2017 Connecticut Appellate Review

CitationVol. 91 Pg. 231
Publication year2021
No. 91 CBJ 231
Connecticut Bar Journal
January 1, 2018

By Wesley W. Horton and Kenneth J. Bartschi [*]

I. Supreme Court

We have occasionally wondered if newspaper publishers, having determined that not much happened yesterday, were ever tempted to run the headline "Not Much Happened Yesterday." Well, that's the way we feel about the decisions of the Connecticut Supreme Court in 2017. In 2016, Justice Peter Zarella fully retired on the last court day of the year, and a flurry of important decisions came out in December for us to discuss last year, along with his legacy. In 2017, Chief Justice Chase Rogers announced that she would fully retire on February 5, 2018. A flurry of important decisions accordingly was released in January 2018, which we plan to discuss next year, along with her legacy.

The most important news about the Supreme Court in 2017 is not any of the decisions but rather its makeup. Lawyers who argued an appeal to it in January 2017 hardly recognized it by December. In March, Solicitor General Gregory DAuria was sworn in to replace Justice Zarella. Over the summer, Justice Carmen Espinosa became a Senior Justice and, in early October, Justice Dennis Eveleigh turned 70, the mandatory retirement age. They both sat in September, Justice Eveleigh for the last time, and, as it turned out, Justice Espinosa for the last time in 2017. So, two more vacancies were created: Appellate Court Judges Raheem Mullins and Maria Arauja Kahn were appointed to the court, and heard their first cases in early November. Since Chief Justice Rogers heard her last appeals in October, any lawyer who argued to the Supreme Court in November or December was addressing quite a different court from the one in January. And, as 2017 ended, it was about to be even more different with a new chief justice and yet another new associate justice.

There were a few significant tort decisions in 2017. Discussing them also gives us an opportunity to appraise Justice Eveleigh's work over the seven years he was on the Supreme Court. His distinctive legacy is his unwavering support for tort victims. We have referred to his views on tort law in the past; 2017 was no exception.

In Sepega v. DeLaura,[1] the defendant had entered his house in violation of a protective order and then barricaded himself. The plaintiff, a police officer, was badly injured while attempting to force open a door. All seven justices agreed that public policy permitted the plaintiffs suit as an exception to the rule barring emergency officers from suing property owners for defects on the property. The concurrences would have limited the exception to the facts of the case.[2] Justice Eveleigh for the 4-3 majority did the opposite, crafting a much broader opening for emergency officers to sue the property owners for negligence.

Justice Eveleigh also was in a 4-2 majority in Williams v. Housing Authority,[3] holding that a municipality's persistent failure to inspect apartments for safety violations in spite of a statutory duty to do so can constitute a reckless disregard for public and safety. The plaintiff was the administrator of the estate of former residents of an apartment in Bridgeport who died in a fire allegedly because the smoke detectors did not work. The majority allowed the case to proceed past summary judgment; Justice Andrew McDonald and Justice Richard Palmer dissented on a procedural ground and also on the basis that such neglect does not constitute reckless disregard.[4]

Yet another tort case finding Justice Eveleigh in the pro-plaintiff majority is Munn v. Hotchkiss School.[5] The plaintiff went on a school-sponsored trip to China and contracted tick-borne encephalitis. She sued the school for negligence in federal court, receiving a $41,750,000 verdict. The Second Circuit certified issues of duty and excessiveness to the Supreme Court.[6] Chief Justice Rogers, joined by Justices Palmer and Eveleigh out of a five-justice panel, refused to limit the school's duty in any way due to the public policy to encourage student trips abroad, and were not shocked by the size of the verdict.[7] Justice McDonald concurred, questioning the test for determining excessiveness;[8] Justice Espinosa concurred, suggesting that the Second Circuit take a second look at the foreseeability of the plaintiffs injuries.[9]

Justice Eveleigh also dissented along with Justice Espinosa in Nationwide Mutual Insurance Co. v. Pasiak[10]concerning the construction of a business insurance policy. The majority held that the trial court improperly limited the plaintiffs discovery rights and ordered a new trial. The dissent would have affirmed the judgment that the insurance company had a duty to defend.[11]

Finally, Justice Eveleigh was the sole dissenter in Hull v. Newtown,[12] holding that a police officer did not have a duty to search a person being involuntarily taken to a hospital. The person had a gun and used it to shoot the plaintiff, a nurse at the hospital. The case is of little jurisprudential importance because it turned on the definition of "arrest" in the town's police manual. We cite it only to make our concluding point about Justice Eveleigh: the plaintiffs tort bar has lost its best friend with his retirement.

The most important cases in the area of criminal law in 2017 concerned the rights, or rather the lack thereof, of victims. In State v. Skipwith,[13] the court unanimously held that, although the victim could file a writ of error to the Supreme Court, she could not seek to vacate a criminal sentence, even when she had been deprived of her state constitutional right to object to the plea and to give a statement at the defendant's sentencing. Justice McDonald concurred and would have exercised supervisory authority over the Superior Court to adopt procedures to make sure such violations did not occur in the future.[14]

In State v. Damato-Kushel,[15] the court unanimously held that neither the victim nor the victim's lawyer is entitled to attend in-chambers, off-the-record disposition conferences between the presiding judge, defense counsel, and the prosecution. In short, victims can attend the sentencing and make a statement, but only after the decision is pretty much already made.

There were a few other decisions in criminal cases worth noting. While the defendant derived no benefit, the court held in State v. Edwards[16] that an expert needs to be qualified under the reliably scientific principles in State v. Porter[17] to testify regarding cell phone data and maps regarding cell phone coverage. In State v. Houghtaling,[18]the Court had a lengthy discussion regarding the rigid three-prong test enunciated by the Appellate Court in State v. Boyd[19] whether a defendant has a subjective expectation of privacy in certain property. While the Supreme Court overruled the Boyd test as inflexible, and stated that the proper test is whether there is conduct demonstrating an intent to preserve something as private, just as in Edwards, the decision did the defendant no good.

State v. McClain[20] continues the discussions on the court about the reach and validity of State v. Kitchens,[21] which had held that Golding review of instructional error can be implicitly waived. All the justices agreed that plain error review is not implicitly waived, because it only applies to the most egregious of errors. Three of the justices would have overruled Kitchens.[22]

State v. Baccala[23] was a close call on the "fighting words" exception to the First Amendment. The defendant screamed obscenities at a store manager and was convicted of breach of the peace. The 4-3 majority held that the defendant's vulgar insults were unlikely to provoke violent retaliation by a store manager, as evidenced by the fact that they did not. Unfortunately, the Court said nothing about the Connecticut free speech provisions, Article First §§ 4 and 5, even though the defendant's principal argument was under those provisions.[24] The dissent actually conducted a state constitutional analysis (after excoriating the defendant for inadequate briefing), concluded that state provisions provide no greater protection than the First Amendment, and finally held that the speech was unprotected under it.[25]

O'Brien v. O'Brien,[26] is 2017's major family law decision. It held that a court has inherent authority to make a party whole when that party was harmed because of another party's violation of a court order even if the court did not hold the misbehaving party in contempt. Thus, the court could properly adjust a property decision even when that would normally be improper. The other significant family case was Powell-Ferri v. Ferri,[27] which held that a party does not violate the automatic orders by failing to bring suit against a third party to recover marital assets.

There were two juvenile cases of significance in 2017. In In re Henrry P. B.-P.,[28] the court held that the Probate Court retains the statutory authority to make findings in connection with a petition for juvenile immigration status even after the child turns 18. In In re Elianah T.-T.,[29] the court held that vaccinations are not "medical treatment" pursuant to a statute giving the State powers concerning a child placed temporarily in the state's custody. On reconsideration, the Supreme Court rejected on the merits the State's newly raised statutory argument for vaccinating the child in its custody.[30]

That's all, folks. As we said at the beginning, not much happened in the Supreme Court's decisions in 2017.

II. Appellate Court

The Appellate Court issued just over 500 published decisions in 2017, approximately a fifth of which were one-line memorandum decisions printed at the back of the Connecticut Appellate Reports. At 13%, the overall reversal rate was down from 2016, and the reversal rate for appeals submitted only on the briefs was lower yet at 11%. A...

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