Tort Developments in 2012
| Publication year | 2021 |
| Pages | 28 |
James E. Wildes [*]
The Connecticut Supreme Court and Appellate Court rendered numerous decisions in 2012. This article will concentrate on substantive and procedural developments that directly or indirectly relate to tort law. Professional liability, governmental immunity, negligence, product liability, statute of limitations and trial practice are significant areas of discussion.
I. Agency
In L and V Contractors, LLC v. Heritage Warranty Insurance Risk Retention Group, Inc., [1] the defendant AAMCO Transmissions, Inc. (AAMCO) appealed from the judgment of the trial court finding it vicariously liable to the plaintiff for the actions of Drive Train Unlimited, LLC (Drive Train). After the plaintiffs vehicle had been sold by Drive Train, the plaintiff sued the named defendant, Drive Train and AAMCO for statutory theft under General Statutes Section 52-564, conversion, violation of the Connecticut Unfair Trade Practices Act, intentional misrepresentation and negligent misrepresentation.[2] The claims against AAMCO asserted that Drive Train was the agent of AAMCO.[3] The Appellate Court began by stating that an agency relationship requires (1) a manifestation by the principal that the agent will act for him, (2) acceptance by the agent of the undertaking, and (3) an understanding between the parties that the principal will be in control of the undertaking.[4] The Court stated that the plaintiff failed to introduce evidence that AAMCO controlled any part of the business of Drive Train.[5] The Court found that evidence that Drive Train in exchange for the use of AAMCO's name would pay a percentage of its sales to AAMCO was not evidence that AAMCO exercised any control of Drive Train.[6] The Court also disagreed with the plaintiffs argument that AAMCO failed to produce a representative to testify about any franchise relationship with Drive Train or to produce the franchise agreement, noting that the plaintiff had the burden of proof to prove the existence of an agency relationship.[7]The Court next addressed the trial court's finding that Drive Train had apparent authority to act as AAMCO's agent. The Court stated that apparent authority is derived not from the acts of the agent but from the deliberate or inadvertent acts of the principal.[8] The Court continued in stating that there are two elements of apparent authority: (1) it must appear from the acts of the principal that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted him to act as having such authority and (2) the party seeking to bind the principal must have acted in good faith reliance on that appearance of authority.[9] The Court further stated that Connecticut had not applied the doctrine of apparent authority to allow a principal to be held liable to a third person who was harmed by the tortious conduct of a person held out as the principal's agent.[10] Inasmuch as the plaintiffs theories against AAMCO sounded in tort and were predicated on the tortious conduct of Drive Train, the Court held that the trial court erred in finding that Drive Train had apparent authority to bind AAMCO.[11]
II. Animal Liability
Giacalone v. Housing Authority of the Town of Wallingford[12] answered whether a landlord may be held liable, under a common-law theory of premises liability, for injuries sustained by a tenant after being bitten by a dog owned by a fellow tenant and kept on premises owned by the landlord, when the landlord knew of the dog's dangerous propensities, but did not have direct care of, or control over, the dog. The Supreme Court concluded that a landlord's common-law duty to alleviate known dangers includes dangers posed by vicious dogs.[13] The Court rejected the defendant's argument that only the owner or keeper of a dog may be held liable for injuries caused by a dog.[14]
In Atkinson v. Santore, [15] the plaintiff brought the action under General Statutes Section 22-357, [16] commonly referred to as the dog bite statute, claiming she was potentially exposed to the rabies virus due to her contact with the defendant homeowner's dogs after she found them in the vicinity of a rabid raccoon in the defendant's yard. The trial court granted the defendant's motion for summary judgment because the only conduct by which the dogs might be claimed to have exposed the plaintiff to the rabies virus was entirely passive.[17] The Appellate Court affirmed, explaining that strict liability under the dog bite statute is imposed on dog owners and keepers due to volitional and vicious or mischievous conduct and not where the damage is caused by a dog's merely passive or innocent or involuntary behavior.[18] The Court emphasized that this limitation was rooted in the purpose of the statute, which was to assign responsibility f or the special dangers arising from the natural behavior of dogs to those who expose others to the special dangers by owning or keeping dogs.[19]
Vendrella v. Astriab Family Limited Partnership, [20] in reversing the trial court's granting of the defendant's summary judgment on the basis that there was no genuine issue of material fact that the defendant's horse had a tendency to bite people or other horses, held that a genuine issue of fact existed as to whether horses as a class possess a natural tendency to bite, possibly causing injury to a person, even if a particular horse had not previously displayed that propensity. The Appellate Court agreed with the plaintiffs contention that a party may in certain circumstances establish the requisite notice in a negligence case against the owner or keeper of a domestic animal by proof of the natural propensities of that species.[21]
III. Collateral Sources
General Statutes Section 52-225a(b) was amended by P.A. 12-142, Section 2 (Reg. Sess.), effective October 1, 2012, and applicable to all actions pending on or filed on or after said date. The amendment states that for purposes of this subsection, evidence that a physician or other designated health care provider accepted an amount less than the total amount of any bill generated by such physician or other provider or evidence that an insurer paid less than the total amount of any bill generated by such physician or provider shall be admissible as evidence of the total amount of collateral sources which have been paid for the benefit of the claimant as of the date the court enters judgment.
IV. Damages
A year cannot go by where the adequacy of verdicts does not result in an appeal and this past year was no exception. In Johnson v. Pike, [22] the defendant argued that a verdict award of $50, 000 in noneconomic damages and $34, 222 in lost wages, where the past medical bills were $1, 762, was excessive as a matter of law. The Appellate Court set forth the standard for the trial court with respect to a motion for remittitur. The evidence is reviewed in the light most favorable to sustaining the verdict.[23] The issue is whether the jury's award falls somewhere within the necessarily uncertain limits of just compensation or whether the size of the verdict so shocks the sense of justice to compel a conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.[24] Further, the decision whether to reduce the verdict because it is excessive as a matter of law within the meaning of General Statutes Section 52-216a[25] rests solely within the discretion of the trial court.[26] Additionally, the standard of review of a trial court's decision to grant or deny a motion to set aside a verdict as excessive as a matter of law is that of an abuse of discretion.[27] The Court disagreed with the defendant, observing that the award of $50, 000 in noneconomic damages did not shock the sense of justice since the plaintiff had a life expectancy of eighteen years, he continued to have difficulty with his wrist, he had trouble sleeping and his ability to engage in recreational activities had been affected.[28]
In Hardie v. Mistriel, [29] the defendant mistakenly removed trees from the plaintiffs property. The trial court found in favor of the plaintiff on a trespass claim and found t hat the diminution in value to the plaintiffs property was measured by the cost of cleanup and the addition of seven new trees.[30]The Appellate Court agreed with the defendant that the plaintiff introduced evidence only of replacement cost as a measure of damages and such evidence was insufficient to support the damage award.[31] The Court summarized the law as follows. If the purpose of the action is to recover the value of the trees as chattels, the measure of damages is the market value of the trees for timber or fuel.[32] If the injury is to the land from the destruction of the trees, the measure of damages is the diminution in the market value of the land.[33] The Court also noted that General Statutes Section 52-560[34] allows the court to award the reasonable value of the trees if the defendant mistakenly believed that the trees were on his land.[35] The Court reversed the judgment only as to the award of damages and remanded with direction to render judgment awarding nominal damages.[36]
V. Defective Highway
Himmelstein v. Town of Windsor[37]considered whether the Appellate Court properly affirmed the trial court's striking the nuisance claim against the defendant town because General Statutes Section 13a-149[38] was the plaintiffs exclusive remedy against the town, when it also affirmed the summary judgment entered for the town because the plaintiff had failed to establish an essential element of a highway defect claim under Section 13a-149. The plaintiff alleged that while he was riding a bicycle in the town of Windsor he struck a Windsor police department radar trailer that had been placed in the travel portion of the road.[39]The Supreme Court held that the...
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