By James E. Wildes [*]
In this article significant tort developments from 2022 through some of 2024 are covered. Some decisions are discussed in more depth than others. The number of decisions that were decided requires that some cases not be included in this survey or that some cases be discussed only briefly. The areas of the law represented in this article include defamation, governmental immunity, malicious prosecution, premises liability, professional negligence, sovereign immunity, trial practice, vexatious litigation and underinsured motorist.
I. Animal Liability
In Houghtaling v. Benevides,[1] the Appellate Court affirmed the summary judgment entered in favor of the defendant, Jakub Micengendler, because the plaintiff at the time she was injured was a keeper of the dog that allegedly caused her injuries. The plaintiff had borrowed a vehicle from the named defendant and agreed to take the named defendant's dog with her in the car while she went to an appointment.[2] The plaintiff alleged that the named defendant and Micengendler were the owners and/or keepers of the dog and were liable under General Statutes Section 22-357.[3] The trial court granted Micengendler's motion for summary judgment, concluding that there was no genuine issue of material fact that the plaintiff was a keeper of the dog at the time of the incident.[4] On appeal, the plaintiff argued that, at most, she had temporary physical custody of the dog and that such custody did not rise to the level of possession for purposes of Section 22-357.[5] The Court explained that a keeper of a dog is precluded from recovery under Section 22-357.[6] The Court further explained that a person will not be deemed to be a keeper of a dog unless that person exercises control over the dog in a manner similar to that which would ordinarily be exerted by an owner.[7] The Court also explained that proof of being a keeper generally consists of evidence that the nonowner was feeding, giving water to, exercising, sheltering, or otherwise caring for the dog when the incident happened.[8] The Court agreed with the trial court that the plaintiff was a keeper for several reasons: (1) the plaintiff voluntarily agreed to take the dog with her to the appointment in the car that she borrowed; (2) the plaintiff had sole possession of the dog at the time that the incident occurred; (3) the plaintiff exercised control over the dog's actions from the moment that she took the dog; and (4) the plaintiff was in possession of both the car and the dog in a location away from the owner's property at the time of the incident.[9]
II. Defamation
Whether a defendant in a defamation action should be afforded absolute immunity in a suit for statements made during a university proceeding on sexual misconduct was the central issue in Khan v. Yale University.[10] By way of background, in the proceeding held by the defendant Yale University, the defendant Jane Doe accused the plaintiff of sexual assault in violation of Yale's sexual misconduct policy, resulting in the plaintiff's expulsion from school.[11] The Supreme Court stated that absolute immunity attaches to statements made in judicial or quasi-judicial proceedings.[12] The Court stated when Doe made accusations during a criminal trial, an official governmental proceeding with procedural safeguards, Doe enjoyed absolute immunity in any subsequent civil action claiming her testimony during the criminal proceeding was defamatory.[13] The plaintiff argued that the Yale proceeding was not quasi-judicial because it was neither a governmental proceeding nor a proceeding with sufficient judicial-like procedures to protect him from defamatory statements.[14] The Court explained that a proceeding is quasi-judicial only when the proceeding is specifically authorized by law, applies law to fact in an adjudicatory manner, contains adequate procedural safeguards, and is supported by public policy encouraging absolute immunity for proceeding participants.[15] The Court concluded that the proceeding in issue did not meet the conditions necessary to be considered quasi-judicial and, therefore, Doe was not entitled to absolute immunity.[16] However, the Court decided that a qualified privilege was appropriate for alleged victims of sexual assault in the context of the case.[17] The Court further found that the factual allegations in the plaintiff's complaint, including that the statements were made with malice, defeated the defendant's asserted privilege at the motion to dismiss stage of the proceedings.[18] The Court added that, at a later stage of the proceedings, with a more fulsome factual record, it may be appropriate to revisit whether the qualified privilege had been defeated.[19] In explaining its conclusion, the Court stated that Connecticut had long held that communications stated or published in the course of judicial proceedings are absolutely privileged as long as they are in some way relevant to the subject of the controversy.[20] The Court found that the proceeding in question could not properly be recognized as quasi-judicial because it lacked the adequate procedural safeguards necessary for absolute immunity to apply.[21] The Court stressed that the proceeding failed: to require the complainant to testify under oath; to afford the plaintiff or his counsel a meaningful opportunity to cross examine adverse witnesses in real time; to provide plaintiff a reasonable opportunity to call witnesses to testify; to afford the plaintiff an opportunity to have active assistance of counsel during the proceeding; and to provide the plaintiff a record or transcript of the proceeding that would assist him in obtaining adequate review.[22] The Court stated that not all of the procedural safeguards were required for a hearing to be recognized as quasi-judicial, but the collective absence of such features militated against a determination that the proceeding in question had adequate safeguards to ensure reliability and promote fundamental fairness.[23]
The distinct pleading requirements for defamation per se and defamation per quod were addressed in Stevens v. Khalily.[24] The plaintiff sued his ex-wife's mother and ex-wife's stepfather for defamation.[25] He alleged that his ex-wife's stepfather stated to representatives of the Department of Children and Families (department) that he was in the habit of sleeping with transvestite prostitutes.[26] He also alleged that his ex-wife's mother told representatives of the department that he had engaged in physical violence, had no interest in spending time with his daughter, was only interested in seeing his child to the extent that she was the beneficiary of a $50 million trust, lived a dangerous lifestyle, and was so desperate for money that he would prostitute his daughter.[27] The plaintiff, on appeal, argued that the trial court erred in striking the above claims for failure to plead defamation with requisite specificity.[28] The Appellate Court affirmed, concluding that the plaintiff failed to plead reputational harm, an element of defamation.[29] The Court reviewed the elements of a defamation action: (1) the defendant published a defamatory statement; (2) the statement identified the plaintiff to a third person; (3) the statement was published to a third person; and (4) the plaintiff's reputation was harmed.[30] The Court added that each statement furnishes a separate cause of action.[31] Whether a party must allege facts sufficient to prove reputational harm depends on the type of defamation: per se or per quod.[32] The Court summarized the law on defamation per se: A plaintiff must show that the libel, on its face, either charged some impropriety in the plaintiff's business or profession or that it charged a crime of moral turpitude or to which an infamous penalty is attached.[33] The Court additionally explained that, in a defamation per se action, proof of actual damages is not necessary in order to recover general damages; as opposed to a defamation per quod claim where the plaintiff may recover general damages for harm to their reputation only upon proof of actual damages.[34] Turning to the subject case, the Court noted that counsel for the plaintiff conceded at oral argument that the statements in question were not defamatory per se.[35] The Court stated that in the operative complaint the plaintiff alleged he suffered fear, terror and emotional distress as a result of the alleged defamatory statements made by the defendants.[36] The plaintiff attempted to argue that the trial court may reasonably infer reputational harm from the harms pleaded.[37] The Court disagreed with the plaintiff, stating that neither fear, terror nor emotional distress relate to the community perception of the plaintiff.[38] The Court found that the trial court properly granted the defendants' motion to strike because the plaintiff's complaint was devoid of any allegations of harm that he suffered to his reputation as a result of the alleged defamatory statements.[39]
III. Defective Highway
Murphy v. Clinton[40] addressed the notice requirements contained in General Statutes Section 13a-149. The plaintiff claimed she was injured when she tripped and fell while crossing a street in Clinton.[41] The plaintiff provided written notice pursuant Section 13a-149 to the defendant, which included a written description and photographs of the alleged defect.[42] The defendant argued that the language that the plaintiff set forth in the notice was conclusory and that the photographs included as part of the notice could not cure the lack of express language in describing the alleged defect.[43] The trial court found that the notice was not sufficient and granted the defendant's motion to dismiss.[44] The Appellate Court, in reversing the judgment dismissing the case, noted that the failure to comply with the...
