Tort Developments in 2011
| Citation | Vol. 86 Pg. 28 |
| Pages | 28 |
| Publication year | 2021 |
86 CBJ 28. TORT DEVELOPMENTS IN 2011
Volume 86, No. 1, Pg. 28
March 2012
A significant number of decisions were rendered by the Connecticut Supreme Court and Appellate Court in 2011. As always, substantive and procedural developments that directly or indirectly relate to tort law are the focus of the article. Damages, product liability, professional liability and trial practice are major areas of discussion. Generally each case is covered under a single topic heading, although some cases are reported in more than one area.
American Diamond Exchange, Inc. v. Alpert(fn1) examined whether the evidence presented at trial was adequate to establish the plaintiff's lost profits with reasonable certainty in an action claiming tortious interference with business expectancies. The Supreme Court observed that unlike other torts in which liability gives rise to nominal damages even in the absence of actual loss, the tort of unlawful interference with business relations requires that the plaintiff suffer actual loss.(fn2) The Court stated that although proof of damages with mathematical exactitude is no precondition to recovery, damages must be proved with reasonable certainty.(fn3) Under this standard, loss of profits are recoverable only to the extent that the evidence provides a sufficient basis for estimating the loss with reasonable certainty.(fn4) The trial court had awarded $118,000 in damages, representing the defendant's profit measured by the difference between $334,000 in deposits in the defendant's bank account and $216,000 in debits to that account over the years in question.(fn5) The Supreme Court rejected the use of the defendant's profits as a measure of the plaintiff's damages. The Court noted that the only evidence presented at trial remotely relevant to estimating the plaintiff's lost profits was a statement by the plaintiff's president that the markup on estate jewelry was at a minimum 100 percent, but no documentation of profit margins, such as accounting data of its historical earnings or other evidence of profits on comparable consignment or estate jewelry pieces was presented.(fn6) The Court stated that at a minimum, opinions or estimates of lost profits must be based on objective facts, figures or data from which lost profits can be determined.(fn7) The Court, in reversing and remanding the case, stated that although difficulty in assessing damages is not a reason for declining to award them, the plaintiff still bears the burden of producing evidence to permit the fact-finder to award damages without resort to conjecture or speculation.(fn8)
The propriety of the granting of a motion for remittitur was the dispositive issue in Saleh v. Ribeiro Trucking, LLC.(fn9) The defendant admitted liability for a motor vehicle accident with the plaintiff and the jury returned a verdict of $12,132.31 in economic damages and $687,868 in noneconomic damages for a total award of $700,003.31.(fn10) The defendant filed motions for a new trial, to set aside the verdict and for an order of remittitur as to the noneconomic damages.(fn11) The trial court found that the noneconomic damages were excessive, ordered a remittitur of $508,608 and ordered that if the plaintiff failed to remit the amount, the court would set aside the verdict and order a new trial.(fn12) The Supreme Court reviewed the standards used to determine whether to order a remittitur. The trial court is required to review the evidence in the light of most favorable to sustaining the verdict.(fn13) The test is whether the jury's award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.(fn14) Whether to reduce a jury verdict because it is excessive, as a matter of law, pursuant to General Statutes Section 52-216a(fn15) rests within the discretion of the trial court.(fn16) To assist in review of future remit-titur orders, the Supreme Court, as part of its supervisory authority, stated that in all future cases where a trial court grants a remittitur it must set forth in the memorandum of decision clear, definite and satisfactory reasons for its order.(fn17) The Court, in holding that the trial court should not have ordered a remittitur, stated that the evidence viewed most favorably for the plaintiff revealed that the plaintiff sustained permanent disabilities as a result of the accident, he suffered considerable pain every day, every type of treatment he tried had failed to help, he had a life expectancy of 15.8 years, he had to take substantial amounts of medication and he was no longer able to participate in activities he once enjoyed.(fn18)
Drake v. Bingham(fn19) involved a medical malpractice case and the issue of mitigation of damages. The jury returned a defendant's verdict and, on appeal, the plaintiff argued that the trial court (1) erred in admitting evidence of the minor plaintiff's missed physical therapy appointments, (2) erred in instructing on mitigation of damages and (3) erroneously instructed the jury with a legally insufficient charge on mitigation of damages.(fn20) The Appellate Court rejected the plaintiff's first two contentions, holding that the evidence tended to show that the missed appointments may have caused a degree of aggravation to the minor plaintiff's injuries and further holding that the evidence was sufficient to warrant a jury charge on the doctrine of mitigation of damages.(fn21) The plaintiff fared better with respect to her third argument and the Court found reversible error.(fn22) The Court found that the charge was legally insufficient since the charge did not indicate that the jury was to deduct only that portion of damages attributable to an aggravation or increase in injury caused by the failure to mitigate and that the defendant had the burden to prove such aggravation or increase.(fn23)
After the defendant removed trees and brush from the plaintiff's property, the plaintiff brought suit in trespass in Caciopoli v. Lebowitz.(fn24) On appeal, the defendant argued that General Statutes Section 52-560(fn25) circumscribed the measure of damages and the trial court erred in awarding $150,000 in damages for the diminution in value of the plaintiff's proper-ty.(fn26) The Appellate Court found that the measure of damages utilized by the trial court was correct, stating that the proper measure of damages is either the market value of the tree, once severed from the soil, or the diminution in the market value of the plaintiff's real property.(fn27) The Court stated that Section 52-560 amplifies the measure of damages in one category of damages, but did not preempt and eliminate other common-law remedies for timber trespass.(fn28)
Mara v. Otto(fn29) reminds practitioners that statements made to the police, such as those made by the defendant who reported to the Greenwich police department that the plaintiff, a dentist, had sexually assaulted her while she was under the effects of nitrous oxide, are entitled to a qualified privilege and that in order for a plaintiff to prevail in a defamation case where the defendant is entitled to a qualified privilege he needs to prove that the defendant made the statement with malice. The defendant filed a motion for summary judgment, supported by her own affidavit attesting that her statements were truthful and were not made with malice.(fn30) The plaintiff opposed the motion by submitting his own affidavits, stating that the defendant's affidavit was patently false but failing to provide any information regarding malice.(fn31) The Appellate Court affirmed the summary judgment entered in favor of the defendant, holding that the plaintiff's affidavits offered no admissible evidence from which the trial court could have concluded that a genuine issue of material fact existed as to whether the defendant acted with malice.(fn32)
Frandy v. Commissioner of Transportation(fn33) reversed the judgment of the trial court and remanded the case with direction to grant the defendant's motion to dismiss the complaint for lack of subject matter jurisdiction. The Appellate Court held that the plaintiff failed to file proper notice pursuant to General Statutes Section 13a-144(fn34) and because defective notice implicates sovereign immunity the court was deprived of subject matter jurisdiction.(fn35) The notice stated that the plaintiff's injuries were caused by "the defective condition of the pavement which caused her to be thrown from her bicy-cle."(fn36) The Court held that since the notice failed to specify the precise nature of the claimed defect, the description patently failed to meet the statutory requirements.(fn37)
The Appellate Court in two cases provided greater clarity as to the definition of an "intoxicated person" under General Statutes Section 30-102,(fn38) Connecticut's Dram Shop Act. O'Dell v. Kozee(fn39) reversed a judgment entered in favor of a plaintiff, holding that in order to qualify as intoxicated pursuant to Section 30-102, an individual must exhibit some type of physical symptoms in a way that an observer reasonably could perceive that the individual was under the influence of alcohol to some noticeable extent. Although the operator of the vehicle in which the plaintiff's decedent was a passenger admitted that he was drunk and that he was served an alcoholic beverage by the defendant's bartender on at least one occasion while he was drunk, he exhibited no physical signs of intoxication such as difficulty walking, slurring of speech, or loud or boisterous behavior.(fn40) The Court disagreed with the plaintiff's contention that there was sufficient...
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