84 CBJ 185. TORT DEVELOPMENTS IN 2009.

• Author: By James E. Wildes

Connecticut Bar Journal

Volume 84.

84 CBJ 185.

TORT DEVELOPMENTS IN 2009

Connecticut Bar JournalVolume 84, No. 3, Pg. 185September 2010TORT DEVELOPMENTS IN 2009By James E. Wildes(fn*)The Connecticut Supreme Court and Appellate Court issued an abundance of decisions, which required that some cases had to be omitted or treated in a more cursory fashion, due to space limitations. The volume of cases and the varied factual scenarios that give rise to tort litigation provide confidence that the development of tort law will not be stunted by the well documented fact that there are fewer civil cases going to verdict or judgment. The focus of the article, as in the past, is on substantive developments that directly or indirectly relate to tort law. This year a new topic of trial practice has been included for those cases that arose in tort litigation, but do not specifically address a substantive issue. Damages, governmental immunity, product liability and professional liability are well represented, as always.

1. Apportionment

   Tocco v. Wesleyan University(fn1) held that the trial court properly dismissed an apportionment complaint for lack of personal jurisdiction for failure to make proper service. The plaintiff pled over against a nonappearing apportionment defendant by mailing a copy of the complaint to the apportionment defendant pursuant to General Statutes Section 52-102b(d)(fn2) rather than serving the apportionment defendant pursuant to Practice Book Sections 10-12(c) and 10-13.(fn3) The Appellate Court first observed that the rules of statutory construction apply with equal force to interpretations of the rules of practice.(fn4) The court held that Sections 10-12(c) and 10-13 require that when a party has not appeared, a claim must be served in the same manner as the original complaint.(fn5)

2. Damages

   The Supreme Court in Earlington v. Anastasi(fn6) remanded the case because the trial court failed to order a remittitur of economic damages awarded to the plaintiff. At trial, the plaintiffs presented evidence of economic damages through the testimony of a rehabilitation expert and an economist who collectively opined that the value of the lost earning capacity was $569,519 and that the value of future care costs was $524,355 for a total discounted after tax economic loss of $1,045,874.(fn7) Notwithstanding the evidence of economic damages presented by the plaintiffs, the jury awarded $1,588,000 in economic damages.(fn8) The court stated that a jury award not supported by the evidence cannot stand and, accordingly, remanded the case for remittitur or, if the plaintiffs failed to file a remittitur, a new trial was ordered limited to the issue of economic damages.(fn9)

   The issue of the adequacy of jury verdicts made its way down the familiar path to the Appellate Court. Benedetto v. Zaku(fn10) affirmed the trial court's setting aside the verdict and ordering a new trial after the defendant underinsured motorist carrier refused to accept an additur. The jury awarded $8,872.14 in past medical expenses and $50,000 in future medical expenses, but did not award any noneconomic dam-ages.(fn11) The court stated that the jury's award of past and future medical expenses was inconsistent with the jury's finding that the accident did not cause any pain and suffering or permanent injury.(fn12) The court recited the following facts in support of its decision. Although the parties' expert witnesses disagreed as to the extent of injuries and their relationship to the subject accident or a preexisting condition, the defendant's expert found that the plaintiff was asymptomatic prior to the subject accident and that the accident caused approximately 25 percent of the plaintiff's pain and that the plaintiff would get worse with time.(fn13)

   In Saleh v. Ribeiro Trucking, LLC,(fn14) the Appellate Court reversed the judgment of the trial court and remanded the case with direction to reinstate the jury verdict of $12,132.31 in economic damages and $687,868 in noneconomic damages. The trial court granted the defendant's motion for remittitur and reduced the verdict by $503,608.(fn15) The Appellate Court noted that, pursuant to General Statutes Section 52-216a,(fn16) the decision whether to reduce a verdict because it is excessive, as a matter of law, rests solely within the discretion of the trial court and that the relevant inquiry is whether the verdict falls within the necessarily uncertain limits of fair and reasonable compensation or whether it so shocks the conscience as to compel the conclusion that it is due to partiality, prejudice or mistake.(fn17) The court observed that the trial court, in reducing the verdict, attempted to attach a mathematical formula to what should have been awarded.(fn18) The court found that the trial court failed to review the evidence in the light most favorable to the plaintiff and to determine whether the evidence reasonably supported the jury's verdict.(fn19)

   The plaintiffs in Greci v. Parks,(fn20) a husband and wife, argued that the trial court improperly denied their motions to set aside because the verdicts were inconsistent; claiming that the jury was required to return a plaintiff's verdict on the loss of consortium claim where the jury had awarded the injured spouse economic and noneconomic damages for his bodily injury claim. The Appellate Court disagreed with the plaintiffs, noting that the plaintiffs cited no authority that a jury must award damages for loss of consortium if it awards damages to the injured spouse.(fn21)

3. Defamation

   The plaintiff in Gambardella v. Apple Health Care, Inc.(fn22) sued the defendants for defamation, alleging that they had communicated false statements of theft to others in connection with her employment termination. The defendants appealed from the judgment of the trial court, arguing that the court improperly rejected their defense of qualified privilege of intracorporate communications because it failed to apply an actual malice standard in determining that the defendants lost the privilege and because there was insufficient evidence to support a finding of actual malice.(fn23) The Supreme Court noted that it had recognized a qualified privilege for intra-corporate communications in the context of employment decisions.(fn24) Pursuant to this rule, communications between managers regarding the review of an employee's job performance and the preparation of documents regarding an employee's termination are protected by a qualified immuni-ty.(fn25) Generally, a qualified privilege is defeated if it can be established that the holder of the privilege acted with actual malice - the publication of a false statement with actual knowledge of falsity or reckless disregard for its truth - or if there is malice in fact - the publication of a false statement with bad faith or improper motive.(fn26) The court further held that the trial court's finding that the defendants acted with actual malice in publishing the defamatory statement was supported by the evidence and, accordingly, was not clearly erroneous.(fn27)

   In Ma'Ayergi v. and Associates, LLC v. Pro Search, Inc.,(fn28) the Appellate Court agreed with the plaintiff Hamza Ma'Ayergi's argument that the dismissal of his defamation claim for lack of standing to sue in his individual capacity was made in error. The court agreed that the plaintiff had properly pleaded defamation on behalf of himself since he alleged that the defendants told perspective clients that he was incompetent and that he could not properly perform abstract of title work.(fn29) The court noted that the fact the plaintiff was the sole member of a limited liability company should not interfere with his right to bring a defamation action against parties that slandered him and ruined his professional reputation.(fn30)

4. Defective Highway

   In Machado v. City of Hartford,(fn31) the Supreme Court provided a nuanced disquisition on General Statutes Section 13a-149(fn32) and the sole proximate cause doctrine. The plaintiff sustained injuries when the car that she was operating struck a depression in the road that had developed as a result of repair work being performed by an independent contractor retained by the defendant.(fn33) After a courtside trial, the court ruled in favor of the plaintiff, finding that the plaintiff was not contributorily negligent and that the defendant was 100 percent responsible for the negligence of the independent contractor.(fn34) On appeal, the Supreme Court found that the defendant was the party bound to maintain the roads under Section 13a-149 since the defendant had a nondelegable duty to maintain the roads pursuant to Section 13a-99.(fn35) The court further held that the defect in the present case was the sole proximate cause of the plaintiff's injuries.(fn36) with respect to this holding, the court explained that in order to recover under Section 13a-149 the plaintiff must prove, inter alia, that the defect was the sole proximate cause of the injuries and damages claimed.(fn37) Liability may be defeated under Section 13a-149 where the plaintiff is contributorily negligent or where the negligence of a third party is also responsible for the plaintiff's injuries or where other independent nontortious factors contributed to the injuries.(fn38) The court further clarified that it is not the mere existence of third-party negligence that defeats liability under Section 13a-149, rather, it is the existence of any intervening...