Appellate Court Notes - Week of December 13

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Welcome to our Supreme and Appellate Court summaries.  I  have provided abbreviated summaries of decisions from the Connecticut appellate courts which highlight important issues and developments in Connecticut law, and provide practical practice pointers to litigants.  I have been summarizing these court decisions internally for our firm for more than 10 years, and providing relevant highlights to my municipal and insurance practice clients for almost as long.  It was suggested that a wider audience might appreciate brief summaries of recent rulings that condense often long and confusing decisions down to their basic elements.  These summaries are limited to the civil litigation decisions based on my own particular field of practice, so you will not find distillations of the many criminal and matrimonial law decisions on this page.  I may from time to time add commentary, and may even criticize a decision’s reasoning. Such commentary is solely my opinion . . . and when mistakes of trial counsel are highlighted because they triggered a particular outcome, I will try to be mindful of the adage . . . “There but for the grace of God . . ..”  I hope the reader finds these summaries helpful. – Edward P. McCreery

Posted December 13, 2013

This is a case where a little more effort should have gone into a Motion to Dismiss.  The Appellate Court held that the Trial Court improperly dismissed a case against the Town for failure of the plaintiff to comply with the highway defect statute.  The allegations were that the accident happened on a private driveway, off a public highway, into a shopping center, but which was maintained by the Town.  The Town moved to Dismiss the action simply asserting that the statute applied and no notice was given.  But the Appellate Court said that one could not tell from the facts in the record whether this was a public highway or not and so dismissal should not have been granted.  They did brush aside plaintiff’s argument that subject matter jurisdiction should be raised via a Motion to Strike.   It was properly raised by a Motion to Dismiss. The decision suggested the Town should have submitted, by way of affidavit, undisputable facts about the use of the driveway to show that it was open to the public. 

Judge Lavine dissented saying the burden should have been upon the plaintiff to show the statute did not apply as soon as he was alleging an accident in a roadway.  (Touché.)

The average person is not familiar with carpentry skills so the plaintiff was obligated to present an expert witness to establish that it was negligence for the defendant to try and cover up a hole on a stage with only ¼ “ plywood……which of course he fell through.

  • AC35050 - Citimortgage, Inc. v. Coolbeth

Second time is the charm.  When plaintiff moved for Summary Judgment ("SJ") in its foreclosure action against defenses of fraud allegedly perpetrated by the mortgage broker, its SJ was denied for not ruling out an agency relationship with the broker.  In its second effort at SJ, the plaintiff attached affidavits of an employee along with corporate filings to refute any agency relationship with the broker.  The plaintiff in rebuttal simply resubmitted the original SJ opposition documents and a self-serving affidavit from the plaintiff alleging generically that the defendants made representations and took actions….but never specifying which one nor offering evidence of an agency relationship between them.  This was insufficient to establish admissible evidence of a potential agency relation and SJ was properly granted to the mortgagee.

The General Verdict Rule precluded plaintiff’s challenge to a slip and fall (jury) verdict for the defendant.  The plaintiff should have asked for jury interrogatories in order to challenge almost anything that happened at trial.  Thus the plaintiff here could not challenge the trial judge’s evidentiary ruling on whether the defendant prevailed on its special defense of contributory negligence greater than 50 percent... which by the way….was properly raised as a special defense.  The Trial Judge was not required to disqualify herself because of a very minor (non-blood) relationship with the defendant (not within the third degree of consanguinity) and potentially having visited the property once in the distant past.


The facts and holdings of any case may be redacted, paraphrased or condensed for ease of reading.  No summary can be an exact rendering of any decision, however, so interested readers are referred to the full decisions.  The docket number of each case is a hyperlink to the Connecticut Judicial Department online slip opinion. 

[View source.]

Topics:  Affidavits, Appeals, Evidence, Expert Witness, General Verdict Rule, Motion to Dismiss, Motion To Strike, Summary Judgment

Published In: Civil Procedure Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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