing but undiagnosed coronary artery disease.14 Over three months before trial, two of the defendants learned that the plaintiff was settling with two other defendants and in response filed a notice of intent to seek an apportionment of liability against one of the settling defendants.15 The trial court refused to allow apportionment and the jury returned a plaintiff's verdict against the two remaining defendants.16 The Supreme Court reversed, holding that the plaintiff received adequate notice of the intention to seek apportionment since the defendants notified the plaintiff of their intent to seek an apportionment of liability soon after they became aware that the plaintiff had settled with another defendant and because the defendants disclosed some of the plaintiff's experts previously disclosed as to the liability of the settling defendant.17 The Court further noted that the trial court should have been guided, as a matter of common law adjudication, by the clearly stated policy reflected in the enactment of General Statutes Section 52-102b.18 The Court held that the defendants were entitled under General Statutes Section 52-572h to pay only their proportionate share of damages.19
The Supreme Court in Right v. Breen,20 in reversing the Appellate Court, held that a plaintiff in a negligence action is not entitled to an award of nominal damages, thereby making the defendant potentially liable for costs when the defendant admits liability but denies having caused the alleged injury, and the tier of fact thereafter concludes that the plaintiff failed to prove that he or she suffered any injury as a result of the defendant's conduct. The plaintiff claimed injuries as a result of having been rear-ended by the defendant.21 The defendant admitted liability, but contended that the plaintiff's injuries were the result of various other vehicle accidents.22 Using a plaintiff's verdict form, the jury returned a verdict of zero economic damages and zero noneconomic damages.23 The trial court granted the plaintiff's motion to set aside the verdict, and for additur, and awarded the plaintiff $1.00, as well as costs under General Statutes Section 52-257.24 The Supreme Court agreed with the defendant that a plaintiff must prove all of the elements of a negligence claim, including causation and actual injury, in order to recover, and therefore, the technical injury concept was inapplicable to a negligence action.25 The Court, in rendering its decision, explicitly overruled the portion of Keller v. Carone26 which stated that a defendant's admission of liability in an action for negligence establishes a technical legal injury for which the plaintiff is entitled to at least nominal damages.27
In Demchak v. City of New Haven,28 the Appellate Court held that the trial court erred by prematurely rendering judgment without affording the defendant the opportunity either to reject or to accept the additur. The plaintiff obtained a verdict in her favor and the jury awarded $1930.50 in economic damages, but zero noneconomic damages.29 The trial court granted the plaintiff's motion for additur and ordered an additur of $2565 in economic damages and $5000 in noneconomic damages.30 The plaintiff accepted the verdict and the trial court rendered judgment for the plaintiff, including the additur.31 The Appellate Court found that, when the trial court entered judgment on the same day that the additur was accepted, it essentially denied the defendant the opportunity to respond to the additur since General Statutes Section 52-228b allows parties a reasonable time in which to accept the additur.32
The measure of damages in an action involving trespass was before the Appellate Court in Robert v. Scarlata.33 The plaintiff and the defendants were owners of contiguous properties.34 The defendants in April 2000 began encroaching upon part of the plaintiff's property by placing a barbecue grill and a portable shed in that area.35 The defendants sold their property in September 2004 and before that time all the encroaching structures were removed.36 The defendants admitted that they trespassed and the trial court awarded $500 in compensatory damages.37 The plaintiff appealed claiming that the trial court improperly determined the damages.38 The Appellate Court stated that the measure of damages was the difference in the value of the land before and after the harm.39 The plaintiff introduced, without contest, an appraisal report by an experienced real estate appraiser that the encroachment reduced the value of the property by $500.40 The Appellate Court affirmed the judgment in the amount of $500, noting that the defendants' invasion of the plaintiff's property was only temporary, that there was no lasting damage, that, the plaintiff was entitled to damages based on lost use value, and that the plaintiff had proven no other damages.41
The Appellate Court in Nunez v. Palmer42 affirmed the trial court's denial of the defendant's motion for a remittitur. The Court found that there was sufficient evidence to sustain the jury's verdict for damages in the amount of $31,000 for the plaintiff's reduced or lost earning capacity, notwithstanding the fact that the plaintiff had a subsequent accident during the course of his employment and he was found to be 100 percent disabled by a workers' compensation commissioner.43 The Court stated that the defendant should be responsible for all of the damages due to the plaintiff's impaired earning capacity without regard to the subsequent workers' compensation award since the defendant should not be entitled to a credit for sums paid from a second nonconcurrent source.44
The Appellate Court in Dlugokecki v. Vieira45 affirmed the granting of the defendant's motion to strike based on the alleged defamatory statements being absolutely privileged. During a public hearing before an inland wetlands commission, the defendant, whose business had a contested application pending, stated that the plaintiff, an adjacent property owner, had a huge interest in the defendant's project and had attempted to extort money from the defendant.46 The Court found that the statements were privileged as they were in some way pertinent to the subject of the controversy since it could be reasonably inferred that the defendant was attempting to discredit the information that the plaintiff furnished by exposing the plaintiff's bias or motives.47
In Victoria Square, LLC v. Glastonbury Citizen,48 the plaintiffs filed a multiple count complaint sounding in defamation, invasion of privacy, and violation of the...
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