Tort Developments in 2008
| Publication year | 2021 |
| Pages | 51 |
83 CBJ 51. TORT DEVELOPMENTS IN 2008
Volume 83, No. 1, Pg. 51
MARCH 2009
There was no shortage of law to review during this past year. Due to the amount of decisions, not every case or development can be reviewed or discussed in depth. As in past years, the focus of the article is on substantive and procedural developments that directly or indirectly relate to tort law. Some areas of law, such as construction and professional liability, are well represented; while other areas, including apportionment and uninsured motorist, did not yield significant decisions.
The Supreme Court in Auster v. Norwalk United Methodist Church (fn1) stated that a nonowner of a dog cannot be held strictly liable for damage done by the dog to another in the absence of evidence that the nonowner was responsible for maintaining and controlling the dog at the time that the damage was done. Generally, such proof will consist of evidence that the nonowner was feeding, giving water to, exercising, sheltering or otherwise caring for the dog when the incident occurred.(fn2) A landlord is not a keeper of a dog merely because a landlord acquiesces in the presence of the dog on leased premises, or because a landlord has the authority to require that the dog be removed from the premises, or even because a landlord has the authority to require that certain conditions be placed on the use of the dog by its owner.(fn3) The Court further stated that evidence of ownership of the premises where the dog lives is not enough to hold a landlord, or other property owner, strictly liable, and this is true whether the dog's owner is a live-in employee, a tenant, or a friend of the landlord.(fn4) With respect to an evidentiary issue that arose at trial, the Court held that the admission of evidence that the defendant was covered by liability insurance was both improper and prejudicial.(fn5)
In Allen v. Cox(fn6) the Supreme Court reversed the trial court's granting of summary judgment in favor of the defendant cat owner. The defendants argued that since their cat had never attacked a person before it attacked the plaintiff, they had no duty to the plaintiff since the attack was not foresee-able.(fn7) The Court held that knowledge of the cat's vicious propensities is not, in and of itself, sufficient to render the plaintiff's injuries foreseeable.(fn8) However, the Court further held that when a cat has a propensity to attack other cats, knowledge of that propensity may render the owner liable for injuries to people that foreseeably result from such behavior and, therefore, summary judgment should not have entered, under the facts presented, as there was a question of fact as to whether the plaintiff's injuries were foreseeable.(fn9)
In Mann v. Regan(fn10) the plaintiff was bitten in the face by the defendant's dog while the defendant traveled out of state and the dog remained at the plaintiff's house. After the jury returned a verdict against the defendant based upon common-law negligence, the defendant appealed, arguing that the jury instructions were improper.(fn11) The Appellate Court rejected the defendant's contention that the trial court's usage of the word "dangerous," rather than "vicious," to describe the propensities of the dog was improper since the adjective "dangerous" conveyed the same general principle as requested by the defendant.(fn12)
Pelletier v. Sordoni/Skanska Construction Co.(fn13) returned to the Supreme Court after a trial before a jury which had returned a verdict in favor of the plaintiff. The defendant general contractor argued, on appeal, that the trial court improperly concluded that it owed the plaintiff a nondelegable duty of care under the building code to inspect all welds at the site.(fn14) The Court agreed with the defendant, concluding that the defendant did not have a nondelegable duty to inspect all welds, but, rather it had a duty to "provide" such inspections and that it did not have a duty to inspect welds fabricated on the premises of the fabrication shop when the fabricator maintained an agreement with an approved independent inspection or quality control agency to conduct periodic shop inspec-tions.(fn15) The plaintiff presented several arguments in his cross appeal. The plaintiff's principal argument was that the trial court erred in declining to give jury instructions on common-law negligence.(fn16) The Court found, as a matter of law, that the defendant had no legal duty to the plaintiff under principles of common-law negligence because the plaintiff's injury was not foreseeable; specifically, no ordinary person in the defendant's position, knowing what it knew or should have known, could have foreseen that the plaintiff would be injured because the defective weld had not been inspected.(fn17)
In Archambault v. Soneco/Northeastern, Inc.(fn18) the plaintiff, an employee of a subcontractor Soneco/Northeastern, Inc. (Soneco), was injured on a construction site when a trench that he was excavating collapsed.(fn19) The plaintiff obtained a verdict against the defendant general contractor, Konover Construction Corporation (Konover), and the defendant appealed from the judgment rendered thereon, raising several important issues.(fn20) Konover first argued that the trial court improperly precluded evidence and argument as to Soneco's alleged negligence on the basis that Soneco was not a party.(fn21) The Supreme Court stated that it had previously determined that, in general, a defendant has the right under a general denial to introduce evidence that the negligence of another was the sole proximate cause of the plaintiff's injury.(fn22) The Court adopted the principle that a defendant is entitled to assert, under a general denial, that the negligence of the plaintiff's employer who is not a party to the action is the sole proximate cause of the plaintiff's injuries and, accordingly, ordered a new trial.(fn23) Konover next argued that the trial court erred in refusing to charge on the doctrine of superseding cause.(fn24) The Court disagreed with the defendant, holding that Connecticut had abandoned the superseding cause doctrine and, consequently, the defendant was not entitled to its requested charge.(fn25) Konover's last argument was that the trial court improperly instructed the jury that Konover had a nondelegable duty to the plaintiff to ensure a safe work site that precluded the jury from considering Soneco's negligence in determining liability.(fn26) The Court noted that, as a general rule, employers, including general contractors as employers of independent subcontractors, are not liable for the negligence of its independent contractors.(fn27 )The Court noted that there were exceptions to the general rule, including where the general contractor reserved the right of control over the subcontractor or the manner of doing the work or assumed the right of control.(fn28) The Court noted that Konover's overall responsibility for safety on the work site did not necessarily translate into a nondelegable duty.(fn29 )The Court further stated that Konover's safety manual was not the source of a contractual or legal duty to provide a safe work site and was merely an informational tool.(fn30) The Court concluded, as a matter of law, that Soneco exercised control over excavation of the trenches, rather than Konover, and, therefore, the jury charges were improper.(fn31)
In Royal Indemnity Company v. Terra Firma, Inc.(fn32) the principal issue was whether Konover Construction Corporation (Konover), the general contractor, was entitled to coverage as an "additional insured" under an insurance policy procured by Soneco/Northeastern, Inc. (Soneco), a subcontractor, pursuant to a construction agreement between Konover and Soneco. The agreement provided: (1) that Soneco would indemnify Konover for damages caused, in whole or in part, by the negligence of Soneco; and (2) that Soneco was required to procure general liability insurance and name Konover as an additional insured.(fn33) The plaintiff disclaimed both the duty to indemnify and the duty to defend Konover and brought the instant declaratory judgment action to determine whether Konover was an additional insured under the policy it issued to Soneco.(fn34) The plaintiff's policy provided, inter alia, that an insured included any person or organization that Soneco was required by a written agreement to name as an insured but only with respect to liability arising out of Soneco's work.(fn35) The plaintiff insurer argued that Konover was not an additional insured since its liability did not arise out of Soneco's work.(fn36) Conversely, Konover contended that the trench that collapsed was Soneco's work since it was part of what Soneco's was obligated to do under its contract with Konover.(fn37) The court remarked that it was generally understood that it was sufficient to show only that the accident or injury was connected with, had its origins in, grew out of, flowed from, or was incident to the occurrence, in order for liability for an accident or an injury to arise out of an occurrence.(fn38) The court found that the trenching was part of Soneco's work and the injuries to the employees of Soneco occurred in the performance of that work.(fn39) The court further commented that General Statutes Section 52-572k prohibits clauses purporting to require subcontractors to indemnify and hold harmless general contractors for the general contractor's negligence, but that this section does not prohibit general contractors from being included as an additional insured.(fn40) The court found that Konover was an additional insured under the policy issued by the plaintiff.(fn41)
In Wasko v. Farley(fn42) the Appellate Court affirmed the trial court's refusal to charge the...
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