Tort Developments in 2010

• Jurisdiction: Connecticut,United States
• Publication year: 2021
• Citation: Vol. 85 Pg. 1
• Pages: 1

Connecticut Bar JournalVolume 85.

85 CBJ 1. TORT DEVELOPMENTS IN 2010

Connecticut Bar Journal
Volume 85, No. 1, Pg. 1
March 2011

TORT DEVELOPMENTS IN 2010

By James E. Wildes(fn*)

The Connecticut Supreme Court and Appellate Court issued numerous decisions in 2010. Substantive and procedural developments that directly or indirectly relate to tort law are the focus of the article. Premises liability, damages, governmental immunity, professional liability and trial practice figure prominently. Several cases discussed expert witness issues. Some cases could have been reported in more than one area but to avoid redundancy each case was covered under a single topic heading. Unfortunately, some cases had to be overlooked or treated in a more cursory manner due to space restrictions.

I. Animal Liability

Giacalone v. Housing Authority of the Town of Walling-ford(fn1) addressed whether a common-law negligence claim for injuries sustained from a dog bite could be brought by a tenant against her landlord where the landlord was not the owner or keeper of the dog. The trial court struck the complaint even though the plaintiff alleged that the defendant landlord knew that another tenant owned the dog and that the defendant knew that the dog was dangerous and aggres-sive.(fn2) On limited grounds that parallel Auster v. Norwalk United Methodist Church,(fn3) the Appellate Court reversed, holding a common-law negligence claim brought against a landlord in a dog bite case should not be stricken as insufficient merely because the landlord was not alleged to be the owner or keeper of the dog.(fn4) The Court noted that the Supreme Court in Auster remanded the case to allow the plaintiff the opportunity to establish a negligence claim.(fn5)

II. Conversion And Theft

In Coster v. Duquette,(fn6) the plaintiff, a university student, sued the defendant, another university student, for conversion of his final paper and the defendant filed a counterclaim for conversion of her final paper. After a trial to the court, the court entered judgment for the plaintiff on his conversion claim and also for the plaintiff on the counter-claim.(fn7) Before reaching the merits of the defendant's contentions, the Appellate Court summarized the law of conversion as follows: The tort of conversion occurs when one, without authorization, assumes and exercises ownership over property belonging to another, to the exclusion of the owner's rights.(fn8) The Court stated that to establish a case of conversion, the plaintiff must prove that (1) the material at issue belonged to the plaintiff, (2) the defendant deprived the plaintiff of that material for an indefinite period of time, (3) the defendant's conduct was unauthorized and (4) the defendant's conduct harmed the plaintiff.(fn9) The Court rejected the defendant's argument that the trial court erred in finding for the plaintiff.(fn10) Applying the clearly erroneous standard of review, the Court concluded that the trial court's findings were adequately supported by the evidence.(fn11)

Stuart v. Stuart(fn12) determined that the proper standard of proof in a statutory theft claim brought pursuant to General Statutes Section 52-5641(fn3) is the preponderance of the evidence, as opposed to the clear and convincing standard of proof.

III. Damages

The Appellate Court in Rua v. Kirby(fn14) found no error in the trial court's refusal to charge the jury that it must "take the plaintiff as he is" and that the defendants were responsible for all of the injuries proximately caused by their negligence, even if the plaintiff had a pre-existing condition that would cause the injuries to be more severe. At trial, the plaintiff offered evidence that he had suffered injuries to his back as a result of the accident.(fn15) The plaintiff also offered evidence that he had a pre-existing condition, specifically, degenerative disc disease.(fn16) The Appellate Court held that the trial court did not err in not giving the requested instruction since there was no evidence that the pre-existing condition was aggravated by the motor vehicle accident or that it had any effect on the claimed injuries.(fn17)

In Silva v. Walgreen Company,(fn18) the Appellate Court reversed the trial court for ordering an additur as to noneco-nomic damages. The jury returned a verdict against the defendant for giving the plaintiff the wrong prescription and awarded $876.13 in economic damages, reduced by ten percent comparative negligence, but no noneconomic dam-ages.(fn19) The Court stated that an award of economic damages only is not inadequate, as a matter of law; rather, the jury's decision on such occasions is best tested in light of the circumstances of the particular case.(fn20) The Court noted that plaintiff's injuries were contested and that the jury was entitled to accept or reject, in whole or in part, evidence offer by either party.(fn21) The Court observed that the defendant's medical expert opined that the plaintiff did not suffer from post-traumatic stress disorder and that it was not unreasonable for the jury to find that the plaintiff's treatment was related to pre-existing mental health issues and, therefore, there was evidence to support the jury's verdict.(fn22)

Deas v. Diaz(fn23) affirmed the trial court's denial of the defendant's motions for remittitur and to set aside the verdict in favor of the plaintiff. The jury awarded economic damages of $19,116.50, consisting of $4,116.50 in past medical bills and $15,000 in future medical expenses, as well as $25,500 in noneconomic damages.(fn24) After reviewing Connecticut case law and General Statutes Section 52-216a,(fn25) the Appellate Court distilled the standard of review as follows: The trial court's decision to deny or grant a motion for remittitur because it is excessive, as a matter of law, is entitled to plenary review on appeal and the trial court's decision as to the amount of the remittitur, if ordered, should be analyzed under an abuse of discretion standard.(fn26) The Appellate Court rejected the defendant's argument that the awards of economic damages and noneconomic damages were excessive as a matter of law.(fn27)

IV. Defamation

The pro se plaintiff in Knize v. Knize(fn28) confused the standards of proof in his defamation case against his former wife. on appeal, the plaintiff maintained that the standard of proof to be used by the jury should have been clear and convincing evidence for it to find criminal drug use by the plaintiff.(fn29) In affirming the denial of the plaintiff's motion to set aside the verdict for the defendant, the Appellate Court noted that the issue was not whether the plaintiff had violated criminal statutes related to drug use but whether the jury by a preponderance of the evidence could find that the defendant had made defamatory statements.(fn30)

V. Defective Highway

Nikiel v. Turner(fn31) affirmed the trial court's jury charge in an action brought under General Statutes Section 13a-149,(fn32) Connecticut's municipal highway defect statute. Notwith standing an adjacent sidewalk, the plaintiff elected to walk in the street and then tripped and fell.(fn33) The court charged the jury on General Statutes Section 14-300c(a);(fn34) specifically, the court charged that if it found that there was a sidewalk adjacent to the street where the plaintiff fell and it was practical for the plaintiff to use the sidewalk, then the plaintiff was negligent per se and could not prove that the alleged defect was the sole proximate cause of the plaintiff's injuries.(fn35) The Appellate Court found that because Section 13a-149 requires the plaintiff to prove freedom from contributory negligence, the trial court correctly instructed the jury that a finding of noncompliance with Section 14-300c(a) precludes recovery under Section 13a-149.(fn36)

Bartlett v. Metropolitan District Commission(fn37) involved a plaintiff who stepped into an allegedly improperly positioned storm drain, causing him to sustain injuries. The central question was whether the plaintiff's claim, as a matter of law, was controlled by General Statutes Section 13a-149 and, accordingly, required the plaintiff to provide notice of his intent to commence suit within ninety days of the alleged injury.(fn38) The Appellate Court concluded that the alleged storm drain cover located on the sidewalk was a defect within the meaning of Section 13a-149 since it was reasonable to anticipate that the public would encounter the drain in the ordinary course of travel.(fn39) The Court affirmed the trial court's granting of the defendant's motion to dismiss based on a lack of subject matter jurisdiction.(fn40)

VI. Governmental Immunity

Picco v. Town of Voluntown(fn41) held that General Statutes Section 52-557n(a)(1)(C)(fn42) requires the plaintiff to allege that the defendants by a "positive act" created the claimed nuisance in order for governmental immunity to be waived. The plaintiffs alleged that a portion of a tree fell onto one of the plaintiffs.(fn43) The Supreme Court found the plaintiffs' allegations legally insufficient; specifically, the plaintiffs alleged that the defendants ordered an evaluation of the tree and that the tree's defects and dangerous condition were caused by natural tendencies.(fn44)

The Supreme Court in Bonington v. Town of Westport(fn45) affirmed the summary judgment entered in favor of the defendants, the Town of westport, the town's planning and zoning department, the department's director, the town's zoning enforcement officer, and the town's zoning enforcement inspector. The plaintiffs alleged that they had been forced to initiate legal action against abutting property owners at great expense because the defendants were negligent in their methods of inspection or lack thereof and their continued failure to enforce or even rule on claimed violations of zoning regulations.(fn46) The defendants argued...