Recent Tort Developments
| Publication year | 2023 |
| Pages | 210 |
BY JAMES E. WILDES
The review this year covers portions of 2019 and 2020. The focus of the article, as in past years, is on appellate decisions. Some decisions are discussed in depth and other decisions RECEIVE less attention. The abundance of caselaw necessarily requires that some cases not be included in this survey. The areas of the law most prominently represented in this article include damages, defamation, governmental immunity, negligence, professional responsibility, sovereign immunity, statute of limitations, and trial practice.
I. ABSOLUTE IMMUNITY
Dubinsky v. Reich[1] addressed whether, Veronica Reich, an attorney who served as a court-appointed guardian ad litem for the plaintiffs minor child, was entitled to absolute immunity. The plaintiff sued Reich and her law firm for legal malpractice, intentional infliction of emotional distress and negligent infliction of emotional distress, alleging that Reich made recommendations adverse to him based on criminal charges and protective orders against him, notwithstanding clear resolution of those matters in his favor.[2] The Appellate Court stated that Reich was entitled to absolute immunity for any actions taken within her role as a court-appointed guardian ad litem.[3] The Court explained that absolute immunity insulates a party from suit and implicates the trial court's subject matter jurisdiction.[4] The Court affirmed the summary judgment entered in favor of the defendants, finding that Reich's recommendation to the court of supervised visitation between the plaintiff and his minor child along with her recommendation against the use of coparenting counseling were made to the court while fulfilling her statutorily prescribed duties as a guardian ad litem to the plaintiffs minor child.[5]
II. ANIMAL LIABILITY
Raczkowski v. McFarlane[6] affirmed a summary judgment rendered for the defendant landlord in a lawsuit brought by the plaintiff, who was bitten by a dog owned by a tenant, while the plaintiff was walking her own dog along the sidewalk. The Appellate Court disagreed with the plaintiff that the defendant landlord owed her a duty of care on the basis of a lease agreement between the defendant landlord and the co-defendant tenant.[7] The plaintiff argued that the lease created a duty, requiring the defendant landlord to investigate the behavioral tendencies of the defendant tenant's dog on behalf of third persons, who were not parties to the lease.[8] The plaintiff additionally argued that the language in the lease providing that the defendant landlord had discretion to approve the defendant tenant's pets created a duty of care to keep in a reasonably safe condition those portions of the premises over which she reserved control.[9] The Court observed that a lease is a contract and where a contract is unambiguous the interpretation of it is a question of law for the court.[10] The Court further stated that where a claim of a duty based on a contract is made by a plaintiff who is not a party to the contract the duty must arise from something other than a failure to perform the contract as it must also be based in the foreseeability that harm may result if care is not exercised.[11] The Court stated that the lease in question simply provided that the defendant landlord had discretion to approve or deny the ability of her tenants to own or keep pets and did not demonstrate that the defendant landlord and the defendant tenant intended to create a duty to any third persons.[12] The Court further stated that the terms of the lease showed that the defendant tenant had exclusive possession and control over the entire premises and the defendant landlord had no right to enter the premises to remove the dog.[13]
Sen v. Tsiongas[14] reversed the summary judgment rendered for the defendant landlord in action brought by the plaintiff, a tenant, who was bit by a dog owned by another tenant in a common area of the apartment building. The defendant, in support of his motion, stated that he did not have any knowledge of the alleged vicious propensities of the dog that bit the plaintiff.[15] The Appellate Court stated that a landlord in exercising the duty to alleviate dangerous conditions in areas of premises over which it retains control, must take reasonable steps to alleviate the dangerous condition created by the presence of a dog with known vicious propen-sities.[16] The Court found that there was a genuine issue of material fact as to whether the defendant had constructive notice of the dog's dangerous propensities based on evidence that the defendant had observed the dog bark at him and pull toward him when it was on a leash, along with evidence that the dog had scratched the plaintiff's husband, bit the first floor tenant's son and that the dog had been used as bait in dog fighting.[17]
ILL. DAMAGES
In Ashmore v. Hartford Hospital,[18] the Supreme Court agreed with the defendant that, in the absence of exceptional or unusual circumstances that were not present in the case before it, a loss of consortium award ordinarily should not substantially exceed the corresponding wrongful death award to the directly injured spouse. The Court reversed the judgment of the trial court, which had denied a motion for remittitur after a jury awarded $1.2 million in noneconomic damages to the named plaintiff, as the administratrix of the estate of her late husband, and $4.5 million to the plaintiff for her own loss of spousal consortium.[19] The Court stated that the decision to reduce a jury verdict because it is excessive, as a matter of law, rests within the discretion of the trial court.[20] The Court also explained that the issue before it was a purely legal question and, accordingly, its review was plenary.[21] The Court, in reaching its decision, recognized that loss of consortium damages defy any precise mathematical computation.[22] The Court also recognized that when the loss of consortium award is substantially greater than the award to the injured spouse, a suspicion naturally arises that the loss of consortium award was the product of sympathy or partiality in favor of the deprived spouse or prejudice against the defendant.[23] The Court stated that under these circumstances, the reviewing court must be able to identify evidence that explains or justifies the unusual disparity.[24]The Court remanded the case to the trial court for reconsideration of the defendant's motion for remittitur.[25]
The adequacy of verdicts where the jury awards economic damages but no noneconomic damages has been a frequent issue at the appellate level. In Maldonado v. Flannery,[26] the Appellate Court reversed the trial court which had ordered an additurs in the amount of $8000 in favor of first named plaintiff and $6500 in favor of the other plaintiff. The jury had awarded the first named plaintiff $19,020.38 in economic damages and zero noneconomic damages and also awarded the other plaintiff $11,864.94 in economic damages and zero noneconomic damages.[27] The Court stated that a motion for additur is a statutory creation that allows the trial court to increase the award of damages when the verdict is inadequate as a matter of law.[28] The Court further stated that it is axiomatic that the amount of damages awarded is a matter peculiarly within the province of the jury and that it is the right of the jury to accept some, none or all the evidence presented, and to weigh conflicting evidence and to determine the credibility of witnesses.[29] The test is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, mistake or corruption.[30] The Court rejected the notion that because a jury awards economic damages for medical treatment a jury must therefore conclude that the plaintiff experienced compensable pain and suffering.[31] The Court explained that a case specific standard should apply where a party seeks to have a verdict set aside on the basis that it is legally inadequate.[32] With respect to the case before it, the Court stated that after reviewing the evidence adduced at trial, the jury reasonably could have found that the plaintiffs failed to prove noneconomic damages for pain and suffering caused by the motor vehicle accident because the jury was not required to believe the plaintiffs' testimony and could have determined that the plaintiffs lacked credibility.[33] The Court also found that the trial court's failure to identify the portion of the record that supported its conclusion that the jury's failure to award noneconomic damages was unreasonable under the circumstances was an abuse of discretion.[34]
In Iino v. Spalter,[35] the plaintiff brought a complaint against the defendant executrix of the decedent's New York estate, alleging that the decedent had sexually abused her in Connecticut from the time she was six years old until she reached the age of 17. The complaint alleged intentional sexual abuse and reckless sexual abuse.[36] The jury found in favor of the plaintiff and awarded $15 million in compensatory damages.[37] The jury also found that the plaintiff was entitled to an award of punitive damages, but it was not asked to determine the amount of the punitive damages to be awarded; rather, the trial court rendered judgment in accordance with the verdict, reserving to itself a finding as the amount of punitive damages to be determined later.[38] The Court considered whether the trial court improperly permitted the jury to find the defendant liable for punitive damages without evidence as to the plaintiff's litigation expenses, and whether the trial court improperly reserved to itself the issue of the amount of punitive damages to be awarded.[39] The Court stated that...
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