McDermott v. State

316 Conn. 601

113 A.3d 419

Madeline McDERMOTT, Administratrix (Estate of William McDermott), et al.

v.STATE of Connecticut.

No. 19221.

Supreme Court of Connecticut.

Argued Jan. 9, 2015.

Decided April 28, 2015.

Hugh D. Hughes, New Haven, with whom, on the brief, was Thomas McNamara, for the appellants (plaintiffs).

Michael R. Bullers, assistant attorney general, with whom were Maite Barainca, assistant attorney general, and, on the brief, George Jepsen, attorney general, for the appellee (state).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH and ESPINOSA, Js.

Opinion

EVELEIGH, J.

The plaintiff, Madeline McDermott, both individually and in her capacity as administratrix of the estate of her husband, William McDermott (decedent),¹ appeals from the judgment of the Appellate Court, reversing the judgment of the trial court in her favor and remanding the case with direction to render judgment in favor of the defendant, the state of Connecticut. See McDermott v. State, 145 Conn.App. 75, 73 A.3d 886 (2013). On appeal to this court, the plaintiff contends that the Appellate Court improperly reversed the judgment of the trial court on the ground that the trial court had improperly determined that the defendant had assumed a greater duty of care than reflected in industry standards. The plaintiff also claims that the Appellate Court improperly concluded that the defendant's actions were not the proximate cause of the death of the decedent. While we agree with the Appellate Court that the judgment of the trial court must be reversed, we disagree with the Appellate Court's decision to remand the present case to the trial court with direction to render judgment in favor of the defendant. Instead, we conclude that the trial court used the wrong standard in determining that the defendant was liable and, therefore, under our case law, the matter must be returned to the trial court for a new trial in which the proper standard is applied. Therefore, we affirm the judgment of the Appellate Court in part, reverse the judgment of the Appellate Court in part, and order a new trial.

The opinion of the Appellate Court sets forth the following facts and procedural history. “On February 8, 2005, employees from the defendant's Department of Transportation were dispatched to Cromwell to remove a fifty-five foot sugar maple tree that was located on a grass strip bounded easterly by Main Street and westerly by a pedestrian sidewalk. Upon arrival, the work crew, consisting of six men, marked the work site with two traffic cones that were placed on the sidewalk. One cone was located approximately eighty–five feet to the south of the tree, and the other cone was located approximately [100] feet to the north of the tree. The two cones were not moved during the course of the tree removal operation.

“The crew then proceeded to remove the limbs from the tree. After the ‘limbing’ had been completed, the crew removed the remaining tree trunk in segments beginning at the top and progressing downward, a procedure known as ‘chunking.’ At approximately 1:30 p.m., the decedent, a pedestrian with no connection to the removal operation, approached the work site. He walked approximately thirty feet past the southern sidewalk cone and stood between two members of the work crew. At that point, the three men were approximately fifty-five feet from the surface of the tree, which was now approximately twenty-five feet in height. They watched as another crew member in a bucket truck prepared to remove an additional ten foot chunk from the tree trunk. One end of a rope was tied to the top of the remaining tree, and the other end of the rope was tied to a pickup truck. After appropriate cuts were made in the tree, the pickup truck pulled the truck segment in a southerly direction. The tree segment fell to the ground in a controlled manner and landed in the general area in which it was anticipated to fall.

“When the trunk segment hit the ground, however, it fell on one of the limbs that previously had been removed from the tree. The limb, described as a log approximately twenty-five inches in length, was propelled into the air by the force of the falling trunk segment, and it flew at great speed and a low trajectory toward the decedent and the two crew members. The log struck the decedent's forehead. He fell backward and hit the back of his head on the sidewalk. After striking the decedent, the log continued to travel more than thirty additional feet and came to rest approximately ninety feet from the tree. The decedent died as the result of being hit by the log, either by the force of the log's impact with his forehead or by hitting the back of his head on the sidewalk after the impact caused him to fall backward. The plaintiff commenced this action against the defendant, seeking damages for wrongful death and loss of consortium, after permission to sue had been granted by the [C]laims [C]ommissioner pursuant to General Statutes § 4–160 et seq.

“By agreement of the parties, the court bifurcated the liability and damages phases of the trial. After seven days of evidence, the court issued a memorandum of decision on June 15, 2011, concluding that the defendant was liable to the plaintiff on both counts of her complaint. In that decision, the court made the following determinations: (1) the exact circumstances of the decedent's death were not reasonably foreseeable because there was no evidence that anyone had ever been killed or injured in such a manner from such a distance during a tree removal operation; (2) the prevailing safety standard in the tree removal industry is that persons who are not directly involved in cutting the tree should stand at least two tree lengths away from the tree; (3) the decedent was standing more than two tree lengths away from the remaining tree trunk when he was struck by the log; (4) the prevailing safety standard did not absolve the defendant from liability because ‘ “[e]vidence of custom in the trade ... is not conclusive” ’; (5) the fact that the decedent was standing within the area marked by the sidewalk traffic cones was the ‘determinative’ factor in this case; (6) although the cones could have been moved closer to the tree as chunks of the tree trunk were removed, the crew did not move the cones and the defendant ‘voluntarily assumed a duty that may not have been legally imposed upon it otherwise’; (7) ‘requiring work crews to keep bystanders and pedestrians out of work zones that they themselves have established is entirely consistent with the public policy favoring a safe populace and a realistic vision of acceptable risk’; (8) in demarcating the limits of the work zone with the traffic cones, the work crew established the limits of its duty to the decedent; (9) the defendant violated that duty of care by allowing the decedent to stand within the demarcated work zone during the tree removal operation; and (10) the defendant's violation of that duty of care proximately caused the decedent's death. The court subsequently held a hearing in damages and awarded the plaintiff $46,371.65 in economic damages, $825,000 in noneconomic damages, and $435,000 in damages for loss of consortium.” Id., at 77–79, 73 A.3d 886.

In addition, although the trial court held that the exact circumstances of the decedent's death were not foreseeable, the trial court noted correctly that “to meet the test of foreseeability, the exact nature of the harm suffered need not have been foreseeable, only the ‘general’ nature of the harm.” (Emphasis omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 573, 717 A.2d 215 (1998). The trial court further stated that “[w]hile the specific event that caused [the decedent's] death was not legitimately foreseeable, the general nature of the harm (i.e., the possibility of a bystander suffering injury or death within the perimeter of a tree removal site), certainly was.” Additional facts will be set forth as necessary.

A majority of the Appellate Court panel disagreed with the trial court that the defendant in the present case assumed the duty to remove the decedent from the area in which he was standing simply because of the location of the cones.² McDermott v. State, supra, 145 Conn.App. at 83, 73 A.3d 886. The Appellate Court held that the trial court did not make sufficient findings to justify a conclusion that the defendant had voluntarily assumed a greater duty. Id., at 84, 73 A.3d 886. Further, the Appellate Court held that, under the circumstances of the present case, the defendant's conduct was not the proximate cause of the decedent's death. Id. Therefore, the Appellate Court reversed the judgment of the trial court and remanded the matter to the trial court with direction to render judgment in favor of the defendant. Id., at 87, 73 A.3d 886. The plaintiff filed a petition for certification to appeal, which we granted, limited to the following questions: (1) “Did the Appellate Court properly reverse the judgment of the trial court on the basis that the trial court incorrectly found that the [defendant] had assumed a greater duty of care than that reflected in industry custom or standards?”; and (2) “Did the Appellate Court properly conclude that the [defendant's conduct] was not the proximate cause of the death of the [plaintiff's] decedent?” McDermott v. State, 310 Conn. 937, 79 A.3d 890 (2013).

On appeal, the plaintiff contends that the Appellate Court improperly: (1) held that an industry standard of care for workers binds courts to apply it to pedestrians in the absence of a specifically articulated finding that the industry standard is unreasonable; (2) disturbed the trial court's finding that the harm was reasonably foreseeable; (3) required the plaintiff to show the specific kind of harm that occurred in the past; and (4) determined that there was no proximate cause. In response, the defendant asserts that the Appellate Court properly concluded that the trial court had incorrectly determined that the defendant...