By James E. Wildes [*]
This review covers some of most important tort cases and related developments from 2020 through some of 2022. The focus of the article is on appellate decisions. In recent years, there has been some concern about whether the deceasing number of trials will impede the development of the law. It appears that, at least in Connecticut, tort and civil litigation continues to yield a large number of cases. Some decisions are discussed in greater depth than others. The volume of cases necessarily requires that some cases not be included in this survey. The areas of the law most prominently represented in this article include damages, defamation, governmental immunity, indemnification, motor vehicle, negligence, premises liability, professional negligence, trial practice, underinsured motorist, and workers' compensation.
I. Abnormally Dangerous Activities
In Gonzalez v. O & G Industries, Inc., [1] the principal issue was whether a gas blow procedure employed by the defendants was an abnormally dangerous activity, a determination which would subject the defendants to strict liability. The facts that gave rise to the lawsuit involved the construction of a power plant that was nearing completion.[2] Before the power generating equipment could start up, the manufacturer of the gas turbines required that the natural gas fuel supply pipelines be cleared of construction debris.[3] In order to clear the debris from the pipelines, the named defendant and its subcontractors performed a procedure commonly referred to as a "gas blow," in which natural gas flows through the piping at a higher pressure than during normal operation to propel debris through the pipeline until it is ejected.[4]
A blast occurred during this procedure that took the lives of six construction employees and injured nearly thirty more.[5] Some of the victims and their families brought suit against the owner of the power plant, the owner's agent, the general contractor and others.[6] On appeal, the plaintiffs contended that the trial court improperly rendered judgment in favor of the defendants on their strict liability claims.[7] The Supreme Court disagreed with the plaintiffs and affirmed.[8] The Court stated that strict liability is imposed on a defendant who engages in any intrinsically dangerous, ultrahazardous or abnormally dangerous activity.[9] Under this doctrine, a plaintiff is not required to show that his or her loss was caused by the defendant's negligence because it is sufficient to show only that the defendant engaged in the activity that caused the loss.[10] The Court in reaching its conclusion looked to its own precedents, as well as the Restatement (Second) of Torts Sections 519 and 520.[11] Specifically, the Court referred to the six factors set forth in Section 520 in determining whether an activity is abnormally dangerous: (a) the existence of a high degree of risk of some harm to the person, land or chattels of others; (b) the likelihood that the harm that results from it will be great; (c) the inability to eliminate the risk by the exercise of reasonable care; (d) the extent to which the activity is not a matter of common usage; (e) the inappropriateness of the activity to the place where it is carried on; and (1) the extent to which its value to the community is outweighed by its dangerous attributes.[12] The Court concluded after reviewing the six factors and its prior case law that the gas blow procedure was not an abnormally dangerous activity and, therefore, the plaintiffs could not maintain a strict liability cause of action against the defendants.[13]
II. Apportionment
In Costanzo v. Town of Plainfield, [14] the central issue was whether the apportionment statute, General Statutes Section 52-572h(o),[15] permits municipal defendants whose liability is based General Statutes Section 52-557n(b)(8),[16] to file an apportionment complaint sounding in negligence. The plaintiff, the administratrix of the estate of the decedent, brought claims against the defendants, the town of Plainfield and two of its employees, pursuant to Section 52-557n(b)(8), arising out of the drowning of the decedent in a pool located on privately owned property in the town.[17] The Court stated that Section 52-572h(o) expressly prohibits apportionment claims between a party liable for negligence and a party liable pursuant to any action created by statute, except where liability may be apportioned among parties liable for negligence in an action created by statute based upon negligence.[18] The plaintiff objected to the defendants' efforts to seek apportionment against the owners of the property where the pool was located, arguing that the complaint set forth a cause of action alleging recklessness or intentional acts under Section 52-557n(b)(8), rather than negligence.[19] The Court explained that there are two distinct causes of action available under Section 52-557n(b)(8): one that requires notice of a violation or hazard; and another that requires a reckless disregard for health or safety.[20] The Court concluded that the first exception is directed at negligent conduct, not intentional conduct.[21] The Court held that the plaintiff alleged, at least in part, a claim created by statute based on negligence and, therefore, it found that the Appellate Court correctly overruled the trial court order dismissing the defendants' apportionment complaint and notice of intent to seek apportionment.[22]
III. Damages
In Maldonado v. Flannery, [23] the Supreme reversed the Appellate Court, which had held that the trial court had improperly ordered additurs in the amount of $8000 in favor of first named plaintiff and $6500 in favor of the other plaintiff. The jury had awarded the first named plaintiff $17,228,38 in economic damages and zero noneconomic damages and awarded the other plaintiff $11,864.94 in economic damages and zero noneconomic damages.[24] The Supreme Court noted that its caselaw has articulated that the trial court must conduct its own independent evaluation of the record to determine if the jury could have rendered its verdict on the basis of the facts and reasonable inferences drawn therefrom.[25] The Court further noted that the standard to be employed by the trial court is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, mistake or corruption.[26] The Court also noted that if the trial court concludes that the jury's award of damages is excessive or inadequate and that the motion to set aside should be granted, the trial court must provide an explanation setting forth the reasons for the decision.[27] In addition, the Court stated although an award of economic damages and zero noneconomic damages is not per se inadequate as a matter of law, this does not mean that all split verdicts should be sanctioned.[28] The Court emphasized that noneconomic damages are not an optional element of damages if the physical injuries that form the basis for the jury's award of economic damages caused the plaintiff to have pain and suffering.[29] Turning to the instant case, the Court found that the trial court's articulation of the grounds for granting the plaintiffs' joint motion for additurs was adequate for appellate review.[30] The Court concluded that it was inconsistent for the jury to find, on one hand, that the plaintiffs sustained injuries in the accident that required medical treatment, but also find, on the other hand, that the plaintiffs experienced no pain or suffering that warranted an award of noneconomic damages.[31] Because the trial court could have reasonably found that the verdict was inconsistent, the Court held that the trial court's decision to grant the plaintiffs joint motion for additur was not an abuse of discretion.[32]
In Fain v. Benak, [33] the issue was whether the plaintiff presented sufficient evidence to support an award for future medical expenses. The case was tried to the court after which judgment was entered for the plaintiff in the amount of $344,867.33.[34] The award included economic damages of $84,867.33 and noneconomic damages of $260,000.[35] The court granted the plaintiffs motion for reconsideration and added $14,250 for future medical expenses.[36] The Appellate Court stated that an award of future medical expenses should be based upon an estimate of reasonable probabilities, not possibilities.[37] The Court stated that future medical expenses can be calculated based upon the history of medical expenses that have accrued as of the trial date when there is a degree of medical certainty that future medical expenses will be necessary.[38] The Court reviewed the evidence and found that the treating physician's letter and other evidence supported the conclusion that the plaintiff would incur future medical expenses and also provided evidence of the costs of the medical expenses.[39] The Court concluded that the trial court did not abuse its discretion in granting the motion for reconsideration and in finding that the evidence was sufficient to support the award of future medical expenses.[40]
IV. Defamation
NetScout Systems, Inc. v. Gartner, Inc.[41] concerned the sometimes elusive distinction between actionable statements of fact and nonactionable statements of opinion. The plaintiff, a business involved with the development and selling of information technology products, sued the defendant, a publisher of research reports in which it rates vendors, such as the plaintiff, that sell and service various forms of information technology, in defamation and for violating the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes Section 42-110a et seq.[42] The Supreme Court...
