10/23/2015
Conn. Court Grants Immunity to Town Whose Firetruck Caused I­95 Accident
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http://www.ctlawtribune.com/id=1202740491708/Conn­Court­Grants­Immunity­to­Town­Whose­Firetruck­Caused­I95­Accident?mcode=0&curindex=0
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Conn. Court Grants Immunity to Town Whose Firetruck Caused I­95 Accident
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Conn. Court Grants
Immunity to Town
Whose Firetruck
Caused I-95 Accident
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Conn. Court Grants Immunity to Town Whose Firetruck Caused I­95 Accident
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Conn. Court Grants Immunity to
Town Whose Firetruck Caused I-95
Accident
Conn. Court Grants Immunity to Town Whose Firetruck
Caused I-95 Accident
Case centered on whether town fire department had immunity
Christian Nolan, The Connecticut Law Tribune
October 22, 2015 | 0 Comments
In a long-running legal dispute that's been followed by both plaintiffs lawyers and municipal
attorneys, the state Appellate Court has upheld a jury's decision not to award damages to a
man paralyzed on Interstate 95 after crashing into a parked fire truck responding to a prior
accident.
The plaintiff's appellate lawyer, Nathaniel "Nate" Baber of Aeton Law Partners in Middletown,
said governmental immunity prevented his client from recovering damages in a case in which
the defendants included the town of Greenwich. "I think it's important to note that the jury
did find the town was negligent and created a dangerous condition on the highway," said
Baber.
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Conn. Court Grants Immunity to Town Whose Firetruck Caused I­95 Accident
However, the negligent act—a decision to
park the fire truck across two lanes of the
highway—was considered a discretionary
act committed in the course of a
firefighter doing his job, so sovereign
immunity prevented any recovery. The
result might have been different if the jury
determined the conduct was ministerial; that is,
carrying out a duty that required no judgment call.
Law Firms Mentioned
Horton, Shields & Knox
Baber's client, William Kumah, was severely injured
after 4 a.m. on Sept. 3, 2006, when his vehicle
collided with a fire truck parked across the highway
by members of Greenwich's volunteer fire
department. The collision occurred near Exit 4 on
the southbound side of Interstate 95 in Greenwich.
At the time, the volunteer firefighters were directing
traffic at the scene of a tractor-trailer rollover that
had occurred a little more than two hours earlier.
In that crash, the driver, also headed southbound,
lost control of his rig and struck a Jersey barrier and bridge railing. The truck came to rest in
the right and center lanes of the highway. Because of the accident, 35 gallons of diesel fuel
leaked onto the highway.
Several rear-end collisions occurred in the aftermath of that accident. Emergency responders
temporarily closed the highway, and the volunteer firefighters parked their truck diagonally
across the center and right lanes. The truck was illuminated and the volunteers placed safety
cones and flares on the road leading up to it, so drivers would know to merge into the left
lane.
The tractor-trailer was removed, one lane was reopened and crews continued to clean up the
fuel spill. Meanwhile, Kumah was returning to his home on Long Island after transporting
family members living in Derby to and from a Long Island wedding. As he approached the
earlier accident scene, he skidded through the safety cones and smashed into the parked fire
truck and then into a bridge railing.
Kumah and his wife later sued Greenwich, as well as the tractor-trailer driver. In July 2010, the
driver filed a motion for summary judgment, arguing that the claim should be dismissed
because his accident was not the proximate cause of Kumah's catastrophic injuries. A trial
judge agreed and the state Appellate Court upheld the ruling.
The trial judge also granted Greenwich's motion to strike negligence and nuisance counts on
immunity grounds. But in a 2011 decision, the state Appellate Court disagreed with the trial
court and allowed the lawsuit against the town to continue.
That opinion was then challenged in the state Supreme Court. In January 2013, in a decision
involving complex statutory interpretation, the justices also sided with Kumah and allowed
the lawsuit against the town to proceed.
The case went to trial in Bridgeport Superior Court in January 2014 before Judge Dale
Radcliffe. Testimony lasted about two weeks. The jury deliberated for just over a half day
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Conn. Court Grants Immunity to Town Whose Firetruck Caused I­95 Accident
before rendering a defense verdict in favor of the town. Baber, in his appeal, argued that the
jury's defense verdict was contradictory.
Asked whether they thought the town was negligent, jurors answered "yes."
Next, the jurors were asked if the actions of the Greenwich firefighters involved judgment, or
discretion. Again, they answered "yes."
Then, on the nuisance count, the jurors answered "yes" to the question of whether they
thought the firefighters created a condition on the highway which could create "danger and
inflict injury to person and/or property." Finally, when asked if the use of the highway by the
defendants was unreasonable under the circumstances, the jurors answered "no." As a result
of that last answer, a defense verdict was rendered.
Baber, in arguing for a new trial, contended that the jury's verdict that the town was negligent
was inconsistent with the decision that the town's use of the land was not unreasonable. The
state Appellate Court said the verdict was not inconsistent.
"There were two separate and distinct causes of action implicating different elements and
standards" of negligence and nuisance, wrote Judge Robert Beach Jr. "The jury could have
found, for example, that a reasonably prudent town would have added more traffic cones or
placed them differently, but that it was not unreasonable overall, given the emergency, for the
town to interfere with the public's access to the highway generally by placing the fire truck in
front of the disabled tractor trailer and generally guarding the scene."
Baber said he was uncertain whether his clients would want to petition the state Supreme
Court to review the case. "Obviously I'm disappointed, my clients are disappointed," said
Baber.
The town was defended in this appeal by Brendon Levesque of Horton, Shields & Knox in
Hartford. Levesque said the decision was "thorough" and "correct." He expects it will provide
attorneys with some guidance regarding negligence and nuisance claims and how they
interrelate.
"I think plaintiffs lawyers are paying attention to this, municipal and town lawyers are paying
attention to this," Levesque opined. "It gives them some clarity on how these two torts work
together or don't work together." •
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Appeals Court Says No to Frenchman's Efforts to
Reclaim Van Gogh Work from Yale
Law Tribune Staff, The Connecticut Law Tribune
October 22, 2015 | 0 Comments
A federal appeals court has awarded Yale University a victory in round two over a longrunning wrestling match over a Van Gogh painting that is valued at $200 million.
The U.S. Court of Appeals for the Second Circuit rejected the arguments that the masterpiece,
"The Night Café," be returned to the family from which it was taken by the Bolshevik
government of Russia in 1918. In making its ruling, the court upheld a Connecticut judge's
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ruling that the the "act of state" doctrine precluded the claims of French citizen Pierre
Konowaloff. The doctrine generally requires U.S. courts to presume the validity and legality of
a foreign state's action with regard to its own nationals within its own borders.
Konowaloff's family history is compelling.
His great-grandfather, an industrialist
named Ivan Abramovich Morozov, was a
major art collector in early 20th-century
Russia. Along with two other majory
collections, his artwork was "expropriated"
by the revolutionary Soviet government. In 1933,
"The Night Cafe" and a work by French master Paul
Cezanne, "Madame Cezanne in the Conservatory,"
were sold by the Soviets to Stephen Carlton Clark,
an American collector who was also the founder of
the Baseball Hall of Fame. Clark donated them in his
will, one to his alma mater, Yale, and the other to
the Metropolitan Museum of Art in New York City.
Sections
International Law (Public)
About a half dozen years ago, Konowaloff sought to
have the materpiecces returned to his family.
In 2009, Yale sued Konowaloff in U.S. District Court
in an effort to asserting ownership of the painting.
Konowaloff filed a response and counterclaim later
that year. Konowaloff claimed that Russia's seizure of the painting violated international law
and that Russia's failure to pay his great-grandfather upon his death in 1921 meant the
painting rightfully belonged to him.
At the time, Konowaloff's attorney, Allan Gerson, said in court documents that Yale's
arguments constituted asking courts to "rubber-stamp good title on any dictator's plunder."
But in a 2010 motion requesting a summary judgment, the university offered three main
arguments against Konowaloff's claims: that they were made beyond any statute of
limitations; that the act-of-state doctrine prevented Konowaloff from "mounting a legal
challenge to the validity of Russia's decree in a U.S. court"; and that a foreign nation's seizure
"of its own national's property within its own borders does not violate international law."
Yale argued that a court decision in Konowaloff's favor could have invalidated the ownership
of tens of billions of dollars' worth of artwork in galleries around the world.
Last year, U.S. District Judge Alvin Thompson sided with Yale, and Knowaloff appealed. Earlier
this month, Gerson squared off against Wiggin and Dana attorney Jonathan Freiman, who
represented Yale in oral arguments before the Second Circuit. In a brief decision issued Oct.
26, the Second Circuit upheld the Connecticut judge's act of state rationale and rejected other
arguments made by Knowaloff.
The act of state doctrine was also applied in an unsuccessful 2012 lawsuit by Konowaloff
against the Metropolitan Museum of Art over ownership of the Cézanne work.
The latest Second Circuit decision was criticized by Gerson, a Washington, D.C., based
attorney who is known for his efforts to sue foreign governments for acts of terrorism. After
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the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland, he initiated the first civil suit
against a foreign state on behalf of families of the victims.
In the Van Gogh case, Gerson said the latest ruling denied his client the opportunity to be
heard in court and to show documents obtained from the Russian government supporting his
claim that the man who gave the painting to Yale was a thief. "I have never seen such short
shrift given to a serious argument," Gerson said. "The history books will show that this was
really a terrible decision."
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