News

Newsletter Categories

Quarterly Law Reporter, May Issue

Jackson O'Keefe Law Firm obtains favorable Connecticut Supreme Court ruling
 

On March 8, 2010, Attorney Joseph M. Busher obtained a favorable ruling from the Connecticut Supreme Court in favor of his client, the Town of Voluntown Board of Education.  The case arose out an injury that on October 11, 2005 at approximately 5:30 p.m. on Constitution Field in the Town of Voluntown, Connecticut.  The plaintiff alleged that she sustained severe personal injuries when part of a tree located on an adjacent field split from the trunk and fell onto her as she watched her daughter play a school-sponsored soccer game. 
 
On appeal, the Connecticut Supreme Court ruled that the defendants were entitled to immunity pursuant to General Statutes § 52-557n which states in part that “a political subdivision of the state shall be liable for damages to person or property caused by . . . acts of the political subdivision which constitute the creation or participation in the creation of a nuisance.”  Since the statute requires positive acts on the part of the defendant, the Court held that the plaintiff’s allegations based solely on an alleged knowing and intentional failure to remediate a diseased tree did not satisfy the statutory requirements for liability. The Court ruling can be viewed by clicking here.  Jackson O'Keefe East Haddam Office is located at 51 Dolbia Hill Road, East Haddam, CT.  The East Haddam phone number is (860) 966-7436

Quarterly Law Reporter, Vol X, Issue 1-2

EMPLOYMENT LAW – The Supreme Court reaffirms that the qualified privilege for defamation is lost upon
a showing of either actual malice or malice in fact: The plaintiff sought to recover damages from her former employer, a skilled nursing facility based upon a claim of defamation arising out of the defendant’s termination of the plaintiff ’s employment. Following the death of a resident of the facility, the resident’s niece told the plaintiff that she was not interested in the resident’s personal property and that the plaintiff could do what she wanted with those items. The plaintiff removed some of the personal property. After the employer later discovered that property had been taken, the employer informed the plaintiff that there was corporate policy against accepting gifts from residents and their families. The plaintiff returned the items. The employer verified that the plaintiff had in fact been given permission from the niece but nonetheless terminated the plaintiff on the grounds of theft, claiming that pursuant to the corporate policy the items belonged to the facility and that the plaintiff had committed theft when she removed them. Following a trial to the court, $424,481.00 in general, special and punitive damages was awarded to the plaintiff. On appeal, the defendant claimed that the qualified privilege for intra corporate communications barred liability. The Supreme Court clarified that the qualified privilege is lost under Connecticut law upon proof of either actual malice (the publication of a false statement with knowledge of its falsity or reckless disregard for its truth) or malice in fact (the publication of a false statement with bad faith or improper motive). Next, the Court held that the trial court was not clearly erroneous in finding that the defendant acted with actual malice in publishing the claim that the plaintiff committed theft. In reaching this conclusion, the Court noted that whatever belief the employer had with regard to the policy prohibiting gifts to employees, “that belief did not alter the ownership of the property and cannot alter the meaning of theft, a criminal act defined by law.” “The fact that the defendants had instituted a policy prohibiting employees from accepting gifts from residents or their families as a condition of their employment was relevant only to the plaintiff’s employment obligations, not to the ownership of the property.” Gambardella v. Apple Health Care, Inc., 291 Conn. 620 (2009)

TRIAL PRACTICE – The Appellate Court affirms a directed verdict for the defendant in a rear-end collision case: In an underinsured motorist case, the plaintiff sought benefits in connection with an automobile accident in which the plaintiff’s vehicle was struck from behind by a vehicle operated by the tortfeasor. The only evidence presented by the plaintiff addressing the issue of liability was her testimony regarding the incident and photographs of the damage to her vehicle. The plaintiff testified that she had been driving in the left of two lanes when she slowed and brought her car to a stop behind a line of traffic that was waiting for a car ahead to make a left turn. The plaintiff considered switching to the right lane but decided against it because of the heavy traffic conditions. After being stopped for a total of 4 to 5 seconds, the plaintiff’s car was struck in the rear. She described the impact as a hard jolt and admitted that she did not observe the car that struck her before the accident. At trial, the jury was deadlocked and the trial court granted the defendant’s motion for directed verdict. On appeal, the Appellate Court affirms, holding that the plaintiff failed to present sufficient evidence to remove the issues of negligence and proximate cause from the realm of conjecture. The Court notes that “a plaintiff cannot merely prove that a collision occurred and then call upon the defendant operator to come forward with evidence that the collision was not a proximate consequence of negligence on his part.” “No one testified as to the actual circumstances that caused [the alleged tortfeasor’s] vehicle to strike the plaintiff ’s vehicle, and the plaintiff testified that she did not see [the] vehicle strike her vehicle. There remains a number of factual possibilities that could explain how the accident occurred.” Schweiger v. Amica Mutual Ins. Co., 110 Conn. App. 736 (2008)

TRIAL PRACTICE – The Appellate Court holds that a new trial is warranted where a jury awards the plaintiff compensation for past and future medical bills, but fails to make any award for non-economic damages: In a claim arising out of an automobile accident, the jury returned a verdict in favor of the plaintiff in the amount of $8,872.14 for past medical expenses and $50,000.00 for future medical expenses for a surgery involving a 2 level spinal fusion. The jury did not award any non-economic damages. At trial, the defendant’s expert witness admitted that the plaintiff had been asymptomatic prior to the accident and that the accident contributed to the plaintiff ’s back injury and caused approximately 25% of the plaintiff ’s pain and that the plaintiff ’s pain would get worse with time. The expert also conceded that surgeons recommend surgery to treat similar injuries and that, without surgery, the plaintiff would experience pain for the remainder of his life. The expert testified that he personally would not recommend surgery because he believed that it was unlikely that the surgery would improve the plaintiff ’s condition. Holding that the case at bar was similar to many prior cases in which the Appellate Court held that a jury’s failure to award non-economic damages was inconsistent with its verdict, the Appellate Court affirms the granting of the plaintiff ’s motion for a new trial. “It is not reasonable for a jury to find a defendant liable for the expense of a spinal fusion surgery but not liable for the pain and permanent disability necessarily attendant to such intrusive surgery. The jury was free to find the defendant insurer liable for some, all or none of the plaintiff ’s economic damages. After finding the defendant insurer liable for at least a portion of the plaintiff ’s spinal fusion surgery, however, the jury reasonably could not have found that the defendant insurer was free from liability for all of the pain or disability attendant to such surgery.” Benedetto v. Zaku, 112 Conn. App. 467 (2009)

TORT LAW – A homeowner and a construction contractor do not owe a duty to a firefighter injured in the course of responding to a fire: A firefighter sought to recover damages from a condominium unit owner and a contractor hired by the owner to perform remodeling work. The firefighter was injured while jumping from the fire truck due to the advanced state of the fire at the time of the firefighter’s arrival. The trial court granted motions to strike the plaintiff ’s negligence and recklessness claims. The Appellate Court affirms pursuant to Lodge v. Arett Sales Corp., 246 Conn. 563 (1998), a Supreme Court case in which Jackson O’Keefe represented the defendants and the Supreme Court affirmed the dismissal of analogous claims. The Appellate Court notes that the firefighter alleged that the defendants negligently hired unqualified individuals to perform plumbing work which resulted in the fire and negligently failed to promptly report the fire once it began. The Appellate Court holds that neither the contractor nor the homeowner lit the fire; instead, the fire was ignited by a subcontractor. “That fact alone significantly attenuates [the defendants’] conduct from the harm suffered.” Additionally, “the fact that the plaintiff sustained injuries after he jumped from the fire engine in an unorthodox and an allegedly unsafe manner could not have been anticipated as a foreseeable consequence of [the defendants’] conduct.” Furthermore, the Court noted that “with respect to [the] delay in reporting the fire, we have found no authority stating that a homeowner owes a duty of care to emergency personnel to report promptly a fire or any other emergency. As a matter of public policy, we additionally note that a finding of liability in response to a delay in reporting an emergency could deter an individual from reporting the emergency at all if that person thought that too much time had passed.” Hollister v. Thomas, 110 Conn. App. 692 (2008)

PEOPLE IN THE NEWS – Attorney Peter K. O’Keefe obtains a defendant’s verdict: Attorney O’Keefe recently obtained a defendant’s verdict in a premises liability lawsuit. The plaintiff claimed a laceration above the left eye with bruising, a right leg fracture, a left leg fracture, a right wrist injury, as well as emotional distress. Medical special damages totaled $39,000.00 and a lost wage claim of in excess of $16,000.00 was asserted. The plaintiff claimed an 8% impairment of the left leg and a 3% impairment of the right leg. The plaintiff was a customer at a grinder shop and alleged that as she was entering the premises, another patron was exiting. She claimed that as she stepped aside to allow the patron to exit, she fell off of the sidewalk ramp, landing on her knees. The plaintiff alleged that her fall was caused by the narrow width of the sidewalk in front of the premises. The plaintiff ’s expert testified that the ramp in question was not in compliance with the Building Code. However, the plaintiff ’s expert acknowledged that the Code did not apply to the building as the ramp was constructed prior to the enactment of the Connecticut State Building Code. The defendant asserted that the property was not defective and that the fall was caused by the plaintiff ’s own negligence. The defendant’s expert testified that the Code cited by the plaintiff was inapplicable to the building in question.

TORT LAW – The Appellate Court affirms the principle that a defendant has no duty to warn of an open and obvious condition of which the plaintiff is aware: The plaintiff was injured while delivering a truckload of bricks at a construction site. An employee of the general contractor pointed to an area where the plaintiff should deliver the bricks, and the plaintiff moved his truck to that area. Shortly thereafter the defendant, another subcontractor, arrived on the site. Observing that there were power lines nearby, the defendant suggested that the plaintiff move his truck because it was too close to the power lines. Despite knowing that there was a sign posted on his truck that stated “look up keep boom 15 feet from power line,” the plaintiff responded that he could make the delivery from that location. Using a boom attached to the truck, the plaintiff began to move the pallets of bricks, but, during the process, the boom came into contact with the power lines, injuring the plaintiff. After settling with the general contractor, the plaintiff proceeded to trial against the remaining subcontractor defendant, alleging negligence in failing to warn and negligence in allegedly directing the plaintiff to operate his truck in an area that did not provide adequate clearance or protection. At trial, the court charged the jury on both of these specifications of negligence but after a plaintiff ’s verdict concluded that there had in fact been no evidence to justify a charge on the alleged failure to warn. Nonetheless, the trial court declined to grant the defendant a new trial. On appeal the Appellate Court reverses, agreeing that there was in fact no evidence upon which to predicate any claim of negligent failure to warn, noting that the duty to warn does not arise if an invitee has actual knowledge of the dangerous condition. Since the trial court had a duty not to submit the failure to warn specification of negligence to the jury, the defendant was entitled to a new trial. Sequenzia v. Guerrieri Masonry, Inc., 113 Conn. App. 448 (2009)

Attorney Philip R. Dunn obtains a defendant’s verdict in a premises liability case: On May 1, 2009, after a three week trial, Attorney Dunn prevailed in the defense of a condominium association, its management company and a unit owner. The plaintiff was a maintenance person employed by an independent contractor and fell from a ladder he leaned against a wooden deck rail when it collapsed. The plaintiff violated his own company policy relative to the use of a spotter and should have accessed the deck from inside the unit. The plaintiff was also the person charged to repair and replace defective deck rails, but did not inspect the rail in question before leaning his ladder against the rail. The plaintiff fractured his heel bone and developed RSD that has kept him out of work since August, 2006. He is collecting SSD and there is no prospect of his return to work based on his education and medication regimen. Attorney Dunn retained the services of a professor of physics to create a model and experiments to demonstrate that the plaintiff placed more weight on the rail than it was required to hold under the Building Code. The plaintiff ’s theories of liability were numerous and involved alleged code violations and sound construction and inspection practices as described by the plaintiff ’s experts. The plaintiff ’s last demand was $475,000.00, and there was no offer to settle. No appeal has been filed.

MEDICAL MALPRACTICE – The Appellate Court holds that a Motion to Dismiss is the appropriate procedural vehicle to challenge the lack of a good faith certificate required by General Statutes § 52- 190a: The plaintiff sought to recover damages from physicians and a medical practice, alleging claims for negligent infliction of emotional distress, breach of contract and misrepresentation in connection with the defendants’ care of the plaintiff during her pregnancy and the premature birth of her son, who died 51 days later. The Appellate Court affirms dismissal of the complaint on the grounds that the plaintiff failed to include any good faith certificate and written opinion of a similar healthcare provider as required by General Statutes § 52- 190a in medical malpractice cases. The Appellate Court rejects the plaintiff ’s claim that the trial court improperly characterized her complaint as sounding in medical malpractice rather than an ordinary tort and breach of contract. While recognizing that the complaint involved allegations of emotional distress and broken promises, the court nonetheless agreed with the trial court that the complaint sounded in medical negligence and therefore came within the purview of § 52-190a. “Every count of the complaint, whether labeled intentional, reckless or negligent conduct or breach of contract, alleges that the defendants disregarded ‘the recommendation of [the] high risk physicians during the plaintiff ’s stay at the hospital’ and refused the plaintiff ’s requests ‘for no valid medical reasons….’” Based upon these allegations, the Appellate Court concludes that all of the claims arose out of the professional-patient relationship and involved a claim of a “specialized medical nature and that to decide the issues presented a jury would require expert medical testimony.” Second, the Appellate Court rejects the plaintiff ’s claim that a motion to strike, rather than a motion to dismiss, should have been used to challenge the complaint since the motion to strike would allow the plaintiff to attempt to remedy the alleged deficiencies by the filing of an amended complaint after the granting of the motion. Citing subsection (c) of § 52-190a, the Court notes that the legislature has expressly provided in the statute that the failure to obtain and file a written opinion of a similar healthcare provider renders the case subject to dismissal. While not allowing for an amendment after the granting of a motion to dismiss, the Court does note that “given the fallibility existing in the legal profession once noted by Justice David N. Shea, it is possible that a written opinion of a similar healthcare provider, existing at the time of commencement of an action, might be omitted through inadvertence. In such a scenario, it certainly may be within the discretionary power of the trial judge to permit an amendment to attach the opinion, and, in doing so, deny a pending motion to dismiss. Such a discretionary action would not be at variance with the purpose of § 52-190a, to prevent groundless lawsuits against healthcare providers.” In the case at bar, the Appellate Court notes that the plaintiff made no claim to have such a written opinion and maintained that her action simply did not sound in medical malpractice. Votre v. County Obstetrics & Gynecology Group, PC, 113 Conn. App. 569 (2009)

MEDICAL MALPRACTICE – Affirming a verdict for the defendant physician, the Appellate Court holds that the trial court correctly precluded the plaintiff from presenting evidence as to the standard of care for recordkeeping which the plaintiff claimed would be relevant to his claim that the physician had mistakenly operated on the wrong side of his back: The plaintiff brought an action against an orthopedic surgeon for medical malpractice and battery in connection with a surgical procedure performed to correct a herniated disc. Although the herniation was located on the left side of the spine, the physician operated on the right side. At trial, the physician defended his decision to operate on the right side by claiming that he had chosen to remove material from the right side to create a space for the bulge on the left side to sink back into place. The physician’s medical records from both before and after the surgery mistakenly indicated that the plaintiff had complained of right-sided symptoms and had a right-sided herniation. Evidence of these mistaken entries was admitted at trial, but the trial court refused to allow evidence as to the standard of care for medical recordkeeping. The Appellate Court affirms, noting that there was no allegation of negligent recordkeeping and the plaintiff had been allowed to present evidence of the inaccurate records and had simply been precluded from offering evidence as to the standard of care with regard to recordkeeping. Costanzo v. Grey, 112 Conn. App. 614 (2009)

Attorney Joseph M. Busher, organizes a successful fundraiser to benefit charity: On July 11, 2009 the East Haddam Lions Club hosted its annual town-wide auction at the Grange Hall in East Haddam. The Club raised over $17,000 for its charitable projects. This was the third year Attorney Busher chaired the event. Kevin Hogan of WFSB served as the guest auctioneer.

Quarterly Law Reporter, Vol IX, Issue 3

CIVIL PROCEDURE - A prevailing party at trial may obtain reimbursement for costs which include an expert's time spent in preparing for a deposition:

Practice Book § 13-4(3) provides in part that the judicial authority "shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery. ..." As a matter of first impression, the Connecticut Supreme Court holds that this language does not limit the financial responsibility of the party seeking further discovery concerning an expert's testimony to the expert's time at the deposition, and is broad enough to include payment of a reasonable fee not only for the testimony but also for preparation. Levesque v. Bristol Hospital, Inc., 286 Conn. 234 (2007)

CONSTRUCTION LAW - The Connecticut Supreme Court holds that a general contractor and permit applicant do not have a duty to an employee of a subcontractor under certain circumstances:

The plaintiff was an employee of a structural steel fabrication and erection subcontractor that had been hired by the defendant, Sordoni/Skanska Construction Company. Under its subcontract, the plaintiff 's employer had responsibility to provide all of the structural steel for the project. The plaintiff 's employer also contracted to inspect all welds. The general contractor reserved the right to inspect the structural steel "solely for its own benefit." The plaintiff was injured while working beneath the building's large steel frame. One of the beams had only been "tack" welded to temporarily hold the steel beam in place pending a full, load-bearing weld. Before it could be fully welded, the beam gave way while the plaintiff was working beneath it. After a jury verdict in excess of $41 million, the Supreme Court holds on appeal that a verdict should have been directed for the defendant. First, the Supreme Court rejects the plaintiff 's claim that the general contractor/permit applicant had a nondelegable duty under the building code. The Court notes that under the pertinent provisions of the building code, a permit applicant is only required to "provide" special inspections of steel fabricated items, and in the case at bar, this obligation was appropriately delegated by contract to the plaintiff 's employer. The Supreme Court concludes that the general contractor therefore had no legal duty to conduct these inspections. Second, the Court rejects the plaintiff 's claim that General Statutes § 29-554a (imposing penalties for violations of the building code), § 29-263 (requiring review of building plans to determine compliance with the building code), § 29-276b (requiring independent review of plans and specifications to ensure compliance with the building code) and § 29-265 (requiring a certificate of occupancy stating that the structure or work performed substantially conforms to the building code) imposed an obligation on Sordoni/Skanska to inspect the welds. Third, the Court holds that Sordoni/Skanska had no legal duty to the plaintiff under the principles of common law negligence "because the plaintiff 's injury was not foreseeable." The Court states: "No ordinary person in Sordoni's position, knowing what Sordoni knew or should have known, could have foreseen that the plaintiff would be harmed because the defective weld had not been inspected. [The plaintiff 's employer] was required under [its contract] to perform its work 'in strict compliance' with the applicable 'drawings, specifications, addendum, and bulletins. ...' Notes 13 and 21, respectively, of drawing S-9 required [the plaintiff 's employer] to ensure that 'all connections would be in accordance with AISC specifications' and that 'all structural welding would conform to AWS and AISC specifications.' [The plaintiff's employer] was also required under its subcontract to retain an independent inspection agency to inspect all welds. ... Finally, no evidence was presented at trial that Sordoni knew, or had reason to know, that [the plaintiff 's employer] had fabricated a defective weld, had failed to inspect all welds as required under its subcontract or failed to notice at any other time prior to erection of column 313 on the Pitney Bowes site that the weld was defective." Fourth, the Court concludes that "the fabrication and inspection of welds is not the kind of work that, when properly done, naturally would expose others to injury unless special preventive measures were taken." The Court states that its reasoning is "consistent with that of other jurisdictions that have rejected claims alleging that construction work is inherently dangerous." Finally, the Court rejects the plaintiff 's claim that Sordoni had a duty based on retention of control over the "area or instrumentality" that caused the plaintiff 's harm. The Court notes that Sordoni had subcontracted the fabrication and inspection of the steel elements, including all welds, to the plaintiff 's employer and that inspections by Sordoni and a safety manual promulgated by Sordoni did not create authority or control over specific construction activities which had been subcontracted out to the plaintiff 's employer. Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563 (2008)

CONSTRUCTION LAW - The Connecticut Supreme Court holds that (1) evidence of negligence by an injured employee's employer may be offered under certain circumstances and (2) a general contractor does not, under certain circumstances, have a non-delegable duty to provide a safe worksite:

In what it called an issue of first impression, the Court explicates a footnote from its prior ruling in Durniak v. August Winter & Sons, Inc., 222 Conn. 775 (1992), which stated that a defendant "might" be allowed to offer such evidence "if, instead of relying on a special defense alleging the intervening employer's negligence, the defendant, having filed a general denial, sought to make an evidentiary showing that it was the employer's conduct rather than the defendant's conduct that had proximately caused the employee's injuries." In explaining the statement, the Court adopts the principle that "a defendant is entitled to assert, under a general denial, that the negligence of an employer who is not a party to the action is the sole proximate cause of the plaintiff 's injuries." (Emphasis added.) The Court repeats this statement later in its opinion as well. This leads to the illogical result that a defendant cannot show the negligence of the plaintiff 's employer when the employer is a party, but can do so when the employer is not a party. The Court also goes on to hold that the defendant, a general contractor, did not have a nondelegable duty for overall site safety and that the plaintiff 's employer rather than the general contractor was in control of the excavation of the trench in which the plaintiff was injured. The Court notes that the trial court had relied on the general contractor's own safety rules and the testimony of its two supervisors in determining that it had overall responsibility for safety on the jobsite and therefore had a non-delegable duty to insure that the work was performed safely. The Court states: "Overall responsibility for safety on the worksite, however, does not necessarily translate into a non-delegable duty. Konover's subcontract agreement with Soneco required that Soneco comply with all applicable federal, state and local safety rules and regulations, follow Konover's project safety plan, maintain safe and healthful working conditions, provide required mechanical safeguards and personal protective equipment, and insure that employees comply with the established safety regulations and practices ... . In addition, Soneco assumed 'the entire responsibility and liability for all work, supervision, labor and materials' provided under the subcontract agreement until final acceptance of the work by the owner. Soneco also agreed to accept liability for any loss, damage or destruction from any cause other than Konover's sole negligence. ... Furthermore, Konover's safety manual was not the source of a contractual or legal duty to provide a safe worksite but was merely an informational tool. ... Neither [of the two Konover supervisors] testified that Konover retained direct control over Soneco's work, over Soneco's employees or over the manner in which the work was to be performed, nor did either testify that Konover assumed direct control over, or interfered with, Soneco's responsibility to perform its work safely. To the contrary, both ... emphasized that, even though [they] exercised general supervision over the worksite, Soneco had direct responsibility for supervising the work of its employees." Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20 (2008)

CUTPA AND PRODUCT LIABILITY - A plaintiff may not maintain a CUTPA claim in conjunction with a product liability claim where there is no allegation of harm caused by any "unfair or deceptive trade practice," separate from the personal injury allegations:

The plaintiff alleged that she was injured when a scooter manufactured by Pride and purchased from Maxim moved forward and struck her in the leg. She sued Maxim under the Connecticut Product Liability Act (C.G.S. § 52-572n(a)) and under the Connecticut Unfair Trade Practices Act (C.G.S. § 42-110b).The defendant moved to strike the CUTPA claim, arguing that § 52-572n was her exclusive remedy. The Court applies the test articulated by the Connecticut Supreme Court in Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120 (2003), in which the Court permitted a CUTPA claim to stand in conjunction with a claim under § 52-572n where it found that the claim of financial injury which the plaintiff alleged "cannot reasonably be construed to be a claim for personal injury, death or property damage," within the meaning of the Product Liability Act. Applying the Gerrity test to the case before it, the trial court grants the motion to strike, concluding that an allegation that the defendant withheld recall information fits squarely within the definition of a product liability claim and the plaintiff had failed to allege financial harm caused by any unfair or deceptive trade practice so as to bring the claim outside the scope of § 52-572n. Jordan v. Maxim Mobility, LLC, 2008 WL 344716 (Conn. Super.)(Gilligan, J.)

DAMAGES - A plaintiff is not entitled to a charge on the "eggshell plaintiff " doctrine unless the plaintiff alleges an aggravation of a preexisting condition or prior injury:

The plaintiff commenced suit after a slip and fall while exiting her motor vehicle. After a verdict for the defendant in which the jury found that the plaintiff failed to prove that the defendant's negligence was the proximate cause of her injuries, the plaintiff moved to set aside the verdict claiming the court had improperly failed to provide the jury with an "eggshell plaintiff " charge. Under this doctrine, "where a tort is committed, an injury may reasonably be anticipated, the wrongdoer is liable for the proximate results of that injury, although the consequences are more serious than they would have been, had the injured person been in perfect health." The Appellate Court holds that the trial court appropriately declined to give such a charge, stating: "The plaintiff did not plead in her complaint that the defendants' negligence aggravated any preexisting condition or prior injury. Moreover, the plaintiff did not file an amendment of her pleading to conform to the proof that she claims was offered by the defendants regarding the aggravation of the preexisting condition or prior injury." Lazzetta v. Nevas, 105 Conn. App. 591 (2008)

DAMAGES - The Supreme Court holds that a defendant is not automatically entitled to reduce a jury verdict based upon amounts received by the plaintiff in pretrial settlements with other defendants:

The plaintiffs brought suits arising out of the collision of two boats resulting in the death of two occupants and injuries to two other occupants. The estates received $874,000 each from defendants who settled prior to trial. The other plaintiffs each received $341,500 in settlement payments. At trial, the jury returned verdicts for the plaintiffs. The highest verdict was $175,000. The defendant filed motions for remittitur, seeking a reduction in the damages in an amount equal to the settlement payments the plaintiffs had already received. The trial court denied the motions and, on appeal, the Supreme Court affirms, holding that its prior cases made clear that "a trial court may, in the exercise of its discretion, reduce a jury award to account for pretrial settlements."The Court continues: "Before doing so, however, the court must determine that the settlement payments, when added to the jury award, render that award excessive as a matter of law, a threshold that is met only when the total amount received so far exceeds what is fair and reasonable as to be unconscionable." Mahon v. B.V. Unitron Manufacturing, Inc., 284 Conn. 645 (2007)

INSURANCE LAW - The court will not enforce an agreement to settle where the plaintiff mistakenly believed the policy limits at issue were $20,000 and the insurance carrier failed to correct said mistaken belief by disclosing its policy limits of $300,000:

The plaintiff was rear-ended by the defendant while driving on I-84 in Waterbury. He retained counsel, who brought suit and entered into settlement negotiations with the defendant's carrier. Counsel requested the defendant's policy limits and was informed that this information would not be provided. For reasons not stated in the opinion, counsel believed the policy limits to be $20,000. He agreed to resolve the case for the $20,000 policy limits and requested confirmation of said limits. Ultimately, a settlement draft in said amount was tendered and cashed. Counsel subsequently became aware that the applicable policy limits were $300,000. The defendants moved to enforce the settlement and the plaintiff objected to such motion. The court determines that the defendants needed to establish that they tendered payment in good faith in order to enforce the settlement agreement. Citing testimony from the claims handler to the effect that he knew the policy limits were not $20,000 but was trained not to disclose policy limits, that he was told that he would be operating in good faith if he remained silent in the face of the plaintiff 's mistaken belief that he was settling for the policy limits, and that he did not believe there was a meeting of the minds, the court concludes that the defendant carrier failed to observe reasonable commercial standards of fair dealing in the settlement negotiations. It further finds that the defendant carrier could not establish that it tendered payment in good faith, thus precluding it from establishing that it had a settlement agreement with the plaintiff under Connecticut Regulation § 42a-3-311. Ozkan v. Gallo, 2008 WL 1913906 (Conn.Super.)(Upson, J.)

INSURANCE LAW - The Supreme Court holds that a superfluous and arguably ambiguous provision on a declarations page cannot be reasonably construed to double the policy limit:

In the underlying litigation, the plaintiff commenced a medical malpractice action against a physician and a nurse practitioner employed by the physician, alleging that each of them negligently failed to diagnose and treat a central nervous system infection. In a subsequent declaratory judgment action the issue was whether the physician and nurse practitioner were each entitled to a separate $1 million policy limit under a policy issued to the physician. The declarations page listed the physician as the "insured." The declarations page also listed "paramedical employee coverage," a term not defined in the policy as one type of coverage provide under the policy. It also referenced by job title two nurse practioners employed by the physician. The section of the policy setting forth the limits of individual professional liability provided that the limit of $1 million for each medical incident "shall apply separately to each individual insured named in the declarations." Based upon its review of the declarations page, the Court concludes that only the physician was a "named insured" on the declarations page. The Court rejects the plaintiff 's claims that the declarations page created an ambiguity as to whether the nurse practitioner was entitled to a separate and additional $1 million limit. While recognizing that the declarations page contained superfluous language, the Court states that the reading proposed by the plaintiff would "directly conflict with other language in the insurance policy that indicates that the $1million limit for individual professional liability applies 'separately to each individual insured named in the declarations.'" The Court further states that it would not be reasonable to suppose that the insurer "extended, without defining paramedical employee coverage in the policy, and without setting forth applicable limits of liability or defining what would constitute a medical incident under that type of coverage, an additional limit of $1 million per medical incident of coverage for two nurse practitioners, without charging for that additional coverage." Connecticut Medical Ins. Co. v. Kulikowski, 286 Conn. 1 (2008)

MEDICAL MALPRACTICE - A child may recover for injuries he sustained while in utero when his mother was undergoing a gall bladder operation:

The plaintiff brought a medical malpractice action against the defendant-surgeon who performed a gall bladder operation on her when she was thirty-one weeks pregnant. She claimed that the defendant cut her common bile duct during the operation, did not realize that he had done so, and that this misconduct caused the plaintiff to become ill and require additional surgery. The infant plaintiff was born at thirty-four weeks and brought a claim through his mother that the defendant's conduct caused a premature birth and other attendant injuries. The defendant moved to strike the infant plaintiff 's claims on the basis that a surgeon performing a procedure on a pregnant patient owes no duty to the infant in utero. The court disagrees and denies the motion to strike. The court notes that "the Restatement (Second) of Torts §869 recognizes that a child may maintain a cause of action for prenatal injuries if that child is born alive. This cause of action appears to be recognized in all jurisdictions that have considered the issue, except in Louisiana. ... Connecticut, too, recognizes that a child born alive can maintain an action against a tortfeasor for injuries that occurred prenatally." Id. (citing In re Valerie D., 25 Conn. App. 586, 590 (1991)). Ultimately, the court holds that "[t]his case does not turn on the issue of whether the unborn child can be considered a "patient" of the physician. Rather it turns on the issue of forseeability. "Just as a psychiatrist who has knowledge of a specific foreseeable risk to an identifiable third party has a duty to the third party, ... a surgeon who knows or ought to know of the pregnancy of his patient has a duty to adhere to the appropriate standard of care so as not to cause injury to the patient's fetus in the event the child is born alive." Muisener v. Saranchak, 2008 WL 853773 (Conn. Super.)(Pittman, J.)

MEDICAL MALPRACTICE - Section 52-190a prohibits a party from filing suit and subsequently conducting the required "reasonable inquiry:"

Defendants moved to strike the plaintiff 's medical malpractice claim on the basis that the plaintiff had failed to comply with the prerequisites to filing suit which are set forth in General Statutes § 52-190a. Specifically, the defendants argued that the plaintiff had failed to file a good faith certificate and the written opinion of a similar health care provider. The defendants argued that the dates of the unsigned opinions, which were submitted after suit had been commenced and by way of an amendment to the original complaint, established that the opinions and letters were not obtained in advance of the plaintiff 's filing suit. The court grants the motion, finding that it could not conclude that the plaintiff had satisfied the prerequisites for filing a proper complaint in the action where the opinion letters were not generated until after the action was filed. Santorso v. Bristol Hosp., 2008 WL 1822786 (Conn.Super.)(Pittman, J.)

MUNICIPAL LAW - The Connecticut Appellate Court refines the governmental immunity analysis for defective premises claims:

The plaintiff commenced suit against a municipality arising out of a fall due to an allegedly uneven patio stone. Summary judgment was granted for the defendant municipality pursuant to General Statutes § 52-557n which provides that a municipality is not liable for damages to persons or property caused by "negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." The Appellate Court affirms summary judgment for the defendant, holding that the duties to inspect, maintain and repair are considered discretionary acts entitled to governmental immunity. The Court states that the duty to warn is a ministerial one, but that summary judgment was nonetheless appropriately granted for the defendant "because the plaintiff failed to provide an evidentiary foundation for her assertion that the defendant had made the initial determination of an unsafe condition." The Court states: "The plaintiff ... failed to submit any evidence that make the defendant's knowledge of a defect a genuine issue. Accordingly, the court properly rendered summary judgment because the plaintiff could not prove that the defendant had a duty to perform its ministerial warning function under § 16-173 of the Milford Code of Ordinances." Grignano v. Milford, 106 Conn. App. 648 (2008)

PRIVACY RIGHTS - An employer may be liable for wrongful termination where the employee was terminated for refusing to allow the employer to inspect the employee's telephone records:

The plaintiff claimed that the defendant, through its owner, demanded to inspect her private cellular telephone records to see if she was communicating with former partners in the company who had been expelled by the owner when he became the sole owner of the corporation. The plaintiff alleged that she refused to submit her private telephone records and that the owner thereafter placed her on indefinite suspension without pay. The plaintiff set forth claims for wrongful termination insofar as her indefinite suspension was in fact termination or constructive termination; a claim for statutory wrongful termination based upon her exercise of her constitutional rights under General Statutes § 31-51q; and, a cause of action under the intrusion upon seclusion portion of the invasion of privacy tort. The defendant moved to strike the plaintiff 's wrongful termination claim on the basis that the plaintiff had failed to specify a clear mandate of public policy to support her wrongful termination claim, failing to identify a specific statutory or common law public policy. In opposition to the motion to strike, the plaintiff argued that her wrongful discharge claim is based on an invasion of her right to privacy. The court denies the defendant's motion to strike finding that onnecticut has recognized the right to privacy. The court cites several cases which have held that "Connecticut recognizes a cause of action for invasion of privacy pursuant to which a plaintiff may make claims based upon intrusion upon seclusion ..." The court further bases its holding on General Statutes § 16-247u(b) which states that "[n]o person shall: (1) knowingly procure, attempt to procure, solicit or conspire with another to procure a telephone record of any resident of this state without the authorization of the customer to whom the record pertains ... (3) receive a telephone record of any resident of this state with the knowledge such record has been obtained without the authorization of the customer to whom the record pertains or by fraudulent, deceptive or false means." The court does, however, strike the plaintiff 's claim for invasion of privacy finding that because she refused to disclose her cell phone records, no actual intrusion occurred. Hellanbrand v. National Waste Associates, LLC, 2008 WL 442136 (Conn. Super.)(Hale, J.T.R.)

TORT LAW - Connecticut courts side with a majority of states enforcing a federal statute that prohibits lessor vicarious liability:

The Graves Amendment, codified at 49 U.S.C. § 30106(a), was enacted on August 10, 2005 and prohibits vicarious liability claims against lessors of automobiles. The state courts of Connecticut have repeatedly upheld this Federal statute and held that it preempts General Statutes § 14-154a which allowed such claims in certain situations. See Axson v. Graham, 2008 WL 711604 (Conn. Super)(Martin, J.); Avelino v. Williams, 2008 WL 2252529 (Conn. Super.)(Elgo, J.). Connecticut Superior Courts have rejected claims made by plaintiffs that the Graves Amendment is an unconstitutional exercise of power under the commerce clause. Id. Neither the Supreme Court nor any federal appellate court has yet addressed whether the Graves Amendment is a constitutional exercise of Congress' commerce power. Several district courts, however, have held that it is. See Berkan v. Penske Truck Leasing Canada, Inc., 535 F.Supp.2d 341 (W.D.N.Y.2008); Jasman v. DTG Operations, Inc., 2008 WL 376774 (W.D.Mich. Feb.13, 2008); Dupuis v. Vanguard Car Rental USA, Inc., 510 F.Supp.2d 980 (M.D.Fla.2007); Seymour v. Pense Truck Leasing Co., 2007 WL 2212609 (S.D.Ga. July 30, 2007). However, one district court and one New York State court have held the amendment unconstitutional. See Vanguard Car Rental USA, Inc. v. Huchon, 532 F.Supp.2d 1371 (S.D.Fla.2007); Graham v. Dunkley, 13 Misc.3d 790, 827 N.Y.S.2d 513 (Sup.Ct.2006). Graham was subsequently reversed by the New York Appellate Division. Thus, Connecticut courts have taken the majority view in finding the Graves Amendment viable.

TORT LAW - The Supreme Court holds that a cat owner may be liable for injury caused by the cat under certain circumstances:

As a matter of first impression, the Connecticut Supreme Court states that when a cat has a propensity to attack other cats, knowledge of that propensity may render the owner liable for injuries to people that foreseeably result from such behavior. The Court concludes that it is reasonably foreseeable that a person would attempt to protect his own cat from being attacked by an abnormally aggressive cat, and that the person could be injured by the abnormally aggressive cat, thereby giving rise to a duty of care to prevent such injuries. Allen v. Cox, 285 Conn. 603 (2008)