Welcome to our Supreme and Appellate Court summaries . Here, I provide 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 March 10, 2014
Town appealed a $12 million jury verdict when a volunteer fire fighter was sideswiped and then took off after the offending vehicle. He relayed to the police dispatcher that he was following the vehicle, but did not advise the town of his speed or that he had activated his blue volunteer fire lights. The pursuit lasted several miles at up to 50 miles per hour on windy country roads, until the plaintiff’s vehicle crashed, resulting in the driver’s traumatic brain injury. The phone communications to the 911 Operator were calm, and ended when the chase vehicle reported that the car had just rolled over and was on fire. The jury agreed with the plaintiff that the town had condoned an illegal pursuit. On appeal, the town claimed it was protected by the common law doctrine of government immunity and C.G.S. § 52-557(n), despite the jury specifically finding that the Identifiable Person Subject to Imminent Harm Exception elements were met.
On motion to set aside the verdict, the Trial Court agreed that the elements were met because the pursuit vehicle had relayed the license plate number to the dispatcher. At that point, the 911 Dispatcher should have instructed him to stop the pursuit. The Supreme Court reversed agreeing with the Town, that there were insufficient facts to apply the Identifiable Person/Imminent Harm Exception. It is a subjective test, and thus only what the dispatcher actually knew is relevant. The Record here does not lead to a conclusion that the dispatcher would have known the chase would likely have resulted in imminent harm to the other driver. There is no background squealing of tires in the phone call, no information of anyone speeding or driving aggressively being conveyed, and no transmittal of information that volunteer lights were being utilized. Because it is a subjective standard, the dispatcher was not required to ask questions to seek more information about what was going on. Government officials are not required to engage in inquiry beyond the information conveyed to them in exercising their discretionary decisions. It did not matter that the dispatcher knew the area consisted of winding roads without information being conveyed to her that the chase was exceeding the speed limit. The dispatcher is not obligated to try and guess at the speed. The driver’s only communication was that he was trying to catch up to him, but never identified a speed. [Should you ever have one of these cases, pay particular attention to Footnote 13, where the Court noted it was taking the opportunity to clarify the relationship between the Public verses Private Duty distinction, the Identifiable Person-Imminent Harm Exception and C.G.S. § 52-557(n). If you meet the Identifiable Person test, then you have established a private duty to the injured plaintiff which, in turn, is a prerequisite to sue under C.G.S. § 52-557(n).]
The Dissent argued that the decision would encourage municipalities to engage in willful blindness to dangers that might be prevented through institution of better training programs. The Majority replied that not imposing liability for dangers which a Government officer cannot be aware of, protects important Government functions as it shields the officers from hindsight, second guessing and retaliatory lawsuits.
AC35245 - Sean O’Kane A.I.A. Architect, P.C. v. Puljic
Architect sued for unpaid services under a breach of contract and unjust enrichment. Defendant raised a statute of limitations to the breach of contract claim and laches to the unjust enrichment claim as special defenses. Plaintiff responded by asserting as a matter in avoidance that the parties had entered into a standstill agreement until arbitration with the underlying builder was resolved, thus tolling the statute of limitations. The Trial Court found that the claims were barred by the special defenses. On appeal, the architect claimed he was technically still working on the project, because his contract called for continuing to work through the issuance of the CO, and therefore, he fell within the Continuous Representation Doctrine.
The Appellate Court noted that the Continuous Representation Doctrine so far has only been applied to attorneys in Connecticut because of the ethical obligation overlays. The Court pointed to a Footnote of the Supreme Court Decision in DeLeo, suggesting it only applies to attorney malpractice actions. Therefore that doctrine does not apply. This case also does not qualify for the Course of Employment Doctrine, where services are rendered over a lengthy period of time without an express, fixed term, in which event compensation is due and the statute begins to run when the services are complete. Here, the architect’s contract had specific provisions for when bills would be issued and when payments were due. Finally, the plaintiff offered no evidence that there was a standstill agreement to toll the statute of limitations. Although the plaintiff at one point made that allegation, and the defendants admitted it in a counterclaim, the plaintiff subsequently withdrew that allegation in a later amended complaint. Further, the Trial Court could credit the testimony of the defendant that there was no such agreement.
The Appellate Court did, however, remand the case on the claim of unjust enrichment and the special defense of laches to that claim. The defense of laches does not apply to an unjust enrichment claim unless there has been an unreasonable, inexcusable, and prejudicial delay in bringing the suit. Delay alone is not sufficient. The Trial Court found that laches applied solely because there had been a seven year delay that would trigger a higher interest award. The Trial Court did not properly analyze the unjust enrichment claim and the laches defense to it. First, it did not make a finding whether or not the defendant was a party to the contract. Unjust enrichment is not available to a party to a contract. In that event, they are limited to their contractual damages. Additionally, the Trial Court did not properly apply the Rule of Prejudice for the purpose of the application of the defense laches to the claim of unjust enrichment. The matter was remanded for the Court first to decide whether the defendant was a party to the contract, and if not, the unjust enrichment claim could proceed unless the special defense of laches applied under the Rule of Prejudice.
Plaintiff and his brother retained defendant attorney for the development of a piece of real property. The brothers entered into an agreement drafted by the attorney conveying property owned by each of them 50/50 to a new corporation, with each brother owning 50% of the shares of the stock. The corporation was to construct six condominiums, with the net proceeds from the first three units to go to the plaintiff, and the net proceeds from the second three units to go to the other brother. The law firm made the mistake of delivering the proceeds intended for the plaintiff, to his brother, who cashed the checks without a proper endorsement. The defendant lawyer was sued for tortuously delivering the plaintiff’s checks to the plaintiff’s brother.
The plaintiff claimed he had expressed concerns about his brother’s honesty to the lawyer. After the plaintiff rested, the defendant moved for a directed verdict, which the Trial Court granted due to the lack of an expert witness.
On appeal, the plaintiff claimed that he did not need expert testimony to prove his claim of professional negligence. This decision held that although labeled professional negligence, a plenary review of the pleadings suggests the complaint’s first count could equally be deemed to be a claim of ordinary negligence for mishandling of the funds. In issues of ordinary negligence, expert testimony is not required. Expert testimony is not required even if it is an allegation of professional negligence, if the issues are not beyond the knowledge of an ordinary juror. The Trial Court believed the case implicated expert testimony because of the complicated underlying transaction and the long-standing relationship the attorney had with the parties.
The Appellate Court disagreed and concluded it was a simple matter of the defendant-attorney making out a check payable to one party, but delivering it to someone else, after allegedly having been warned about that person. Whether handing the check to the wrong person constitutes negligence is within a common experience of the juror and does not require an expert. A directed verdict should not have been granted on the grounds that an expert witness had not been presented.
The directed verdict should also not have been granted on the negligence claim for lack of proximate cause. The defendant argued that there was no evidence to suggest that he could know of the improper intent of the brother and the negligence of a bank employee allowing the check to be cashed without a proper endorsement. But the question of proximate causation belongs to the jury as trier of the fact.
A motion for directed verdict was, however, properly granted on the claim of breach of fiduciary duty. Not every breach in the context of an attorney/client relationship amounts to a breach of fiduciary duty. While the Connecticut Courts have not expressly limited the application of breach of fiduciary duty to only fraud, self-dealing or conflicts of interest, all of the cases have involved just such deviations. Here, no specific conflict of interest was established by the evidence. There was no evidence that Rule 1.7 of the RPC was implicated due to a conflict in representing both brothers at the same time. There was no suggestion the attorney intended to benefit one brother over the other. The evidence here might rise to the level of negligence (if the jury so decides), but not a breach of the duty of loyalty or honesty. Negligence alone is insufficient to support a claim of breach of fiduciary duty. [A footnote adds that wrongful depositing of a check by the recipient may be within the foreseeable scope of the risk created by negligently transferring the check to the wrong person.]
AC34279 - State v. Edwards
AC35572 - State v. Lisboa
AC35127 - Carmon v. Commissioner of Correction
AC35753 - State v. Francis
AC33746 - Antonio A. v. Commissioner of Correction