STATE OF CONNECTICUT
COMPENDIUM OF LAW
Prepared by
William H. Champlin, III
Lori Rittman Clark
Jared Cohane
Timothy T. Corey
Robert C. Hinton
Timothy P. Jensen
Peter J. Martin
Michael T. McCormack
Noble F. Allen
Hinckley, Allen & Snyder LLP
20 Church Street
Hartford, CT 06103
860-725-6200
Updated 2012
THE FOLLOWING IS A SYNOPSIS OF CERTAIN AREAS OF CONNECTICUT
LAW. IT IS DESIGNED TO PROVIDE A BRIEF REFERENCE OF SOME
BASIC LEGAL PRINCIPLES AND FOR USE AS A STARTING POINT FOR
FURTHER RESEARCH. IT IS NOT INTENDED TO AND DOES NOT
PROVIDE A COMPLETE OR COMPREHENSIVE DESCRIPTION AND
SHOULD NOT BE CONSTRUED AS PROVIDING LEGAL ADVICE TO THE
READER. FURTHER, AS THE LEGAL LANDSCAPE IN CONNECTICUT
CHANGES OFTEN, THE CITATIONS CONTAINED IN THIS COMPENDIUM
WILL COMMAND FURTHER RESEARCH FROM TIME TO TIME.
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PRE-SUIT AND INITIAL CONSIDERATIONS
Pre-Suit Notice Requirements/Prerequisites to Suit
Must give the State of Connecticut notice of any claim pursuant to CONN. GEN. STAT.
§§ 4-146, -147 (2012). Must be done within one year after accrual pursuant to § 4-148.
Any person, firm or corporation which has entered into a contract with the state, acting
through any of its departments, commissions or other agencies, for the design,
construction, construction management, repair or alteration of any highway, bridge,
building or other public works of the state or any political subdivision of the state must
provide written notice pursuant to CONN. GEN. STAT. § 4-61 to the agency head of the
department administering the contract as a condition precedent to instituting an action in
the superior court or arbitration under the American Arbitration Association’s
Construction Industry rules. This limited waiver of sovereign immunity commences with
the execution of the contract or the authorized commencement of work on the contract
project, whichever is earlier, and which ends three years after the acceptance of the work
by the agency head of the department administering the contract evidenced by a
certificate of acceptance issued to the contractor or three years after the termination of the
contract, whichever is earlier pursuant to CONN. GEN. STAT. § 4-61. See also Bacon
Constr. Co. v. Dep’t of Pub. Works, 294 Conn. 695 (2010).
Relationship to the Federal Rules of Civil Procedure
Connecticut has its own Code of Civil Procedure, which is markedly different from the
Federal Rules of Civil Procedure. The Connecticut Practice Book is divided into 84
chapters that articulate the rules of practice and procedure in the superior court in all civil
and family actions whether at law, in equity or otherwise, in all criminal proceedings,
juvenile matters and appellate proceedings. Connecticut, unlike the Federal Rules, is a
fact pleading state, requiring a plain and concise statement of the material facts on which
the pleader relies.
Description of the Organization of the State Court System
A)
Connecticut has a merit plan for selecting judges. The judicial selection
commission recommends qualified candidates to the governor for nomination.
The governor’s nominee must then be appointed by the general assembly. Judges
serve eight-year terms and must be re-nominated and reappointed. The judicial
selection commission also evaluates incumbent judges who seek reappointment.
Judges in the Probate system, however, are elected.
B)
The Connecticut court system consists of four courts: the Supreme Court, the
Appellate Court, the Superior Court, and the Probate Court. The Superior Court
is divided into thirteen judicial districts, twenty geographical areas and thirteen
juvenile districts. The Superior Court also has housing courts in six of the judicial
districts (Hartford, New Britain, Bridgeport, Norwalk and Waterbury) dedicated
to residential and commercial landlord-tenant disputes. Connecticut also has a
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Complex Litigation Docket in Stamford, Hartford and Waterbury. The Complex
Litigation Docket is generally comprised of complex civil litigation involving
multiple litigants and legally intricate issues. An individual judge presides over
all aspects of the litigation, including trial. In 2012, Connecticut also introduced a
dedicated land use docket for all administrative appeals concerning land use
matters such as zoning, wetlands and historic districts.
C)
D)
Connecticut does not have a comprehensive statewide statute for all methods of
alternative dispute resolution (“ADR”). In general, state statutes and Connecticut
Rules of Civil Procedure make ADR optional for civil cases pending in the
Superior Court.
1)
Arbitration is available for any civil case where the judgment is
expected to be less than $50,000 and a claim for a trial by jury and a
certificate of closed pleadings has been filed. Arbitration is authorized
pursuant to CONN. GEN. STAT. §§ 52-549u to 52-549aa (2012) and the
parties have a right to a trial de novo.
2)
Court annexed mediation, pursuant to CONN. GEN. STAT. § 51-5a
(2012) is available to civil and family cases which will require more
than a half-day pretrial conference to settle. Referral may be made by
a judge or by request of the parties at any time, subject to the approval
of the Presiding Judge or his or her designee. Family service
mediation to address dissolution cases on the limited contested and
contested case lists may address child custody, visitation, property and
financial issues.
The Judicial Branch offers electronic filing in civil and small claims matters. The
e-services include electronic short calendar markings entry and docket history.
Attorneys or firms who have appeared in a matter can access all documents that
have been filed electronically. The e-services also include online attorney
registration.
Service of Summons
A)
Service of Summons upon a person is governed by CONN. GEN. STAT. § 52-57(a)
(2012). Service on a person includes: (1) personal service; and (2) leaving a copy
of the summons at the defendant’s usual place of abode.
B)
Service of a Summons upon a public corporation is governed by CONN. GEN.
STAT. § 52-57(c) (2012). A public corporation may be served leaving a copy of
the process with its registered agent or any officer agent of the corporation in the
town in which the business is located.
C)
Service of a Summons upon a private corporation is governed by CONN. GEN.
STAT. § 52-57(c) (2012). A private corporation may be served by leaving a copy
of the process with its registered agent or any officer agent of the corporation in
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the town in which the business is located. If no agent or officer can be located, a
private corporation may be served through the Connecticut Secretary of State.
D)
Waiver of Service can occur if a party fails to raise waiver as an issue and
participates in the lawsuit.
E)
CONN. GEN. STAT. § 52-59b (2012) provides the following basis for jurisdiction
over nonresidents: (1) Transacts any business within the state; (2) commits a
tortious act within the state, except as to a cause of action for defamation of
character arising from the act; (3) commits a tortious act outside the state causing
injury to person or property within the state, except as to a cause of action for
defamation of character arising from the act, if such person or agent (A) regularly
does or solicits business, or engages in any other persistent course of conduct, or
derives substantial revenue from goods used or consumed or services rendered, in
the state, or (B) expects or should reasonably expect the act to have consequences
in the state and derives substantial revenue from interstate or international
commerce; (4) owns, uses or possesses any real property situated within the state;
or (5) uses a computer, as defined in subdivision (1) of subsection (a) of Section
53-451, or a computer network, as defined in subdivision (3) of subsection (a) of
said section, located within the state.
Statutes of Limitations
A)
The statute of limitations for a personal injury action is governed by CONN. GEN.
STAT. § 52-584 (2012). Actions for damages for an injury to the person must be
commenced within two (2) years from the date when the injury is first sustained,
discovered or in the exercise of reasonable care should have been discovered, and
except that no such action may be brought more than three years from the date of
the act or omission complained of, except that a counterclaim may be interposed
in any such action any time before the pleadings in such action are finally closed.
B)
A plaintiff’s claim for wrongful death is governed by CONN. GEN. STAT. § 52555(a) (2012). It must be brought within two (2) years from the date of death.
C)
If a plaintiff dies the action can be continued by the representative within six (6)
months of the plaintiff’s death or at any time before trial. CONN. GEN. STAT.
§ 52-599 (2012).
D)
The statute of limitations for a property damage action is two (2) years from the
date when the injury is first sustained, discovered or in the exercise of reasonable
care should have been discovered and except that no such action may be brought
more than three (3) years from the date of the act or omission complained of,
except that a counterclaim may be interposed in any such action any time before
the pleadings in such action are finally closed. The property damage statute of
limitations is governed by CONN. GEN. STAT. § 52-584 (2012).
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E)
The statute of repose for construction actions and for actions based on
improvements to realty is seven (7) years after substantial completion of such
improvement and is governed by CONN. GEN. STAT. § 52-584(a) (2012).
F)
The statute of limitations for a contract action based on an oral contract is three
(3) years and is governed by CONN. GEN. STAT. § 52-581 (2012).
G)
The statute of limitations for a contract action based on a written contract is six
(6) years and is governed by CONN. GEN. STAT. § 52-576 (2012).
H)
There are several statutes with tolling provisions applicable to minors and/or
those under a legal disability. These include CONN. GEN. STAT. § 52-576(b) and
52-579 (2012). In addition, a claim for fraudulent concealment tolls until the time
when the person entitled to sue on the cause of action first discovers its existence
under CONN. GEN. STAT. § 52-595 (2012).
I)
The statute of limitations for medical malpractice actions is governed by CONN.
GEN. STAT. § 52-584 (2012) and is two (2) years from the date of injury occurs or
is discovered or in the exercise of reasonable case should have been discovered,
and except that no such action may be brought more than three (3) years from the
date of the act or omission complained of, except that a counterclaim may be
interposed in any such action any time before the pleadings in such action are
finally closed.
J)
The statute of limitations for legal malpractice actions is governed by CONN. GEN.
STAT. § 52-584(b) (2012) and is two (2) years from the date when the injury is
first sustained or discovered or in the exercise of reasonable care should have
been discovered, and except that no such action may be brought more than three
(3) years from the date of the act or omission complained of, except that a
counterclaim may be interposed in any such action any time before the pleadings
in such action are finally closed.
K)
The statute of limitations for employment claims related to pay is two (2) years
and is governed by CONN. GEN. STAT. § 52-596 (2012) and for any other tort the
statute of limitations is three years from the act or omission complained of as
required under CONN. GEN. STAT. § 52-577 (2012).
L)
The statute of limitations for contribution claims is three (3) years from the date
of the determination of the action against the party that is seeking indemnification
by either judgment or settlement and is governed by CONN. GEN. STAT. § 52598(a) (2012).
M)
The statue of limitations for claims against the State of Connecticut arising out of
or relating to a construction contract with the State of Connecticut acting through
one of its agencies commences with the execution of the contract or the
authorized commencement of work on the contract project, whichever is earlier,
and which ends three years after the acceptance of the work by the agency head of
the department administering the contract evidenced by a certificate of acceptance
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issued to the contractor or three years after the termination of the contract,
whichever is earlier pursuant to CONN. GEN. STAT. § 4-61 (2012). See also Bacon
Constr. Co. v. Dep’t of Pub. Works, 294 Conn. 695 (2010).
Venue Rules
If all parties reside outside the state, venue lies in the judicial district where (1) injury
occurred; (2) transaction occurred; and (3) the property is located or lawfully attached. If
either the plaintiffs or defendants or both, are residents of this state, generally bring to the
judicial district where either party resides. Actions involving land should be brought in
the district where the land is located. Actions by corporations that are domestic
corporations or a U.S. corporation and defendant is a resident suit is brought (1) where
plaintiff has an office or place of business and (2) in the district where the defendant
resides. Actions involving consumer transactions bring suit in district where consumer
resides. See § 51-345(a)-(g) (2012).
NEGLIGENCE
Assumption of the Risk
Pursuant to CONN. GEN. STAT. § 52-572h(l) (2012), the doctrine of assumption of risk
was abolished in negligence actions.
Comparative Fault/Contributory Negligence
Connecticut is a comparative fault state. As such, contributory negligence is not a bar to
recovery. If the plaintiff’s negligence is not greater than the combined negligence of all
the defendants, he or she will not be barred from recovery; rather, the damages will be
diminished in proportion to the percentage of the plaintiff’s negligence. CONN. GEN.
STAT. § 52-572h (2012).
Misuse
Connecticut recognizes a defense of misuse under the common law in product liability
cases. Misuse under the common law occurs when a product is not used in a manner
which should have been foreseen by the defendant. See, e.g., Elliot v. Sears, Roebuck
and Co., 229 Conn. 500, 507 (1994) (quoting Norrie v. Heil Co., 203 Conn. 594, 600
(1987)).
Connecticut also has a statutorily-created defense of misuse available to product sellers
when their product was altered or modified by third party. See CONN. GEN. STAT. § 52572p (2012). That statutory section provides, in pertinent part, as follows: “(a) A
product seller shall not be liable for harm that would not have occurred but for the fact
that his product was altered or modified by a third party unless: (1) the alteration or
modification was in accordance with the instructions or specifications of the product
seller; (2) the alteration or modification was made with the consent of the product seller;
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or (3) the alteration or modification was the result of conduct that reasonably should have
been anticipated by the product seller; (b) for the purpose of this section, alteration or
modification includes changes in the design, formula, function or use of the product from
that originally designed, tested or intended by the product seller.” Id. (emphasis added).
Sole Proximate Cause
In refuting that the defendant’s conduct was the proximate cause of the plaintiff’s
injuries, the defendant in a negligence action may introduce evidence that the conduct of
another, even if not a party in the case, was the sole proximate cause of the injury. See,
e.g., Wagner v. Clark Equip. Co., 243 Conn. 168, 177-84 (1997).
Set off
A legal set-off in Connecticut is governed by CONN. GEN. STAT. § 52-139 (2012), which
provides:
(a) In any action brought for the recovery of a debt, if there are mutual debts between the
plaintiff or plaintiffs, or any of them, and the defendant or defendants, or any of them,
one debt may be set off against the other.
(b) No debt claimed by assignment may be set off unless the plaintiff had notice, at the
commencement of the action that the debt was due the defendant.
(c) If it appears upon the trial that the plaintiff is indebted to the defendant, the court
shall give judgment for the defendant to recover the balance due of the plaintiff with his
costs, except that no judgment may be given against the plaintiff to recover the balance of
a debt due, only a part of the defendant’s.
A “mutual debt,” for purposes of Sec. 52-139, has been defined as “cross-debts in the
same capacity and right and of the same kind and quality.” Shippee v. Pallotti, Andretta
& Co., Inc., 114 Conn. 560, 564 (1932). A set-off may be based on either law or equity.
Savings Bank of New London v. Santaniello, 130 Conn. 206 (1943). An equitable set-off
exists where the nature of the claim or the situation of the parties is such that justice
cannot be obtained by a separate action. Peter Cassio, Inc. v. Green Acres, Inc., 3 Conn.
Cir. Ct. 424, 428 (App. Div. 1965).
Contribution
There is no common law right of contribution among joint tortfeasors in Connecticut.
There are, however, certain exceptions. One of the exceptions is provided by CONN.
GEN. STAT. § 52-572h (2012). In actions based on negligence, § 52-572h(g) (2012)
provides for a right of contribution but only after a judgment has been rendered. The
right of contribution arises only after (1) the claimant has gone to final judgment, (2) the
claimant has failed to collect from one or more liable defendants after making good faith
efforts to do so, (3) the claimant has moved to open the judgment within one year after it
becomes final for purposes of reallocation, (4) a reallocation is made by the court, and (5)
a defendant is actually required to pay an amount in excess of his share of the original
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judgment. CONN. GEN. STAT. § 52-572(g), (h) (2012) indicate that a right of contribution
does not arise until a party pays more than its proportionate share of a judgment. The
right of action for contribution, which is equitable in origin, arises when, as between
multiple parties jointly bound to pay a sum of money, one party is compelled to pay the
entire sum. That party may then assert a right of contribution against the others for their
proportionate share of the common obligation.
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Employer as a Defendant -- Exclusive Remedy - Workers’ Compensation
Protections
Connecticut’s Workers’ Compensation Act, CONN. GEN. STAT. § 31-275 et seq. (2012),
is the exclusive remedy for an employee’s personal injury claim arising out of and in the
course of employment or account of death resulting from personal injury so sustained.
See CONN. GEN. STAT. § 31-284(a) (2012). Worker’s Compensation exclusivity must be
alleged as a special defense. Sivilla v. Philips Medical Sys. of N. Am., 46 Conn. App.
699, 704 (1997).
Indemnification
Connecticut allows one party to seek indemnification from another where the other is
substantially more negligent. Although there is ordinarily no right of indemnification
between joint tortfeasors, where one is in control of the situation and his negligence alone
is the direct, immediate cause of the injury, and the other defendant is not aware of the
fault, has no reason to anticipate it, and may reasonably rely upon the former not to
commit a wrong, the former may be forced to bear the burden of damages. See, e.g.,
Kyrtatas v. Stop & Shop, Inc., 205 Conn. 694, 697-98 (1988).
Joint and Several Liability
The common law rule of joint and several liability among joint tortfeasors was abolished
by statute. See CONN. GEN. STAT. § 52-572h (2012). Consequently, a defendant is liable
only for the portion of damages for which he is responsible. See, e.g., Collins v. Colonial
Penn. Ins. Co., 257 Conn. 718, 730 (2001). CONN. GEN. STAT. § 52-572h, however,
proceeds on the premise that the defendants, between or among any of whom liability is
apportioned, are at least potentially liable in differing proportions. Gazo v. City of
Stamford, 255 Conn. 245, 258 (2001).
Negligence Per Se
Connecticut recognizes the doctrine of negligence per se. “Negligence per se operates to
engraft a particular legislative standard onto the general standard of care imposed by
traditional tort law principles, i.e., that standard of care to which an ordinarily prudent
person would conform his conduct. To establish negligence, the jury in a negligence per
se case need not decide whether the defendant acted as an ordinarily prudent person
would have acted under the circumstances. They merely decide whether the relevant
statute or regulation has been violated. If it has, the defendant was negligent as a matter
of law.” Gore v. People’s Savings Bank, 235 Conn. 360, 376 (1995) (internal quotation
marks omitted).
Strict Liability
A product liability action may be brought under a strict liability theory. See, e.g., Gerrity
v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 126 (2003). This theory of recovery is
available only where the condition of the product makes it unreasonably dangerous to the
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user or consumer. The article sold must be dangerous to an extent beyond that which
would be contemplated by the ordinary consumer who purchases it, with the ordinary
knowledge common to the community as to its characteristics. See, e.g., Vitanza v.
Upjohn Co., 257 Conn. 365, 374 (2001).
A)
Standard: A product liability action may be brought under a strict liability
theory. Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120, 126 (2003). This
theory of recovery is available only where the condition of the product makes it
unreasonably dangerous to the user or consumer. The article sold must be
dangerous to an extent beyond that which would be contemplated by the ordinary
consumer who purchases it, with the ordinary knowledge common to the
community as to its characteristics. Vitanza v. Upjohn Co., 257 Conn. 365, 374
(2001).
B)
Learned Intermediary Doctrine: The learned intermediary doctrine provides
that adequate warnings to prescribing physicians obviate the need for
manufacturers of prescription products to warn ultimate consumers directly. The
doctrine is based on the principle that prescribing physicians act as “learned
intermediaries” between a manufacturer and consumer and, therefore, stand in the
best position to evaluate a patient’s needs and assess the risks and benefits of a
particular course of treatment. The Connecticut Supreme Court has adopted the
doctrine into Connecticut common law. Vitanza v. Upjohn Co., 257 Conn. 365
(2001).
Willful and Wanton Conduct
Additional factual allegations must be pleaded to distinguish an action in negligence from
an action for willful and wanton conduct. If a plaintiff merely reiterates facts from a
negligence count and inserts the word “reckless,” the count can be stricken. If, however,
the factual allegations in a negligence count are detailed and specific enough to support a
claim of recklessness, a motion to strike may be denied. To state a claim of recklessness
the plaintiff must allege facts demonstrating both egregious conduct and the requisite
state of mind. See, e.g., Webster v. Bell, 2006 Conn. Super. Lexis 2888, *7-8 (2006).
TYPES OF ACTIONS
Breach of Contract
The elements of a breach of contract are: (1) the formation of an agreement; (2)
performance by one party; (3) a breach by the other party; and (4) damages suffered or
incurred as a direct result of that breach. FCM Group, Inc. v. Miller, 300 Conn. 774
(Conn. 2011). The award for the breach should place the injured party in the same
position as he or she would have been had the breach not occurred. Hess v. Burke
Constr., Inc., 290 Conn. 1 (2009).
(a) Written Contract
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An action based on a written contract must be brought within six years of
when such breach occurred. CONN. GEN. STAT. § 52-576 (2012).
(b) Oral Contract
An oral contract will be enforced if it is for a term of one year or less and
would not be subject to Connecticut’s Statute of Frauds. CONN. GEN. STAT. § 52550 (2012). An oral agreement “shall be brought but within three years after the
right of action accrues.” CONN. GEN. STAT. § 52-581 (2012).
Class Action
Class certification will be granted by the Court only if the following standard is met: the
representative parties will fairly and adequately protect the interests of the class. Practice
Book § 9-7(4); Practice Book § 9-8; FED. R. CIV. P. 23(a)(4) (2012). Additional factors
considered for certification are: (1) the nonexistence of conflict; and (2) assurance of
vigorous prosecution by competent counsel. Collins v. Anthem Health Plans, Inc., 275
Conn. 309 (Conn. 2005).
Dram Shop Liability
Connecticut’s Dram Shop Act is covered under CONN. GEN. STAT. § 30-102 et seq.
(2012). The provisions under this Act are strictly construed and are mandatorily rather
than discretionally applied. The statute requires a notice condition precedent: the
aggrieved party must provide “written notice to such seller (of alcoholic liquor) within
sixty days of the occurrence of such injury to persons or property of . . . intention to bring
an action under this section. [Further] such notice shall specify the time, date and person
to whom such sale was made, the name and address of the person injured or whose
property was damaged and the time, date and place where the injury to person or property
occurred.” However, the statute does not provide a course of action premised on
negligence against a seller if the sale of alcohol was to “a person twenty-one years of age
or older.”
Economic Loss Doctrine
The economic loss doctrine is a judicially created doctrine which prohibits recovery in
tort if the basis for the tort claim arises out of a contractual violation and damages are
solely limited to economic losses, as opposed to property damage or personal injury.
Heibeck v. Chrysler, LLC, 46 Conn. L. Rpt. 451, 2008 Conn. Super. LEXIS 2429 (Conn.
Sup. Ct. Sept. 24, 2008). Although some lower courts in Connecticut have addressed this
doctrine and are split on its applicability, no appellate authority has determined whether
the economic loss doctrine is recognized in the State of Connecticut. For example, the
Connecticut Supreme Court has ruled that “commercial losses arising out of the defective
performance of contracts for sale of goods cannot be combined with negligent
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misrepresentation . . . .” Flagg Energy Dev. Corp. v. Gen. Motors Corp., 244 Conn. 126,
153-154 (1998).
Emotional Distress
(a) Intentional Infliction of Emotional Distress
A claim of intentional infliction of emotional distress must establish the following
elements: (1) the defendant intended to inflict emotional distress or should have
known that such was likely to result; (2) the defendant’s conduct was extreme and
outrageous; (3) the plaintiff’s emotion distress was a direct result of the defendant’s
conduct; and (4) the emotion distress was severe. Carrol v. Allstate Ins. Co., 262
Conn. 433, 442-43 (2003).
(b) Negligent Infliction of Emotional Distress
To prevail on a claim of negligent infliction of emotional distress, “the plaintiff
must prove that the defendant shall have realized that its conduct involved an
unreasonable risk of causing emotional distress and that the distress, if it were caused,
might result in illness or bodily harm” Scanlon v. Conn. Light & Power Co., 258
Conn. 436, 446 (2001).
(c) Bystander Emotional Distress
The emotional anguish experienced by a person who witnessed a parent, child or
sibling being seriously injured as a result of an accident caused by another is
compensable under Connecticut law. Clohessy v. Bachelor, 237 Conn. 31 (1996).
However, Connecticut does not recognize a cause of action for loss of parental
consortium brought by a minor child. Mendilo v. Bd. of Educ., 246 Conn. 456 (Conn.
1998).
In order to recover from bystander emotion distress, these four elements must be
established: (1) the bystander must be closely related to the victim; (2) the
bystander’s emotional injury must be caused by “contemporaneous sensory
perception of the event”; (3) the injury suffered by the victim must be
“substantial” – death or serious personal injury; and (4) the bystander must have
suffered serious emotional injury. Clohessy v. Bachelor, 237 Conn. 31 (1996).
Tortious Indemnification
This action generally arises between two tortfeasors: one tortfeasor’s passive negligence
results in a monetary recovery by a plaintiff as the other tortfeasor’s active negligence
renders him liable for reimbursement to the passive tortfeasor. Smith v. New Haven, 258
Conn. 56 (2001). In order to assert an actionable claim for tortious indemnification, the
passive tortfeasor must prove that the other tortfeasor’s “active negligence, rather than
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the first tortfeasor’s own passive negligence, was the direct, immediate cause of the harm
in question.” ATP P’ship v. Coats N. Am. Consol., Inc., 284 Conn. 537 (Conn. 2007).
Injunctive Relief and Temporary/Preliminary Injunction
The requirements for filing an injunction are covered under CONN. GEN. STAT. § 52-471
et seq. (2012). Under Connecticut law, in order to prevail on an application for a
preliminary injunction, four elements must be established: (1) plaintiff must not have had
any adequate remedy at law; (2) plaintiff will suffer irreparable harm if an injunction is
not granted; (3) plaintiff will likely prevail on the merits; and (4) a balancing of equities
favors the plaintiff. Waterbury Teachers Ass’n. v. Freedom of Info. Comm’n., 230 Conn.
441, 446 (1994). The purpose of a temporary injunction is to preserve the status quo until
a court has the opportunity to grant full relief at a subsequent hearing to determine
whether a permanent injunction is warranted. City of Stamford v. Kovac, 228 Conn. 95,
101 (1993); Clinton v. Middlesex Mut. Assurance Co., 37 Conn. App. 269 (1995).
Intervening Complaints
An employer may file an intervening complainant to secure its statutory rights of
reimbursement of worker’s compensation benefits paid to an injured employee. CONN.
GEN. STAT. § 31-293 (2012). However, the employer’s negligence cannot bar or limit the
employer’s recovery. Archambault v. Soneco/Ne., Inc., 287 Conn. 20 (2008).
Loss of Consortium
Connecticut recognizes a common law claim for loss of spousal consortium. Hopson v.
St. Mary’s Hosp., 176 Conn. 485, 487 (1979). Under Connecticut law, a loss for
consortium is defined as “encompassing the services of the injured spouse, the financial
support of the injured spouse, and the variety of intangible relations which exist between
spouses living together in marriage”. Jacoby v. Brinkeroff, 250 Conn. 86, 90 (1999);
PROSSER TORTS § 124 (4th ed. 1971). Although an action for loss of consortium is an
independent cause of action, it is nonetheless derivative of the spouse’s cause of action”.
Hopson, 176 Conn. at 494. A loss of consortium is barred if the spouse does not have a
cognizable tort claim. Voris v. Molinaro, 302 Conn. 791 (Conn. 2011).
Premises Liability
Premises liability claims arising out of personal injuries to individuals are governed by
the negligence statutes of limitation under CONN. GEN. STAT. § 52-584 (2012): the action
shall be brought within two years from the date the injury is first sustained or discovered
or in the exercise of reasonable care should have been discovered, excepting no such
action may be brought more than three years from the date of the act or omission
complained of.
Connecticut generally recognizes various categories of invitees: (1) public invitee – one
invited to enter or remain on the premises as a member of the public for public purposes;
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(2) business/social invitee – one who is invited onto a property for the direct or indirect
purpose of a business or social dealing with the possessor of the land. Sevigny v. Dibble
Hollow Condo Ass’n. Under CONN. GEN. STAT. § 52-557a (2012), “the standard of care
owed to a social invitee shall be the same as the standard of care owed to a business
invitee”. The possessor of land owes an invitee the duty to inspect the premises and
install safeguards to render the premises “reasonably safe”. Warren v. Stancliff, 157
Conn. 216, 218 (1968). A property owner will be held liable for defects which should
have been discovered through reasonable inspection, that is, it will be imputed with
constructive notice. Sokolowski v. Medi-Mart, Inc., 24 Conn. App. 276 (1991).
Replevin
In Connecticut, a replevin action is governed by statute rather than by common law.
Cornelio v. Stamford Hosp., 246 Conn. 45 (1998). CONN. GEN. STAT. § 52-515 (2012)
states: “The action of replevin may be maintained to recover any goods or chattels in
which the plaintiff has a general or special property interest with a right to immediate
possession and which are wrongfully detained from him in any manner, together with
damages for wrongful detention.” The statute of limitation for a replevin claim is
governed by the three-year statute of limitation for tort claims. See CONN. GEN. STAT.
§ 52-577 (2012); Nickerson v. Martin, 34 Conn. Supp. 22 (Conn. Super. Ct. 1976).
Requirements for Maintaining an Action for Professional Malpractice
[See Professional Liability Section, Subsection C]
14
Spoliation
In order for the tort of intentional spoliation of evidence to be actionable, the following
elements must exist: (1) defendant’s knowledge of a pending or inchoate civil action
pertaining to the plaintiff; (2) the claim that the defendant destroyed the evidence; (3)
such action was carried out in bad faith with the intent to deprive the plaintiff of his cause
of action; (4) plaintiff’s inability to establish a prima facie case with that spoliated
evidence; and (5) damages suffered by plaintiff as a result. Rizzuto v. Davidson Ladders,
Inc., 280 Conn. 225, 244 (2006).
The tort of intentional spoliation is governed by the three-year statute of limitations under
CONN. GEN. STAT. § 52-577 (2012). However, there is no Supreme Court or Appellate
Court authority in the State of Connecticut to support a cause of action for “negligent
spoliation”. See Lage v. Stop & Shop Supermarket Co. LLC, 2011 Conn. Super. LEXIS
2907 (Conn. Super. Ct. Nov. 6, 2011).
Wrongful Death and Survival Actions
Connecticut’s Wrongful Death Statute is governed by CONN. GEN. STAT. § 52-555
(2012). A wrongful death claim shall be brought within two years from the date of death,
“but no more than five years from the date of the act or omission complained of.” This
statutory right belongs to the decedent alone and damages are recoverable “for the death
as for one of the consequences of the wrong inflicted upon the decedent.” Foran v.
Carangelo, 153 Conn. 356, 360 (Conn. 1966).
Connecticut’s “Survival Statute” is codified in CONN. GEN. STAT. § 52-599 (2012), which
essentially prevents a cause of action from being lost by the death of the possessor.
Foran, 153 Conn. at 360. Under the Survival Statute, a cause of action “shall survive in
favor of or against the executor or administrator of the deceased person.” CONN. GEN.
STAT. § 52-599(a) (2012).
15
DISCOVERY
Electronic Discovery Rules
Connecticut adopted new electronic discovery rules effective January 2, 2012. The rules
regarding the production of electronically stored information are found in Connecticut
Practice Book § 13-9(d), which provides that if there exists electronically stored
information and a request for production does not specify a form for producing the type
of electronically stored information, the responding party may produce the information in
a form in which it is ordinarily maintained or in a form that is reasonably usable.
Electronically stored information means “information that is stored in an electronic
medium and is retrievable in perceivable form.” Practice Book § 13-1(5). Under
Practice Book § 13-5(9), a party may move for a protective order to determine the terms
and conditions of electronic discovery and the allocation of costs between the parties.
Practice Book § 13-14(d) provides safe harbor for the loss of information resulting from
routine, good faith operations of systems or processes “in the absence of a showing of
intentional actions designed to avoid known preservation obligations.” Also, Practice
Book § 13-33 “provides a procedure for a party to assert a claim of privilege or trialpreparation material protection after information is produced in discovery, and, if the
claim is contested, permits any party that received that information to present the matter
to the court for resolution.”
Expert Witnesses
A)
Expert disclosures are governed by Practice Book § 13-4. A party “shall disclose
each person who may be called by that party to testify as an expert witness at trial,
and all documents that may be offered in evidence in lieu of such expert
testimony.” Practice Book § 13-4(a). While a formal report is not required, the
disclosure must include the name, address, employer, field of expertise, subject
matter about which the expert will is expected to testify, and the substance of the
grounds for each opinion. Practice Book § 13-4(b)(1). Unless the judge orders or
the parties agree otherwise, the party disclosing the expert witness must, upon the
request of the opposing party, produce to all other parties all materials obtained,
created, and/or relied upon by the expert in connection with his/her opinions
within 14 days before the expert’s deposition. Practice Book § 13-4(b)(3). Each
party must be afforded an opportunity to depose the expert. Practice Book § 134(c)(1). Unless otherwise ordered by the judge for good cause, or agreed on by
the parties, the expert’s fees and expenses for the deposition, excluding
preparation time, must be paid by the party taking the deposition. Practice Book
§ 13-4(c)(2). Sanctions for failing to make the required disclosures include
preclusion of the expert’s testimony. Practice Book § 13-4(h).
B)
Unless otherwise ordered or agreed to by the parties, the parties must submit
within 120 days from the return date a proposed Schedule for Expert Discovery.
Practice Book § 13-4(g)(1).
16
C)
A party is under no obligation to disclose expert witnesses whom it does not
intend to call at trial, unless the other party can make a “showing of exceptional
circumstances under which it is impracticable for the party seeking discovery to
obtain facts or opinions on the same subject by other means.” Practice Book
§ 13-4(f). Consequently, a party is generally free to consult with experts for the
purpose of garnering an opinion without having to disclose the expert, so long as
it does not intend to call the expert at trial.
Non Party Discovery
A)
A non-party may be subpoenaed in Connecticut pursuant to Practice Book § 1328. See also CONN. GEN. STAT. § 52-143 (2012). A witness may be subpoenaed
by a judge, clerk, notary public, attorney, or any other commissioner of the
superior court. Further, a subpoenaed witness may be asked to not only appear,
but also, to produce and permit the inspection of books, papers, documents or
tangible things relevant to the scope of the examination.
B)
A subpoena requesting the production of documents must be issued fifteen days
before the witness is compelled to make such productions. Connecticut Practice
Book § 13-28(c). Similarly, the witness has fifteen days from issuance of the
subpoena to object in writing to the inspection or copying of the designated
materials.
Privileges
A)
The attorney client privilege, which is a legal concept that protects
communications between a client and his or her attorney and keeps those
communications confidential, is recognized in Connecticut. See, e.g., Hutchinson
v. Farm Family Cas. Ins. Co., 273 Conn. 33, 39 (2005). This privilege
encourages open and honest communication between clients and attorneys.
B)
As defined by the Connecticut Practice Book § 13-1, a statement is “(A) a written
statement in the handwriting of the person making it, or signed, initialed, or
otherwise in writing adopted or approved by the person making it; or (B) a
stenographic, mechanical, electrical or other recording or a transcription thereof,
which is a substantially verbatim recital of an oral statement by the person making
it and which is contemporaneously recorded.” Statements are discoverable,
unless they are privileged (such as the attorney-client privilege).
C)
The work-product doctrine, as recognized in Connecticut, protects materials
prepared in anticipation of litigation from discovery by opposing counsel.
Practice Book § 13-3(a) allows a party to obtain discovery of documents and
tangible things prepared in anticipation of litigation only upon a showing that the
party seeking discovery has substantial need of the materials in the preparation of
the case and is unable without undue hardship to obtain the substantial equivalent
17
of the materials by other means. This doctrine does not generally protect
communications with testifying experts. Practice Book § 13-4(b)(3).
D)
There is no authority recognizing the self critical analysis privilege in
Connecticut. Indeed, only two Connecticut Superior Courts have addressed the
privilege. One court held that Connecticut law does not recognize the qualified
privilege against discovery of “self-critical” analysis under the facts of the case.
Office of Consumer Counsel v. Dep’t of Pub. Util. Control, 44 Conn. Supp. 21
(1994). The other court did not accept the existence of a self-critical analysis
privilege in the circumstances of the case. Caccavale v. Ne. Utils., 1994 Conn.
Super. LEXIS 1956 (1994).
E)
Evidentiary privileges in Connecticut are governed by the Connecticut Code of
Evidence § 5-1, which dictates that Connecticut recognizes both privileges
created by statute and common law. There are numerous privileges created by
statute. A few examples of statutorily created privileges in Connecticut include
communications made to a clergyman in his professional capacity (CONN. GEN.
STAT. § 52-146b (2012)), those between a psychologist and patient (CONN. GEN.
STAT. § 52-146c (2012)), and communications made to a social worker in his
professional capacity (CONN. GEN. STAT. § 52-146q (2012)). For additional
statutorily created privileges, please speak with Connecticut counsel.
Requests to Admit
A)
Practice Book § 13-22 through § 13-25 govern requests for the admission of facts
for purposes of the pending action only. Under the rules, a party may serve
written requests for the admission of the truth of any matters relevant to the
subject matter of the pending action as they relate to statements or opinions of fact
or of the application of law to fact, including the existence, due execution and
genuineness of any documents described in the request.
B)
Each matter of which an admission is requested is admitted unless, within 30 days
after the filing of the notice, the party to whom the request is directed files and
serves upon the party requesting the admission a written answer or objection.
Documents sought to be admitted by the request shall be filed with the response
by the responding party only if they are the subject of an answer or objection. If
objection is made, the reasons therefore shall be stated. The answer shall
specifically deny the matter or set forth in detail the reasons why the answering
party cannot truthfully admit or deny the matter. A denial shall fairly meet the
substance of the requested admission, and when good faith requires that a party
qualify his or her answer or deny only a part of the matter of which an admission
is requested, such party shall specify so much of it as is true and qualify or deny
the remainder. An answering party may not give lack of information or
knowledge as a reason for failure to admit or deny unless such party states that he
or she has made reasonable inquiry and that the information known or readily
obtainable by him or her is insufficient to enable an admission or denial. A party
who considers that a matter of which an admission has been requested presents a
18
genuine issue for trial may not, on that ground alone, object to the request; the
party may deny the matter or set forth reasons why he or she cannot admit or deny
it. Practice Book § 13-23(a).
C)
The party who has requested the admission may move to determine the
sufficiency of the answer or objection. Practice Book § 13-23(b).
D)
Any matter admitted under this section is conclusively established unless the
judicial authority on motion permits withdrawal or amendment of the admission.
Any admission made by a party under this section is for the purpose of the
pending action only and is not an admission by him or her for any other purpose
nor may it be used against him or her in any other proceeding. Practice Book
§ 13-24(a).
E)
The admission of any matter under this section shall not be deemed to waive any
objections to its competency or relevancy. An admission of the existence and due
execution of a document, unless otherwise expressed, shall be deemed to include
an admission of its delivery, and that it has not since been altered. Practice Book
§ 13-24(b).
F)
If a party fails to admit the genuineness of any document or the truth of any
matter as requested herein, and if the party requesting the admissions thereafter
proves the genuineness of the document or the truth of the matter, such party may
apply to the court for an order requiring the other party to pay the reasonable
expenses incurred in making that proof, including reasonable attorney’s fees. The
judicial authority shall make the order unless it finds that such failure to admit
was reasonable. Practice Book § 13-25.
19
EVIDENCE AND PROOFS
Accident Reconstruction
The Connecticut Supreme Court adopted the standard established in Daubert v. Merrell
Dow Pharm., Inc., 509 U.S. 579 (1993), for determining the admissibility of scientific
evidence. State v. Porter, 241 Conn. 57, 68 (1997). Under that standard, the first
question goes to reliability: Is the evidence scientifically valid? The second question
goes to relevance: Can the reasoning be applied to the facts of the present case? Other
things considered include: (1) whether the methodology can be and has been tested; (2)
whether it has been subject to peer review and publication; and (3) the known or potential
rate of error. See COLIN C. TAIT & ELIOT D. PRESCOTT, TAIT’S HANDBOOK OF
CONNECTICUT EVIDENCE § 7.7.1. (4th ed. 2008).
Connecticut courts permit expert testimony on accident reconstruction. Lutkus v. Kelly,
170 Conn. 252, 256-57 (1976); Floyd v. Fruit Indus., Inc., 144 Conn. 659, 664-65 (1957).
For example, an expert may testify as to the speed of a motor vehicle based on skid marks
and other physical factors. Thomas v. Commerford, 168 Conn. 64, 69 (1975).
Biochemical Testimony
A witness qualified as an expert by knowledge, skill, experience, training, education or
otherwise may testify in the form of an opinion or otherwise concerning scientific,
technical or other specialized knowledge, if the testimony will assist the trier of fact in
understanding the evidence or in determining a fact in issue. See CONN. CODE EVID. § 72. Biochemical testimony and evidence is admissible in Connecticut. See, e.g., State v.
Corrigan, 40 Conn. App. 359, 364 (Conn. App. Ct. 1996).
Collateral Source Rule
The collateral source rule provides that a defendant is not entitled to be relived from
paying any part of the compensation due for injuries proximately resulting from his act
where payment for such injuries or damages comes from a collateral source, wholly
independent of him. The basis of this rule is that a wrongdoer shall not benefit from a
windfall from an outside source. That rule is applicable in any tort case. See Env’t
Express, Inc. v. AIU Ins. Co., 279 Conn. 194, 203 n.9 (2006). Connecticut has codified
the collateral source rule at CONN. GEN. STAT. § 52-225a (2012).
Convictions
For the purpose of impeaching the credibility of a witness, evidence that a witness has
been convicted of a crime is admissible of the crime was punishable by imprisonment for
more than one year. CONN. CODE EVID. § 6-7(a). In determining whether to admit such
evidence, the court shall consider: (1) extent of prejudice likely to arise; (2) the
significance of the particular crime in indicating untruthfulness; and (3) the remoteness in
time of the conviction. Id. Evidence that a witness has been convicted of a crime may be
introduced by examination of the witness or by introduction of a certified copy of the
20
record of conviction. CONN. CODE EVID. § 6-7(b); see COLIN C. TAIT & ELIOT D.
PRESCOTT, TAIT’S HANDBOOK OF CONNECTICUT EVIDENCE § 6.33.1 (4th ed. 2008).
Dead Man’s Statute
Connecticut’s so-called “dead man’s statute” is codified at CONN. GEN. STAT. § 52-172
(2012) and applies to actions by or against representatives or beneficiaries of deceased
persons. The dead man’s statute is a long recognized exception to the hearsay rule.
Dinan v. Marchand, 279 Conn. 558, 573 (Conn. 2006).
Medical Bills
Connecticut courts have upheld the admission of medical bills, even though the doctor
has not appeared and testified, where the plaintiffs testify that the bills have been incurred
as a result of the injuries received. Rhode v. Milla, 287 Conn. 731, 745 (2008). As a
condition precedent, there must be some corroborating evidence connecting a bill to the
injury. See COLIN C. TAIT & ELIOT D. PRESCOTT, TAIT’S HANDBOOK OF CONNECTICUT
EVIDENCE § 1.29.4 (4th ed. 2008).
Offers of Proof
This is an acceptable procedure to preserve the record for appeal when evidence is
excluded. Doyle v. Kamm, 133 Conn. App. 25, 36 n.7 (2012). The Connecticut Supreme
Court has recognized the propriety and usefulness of a more or less formal offer of proof
as an aid to the judge. See COLIN C. TAIT & ELIOT D. PRESCOTT, TAIT’S HANDBOOK OF
CONNECTICUT EVIDENCE § 1.29.4 (4th ed. 2008).
Relationship to the Federal Rules of Evidence
The Connecticut Rules of Evidence are largely similar to the Federal Rules of Evidence,
but there are many differences which need to be taken into account. State v. Aaron L.,
272 Conn. 798, 824-25 (2005) (acknowledging that there may be substantive differences
between the Connecticut and federal rules of evidence, but there was no such difference
with respect to the pertinent evidentiary issue in this particular matter).
Spoliation
In civil cases, the intentional destruction of evidence allows a trier to draw an inference
that destroyed evidence would have been unfavorable to the party that destroyed it.
Metro. Prop. & Cas. Ins. Co. v. Deere & Co., 302 Conn. 123, 132 n.3 (2011). In criminal
cases, if the police have lost or destroyed evidence it is a denial of due process. See
COLIN C. TAIT & ELIOT D. PRESCOTT, TAIT’S HANDBOOK OF CONNECTICUT EVIDENCE
§ 8.16.12(f) (4th ed. 2008).
Subsequent Remedial Measures
21
Evidence of measures taken after an event is inadmissible to prove negligence or culpable
conduct in connection with an event. CONN. CODE EVID. § 4-7; Duncan v. Mill Mgmt.
Co. of Greenwich, 124 Conn. App. 415, 421 (2010). It is admissible to show ownership,
control or feasibility of a precautionary measure if those are in issue. See COLIN C. TAIT
& ELIOT D. PRESCOTT, TAIT’S HANDBOOK OF CONNECTICUT EVIDENCE § 4.24 (4th ed.
2008).
22
RESOLUTION ISSUES
A)
Enforcing Settlement Agreements
In Connecticut, a settlement agreement, including an oral agreement reached on
the eve of trial will be enforced if sufficiently clear and unambiguous. Trial courts have
declared repeatedly that valid settlement agreements need not be in writing and oral
settlement agreements are enforceable. See Rena Sobol Ackerman, et al. v. Sobol Family
P’ship, 298 Conn. 495 (2010). The Superior Court will conduct a hearing pursuant to
Audubon Parking Associated Ltd. P’ship v. Barclay & Stubbs, Inc., 225 Conn. 804, 81112 626 A.2d 729 (1993) to decide the issue of enforcement of a settlement agreement.
One issue is whether the attorney had apparent authority to bind the client. The case of
Tomlinson v. Bd. of Educ., 226 Conn. 704, 734, 629 A.2d 333 (1993) established a two
part analysis regarding apparent authority – (1) has the principal held out the agent as
possessing sufficient authority to embrace the act in question and knowingly permitted
the agent to act as having such authority and (2) did the other party reasonably, in good
faith, believe the agent had the necessary authority. As to attorneys as agents, the
Connecticut Supreme Court recognizes 1 RESTATEMENT (THIRD) THE LAW GOVERNING
LAWYERS and 1 RESTATEMENT (THIRD) AGENCY as authoritative support for its holdings
concerning settlement authority.
B)
C)
Mandatory ADR
i.
Arbitration. A party may enforce a written agreement to arbitrate under
Connecticut General Statutes Section 52-410 by filing an action in
Superior Court. The matter is fast tracked with a shortened pleading
schedule and immediate assignment for hearing. Connecticut courts favor
enforcement of arbitration agreements.
ii.
Without a written agreement to arbitrate a dispute, a Superior Court judge
may by statute, 52-549u, order cases with a reasonable expectation of a
judgment of less than $50,000 to arbitration with an absolute right to trial
de novo under Sect. 52-549z if a demand for trial is filed within 20 days of
the arbitrator’s decision. The arbitrator’s decision is not admissible in a
subsequent proceeding. The court in which the award is filed, upon proof
the arbitrator acted arbitrarily or capriciously or that the award was
procured by corruption or undue means, may order a trial de novo.
Mediation
A Connecticut Superior Court has authority to enter a stay in a litigation
matter under 52-409 until an arbitration has been had in compliance with
an agreement to arbitrate provided the person applying for the stay is
ready and willing to proceed with arbitration. A similar authority based
on equitable powers applies to an order for stay and an order for parties to
mediate where the parties contractually agreed to mediation. See Turn of
23
River Fire Dep’t, Inc. v. Stamford, Superior Court, 2008 Conn. Super.
Lexis 1152 (May 2, 2008, Tierney J.); LeClair v. Scholastic Mortgage,
LLC, 2010 Conn. Super. Lexis 32 (Jan. 13, 2010) (Rodriguez, J.).
D)
Offers of Judgment/Offer of Compromise
Connecticut Statute Section 52-192a, effective October 1, 2011, provides that
plaintiff may serve an Offer of Compromise upon a defendant. The former language,
Offer of Judgment, is no longer used in Connecticut state court but may be used in
federal court litigation.
The defendant, (except a health care provider) has thirty days within which to
accept the offer and the plaintiff shall then withdraw the action if the offer is accepted. If
the offer is not accepted, it is considered rejected. After trial, if the plaintiff recovers an
amount equal to or greater than the offer of compromise, the court shall add to the entire
amount recovered 8% annual interest from the date of the complaint or from the offer in
compromise if the offer is filed late. An offer may be filed up to thirty days before trial.
Interest is calculated as provided by the statute either from the date of the complaint or
from the date of the offer.
An offer of compromise may be filed regarding a counterclaim; the interest award
is on the difference between the amount recovered and the amount of the offer.
Under Sec. 52-192(b) a special procedure applies to actions for damages for
personal injury or wrongful death whether in tort or in contract on a claim of negligence
of a health care provider. In this section, the plaintiff must wait 365 days after service of
process to file the offer and the defendant has sixty days to accept the award. The
provision provides the defendant with time to engage in discovery to determine the
plaintiff’s injury and damages. Interest is added to the amount recovered if the verdict is
equal to or greater than the offer.
E)
Releases and Settlement Agreements
For discussion of authority of an agent or attorney for settlement agreements, see
Resolution Issues, Sec. A. A release or settlement agreement is a contract subject to the
rules governing the construction of contracts. The intention of the parties controls the
scope and effect of the release as determined from the language used and the
circumstances of the transaction. Muldoon v. Homestead Insulation Co., 231 Conn. 469,
482 650 A.2d 1240 (1994). Connecticut courts will enforce settlement agreements
relating to resolution of claims relating to conduct prior to the settlement.
24
DAMAGES
Caps on Damages
In law, damages refer to the money paid or awarded to a plaintiff following a successful
claim in a civil action. In Connecticut, there is no statutory or common law cap on
damages. Thorsen v. Durkin Dev., LLC, 129 Conn. App. 68, 74 (2011) (quoting Mahon
v. B.V. Unitron Mfg., Inc., 284 Conn. 645, 661-62, 935 A.2d 1004 (2007)) (“[T]he
amount of an award [of damages] is a matter peculiarly within the province of the trier of
facts . . . the ultimate test which must be applied to the verdict by the trial court is
whether the jury’s award falls somewhere within the necessarily uncertain limits of just
damages or whether the size of the verdict so shocks the sense of justice as to compel the
conclusion that the jury [was] influenced by partiality, prejudice, mistake or
corruption.”). However, pursuant to CONN. GEN. STAT. § 52-225a (2012), the economic
loss portion of a jury damage award can be reduced by the amount of collateral source
payments received by the injured plaintiff less amounts paid to secure the collateral
benefits.1 Cruz v. Montanez, 294 Conn. 357, 369-70 (2009) (citing CONN. GEN. STAT.
§ 52-225a en route to affirming that the legislature can limit the apportionment of
damages).
Calculation of Damages
There is no specific formula to calculate damages in Connecticut and it varies depending
on the type of case. Am. Diamond Exch., Inc. v. Alpert, 302 Conn. 494, 510-11 (2011)
(internal citation omitted) (stating that “mathematical exactitude is [not] a precondition to
an award of damages but . . . evidence, with such certainty as the nature of the particular
case may permit, lay a foundation [that] will enable the trier to make a fair and
reasonable estimate”). In a personal injury claim, compensatory damages may include,
inter alia, all economic losses caused by the injury, including past and probable future
medical expenses, loss of the earnings that would have been earned “but for” the injury,
and, if the injury resulted in a disability and the disability is permanent, the loss of future
earnings through retirement. In addition to economic loss, an award may also include
non-economic losses, such as pain and suffering, emotional anguish, and loss of
enjoyment of life. Punitive damages and attorney’s fees may also be calculated under
certain circumstances.
Available Items of Personal Injury Damages
Among other things, a plaintiff may be entitled to recover damages in a personal injury
action for the following items: (1) Past and Future Medical Bills; (2) Disfigurement /
Scarring; (3) Disability; (4) Loss of Enjoyment of Life; (5) Pain and Suffering; (6) Lost
Income, Wages and Earnings. Hamernick v. Bach, 64 Conn. App. 160, 163 n.3 (2001).
1
Economic damages means compensation for pecuniary losses including, but not limited to, the cost of
reasonable and necessary medical care, rehabilitative services, custodial care and loss of earnings or
earning capacity. CONN. GEN. STAT. § 52-572h (2012).
25
Lost Opportunity Doctrine
Damages for loss opportunity are available in Connecticut but the circumstances in which
such damages are available greatly vary and have included, inter alia, lost business
opportunity, lost opportunity from the sell or purchase of real estate, and lost opportunity
for further compensation. Savvidis v. City of Norwalk, 129 Conn. App. 406, 413 (2011).
Mitigation
A plaintiff who has been injured by the negligence of another must act in good faith and
use reasonable care to minimize the resulting losses and damages and to prevent any
aggravation or increase of the injuries. See, e.g., Burns v. Hanson, 249 Conn. 809, 831
(Conn. 1999). A failure of a plaintiff to mitigate his or her damages results in a reduction
of damages accordingly.
Punitive Damages
A)
Punitive damages are damages not awarded in order to compensate the plaintiff,
but in order to punish, reform or deter the defendant for the conduct that damaged
the plaintiff. Common law punitive damages in Connecticut are limited to the
plaintiff’s attorney’s fees and nontaxable costs, and thus serve a function that is
both compensatory and punitive. Bodner v. United Servs. Auto. Ass’n, 222 Conn.
480, 492 (Conn. 1992). Because they usually compensate the plaintiff in excess
of the plaintiff’s provable injuries, punitive damages are awarded only in special
cases or if allowed pursuant to statute.
B)
With respect to common law claims, for a plaintiff to received an award of rights
of others or an intentional and wanton violation of those rights. Venturi v. Savitt,
Inc., 191 Conn. 588, 593 (Conn. 1983). The basic requirement to justify an award
of punitive damages is described in terms of wanton and malicious injury, evil
motive and violence. Damages may not exceed the amount of the expenses of
litigation in the suit, less taxable costs and it is essential to the award of punitive
damages for the plaintiff to offer evidence of what those damages are.
C)
Similar to a claim for common law punitive damages, most statutes that allow a
claim for statutory punitive damages likewise require some evidence of reckless
or wanton conduct on the part of a tortfeasor to justify an award of damages. See,
e.g., Bridgeport Harbour Place I, LLC v. Ganim, 131 Conn. App. 99, 139-40
(Conn. App. Ct. 2011) (example of a statute of which punitive damages are
awarded for wanton behavior). The specific statutes that allow claims for
punitive damages are too numerous to list. Please speak with your Connecticut
counsel.
D)
Awards of punitive damages for common law claims are normally not insurable.
Awards of punitive damages pursuant to statute may be insurable if the liability
for punitive damages is specifically assigned by statutory fiat rather than as
26
punishment for the tortfeasor’s wrongdoing. See Bodner v. United Servs. Auto.
Ass’n, 222 Conn. 480, 498 (Conn. 1992).
Recovery and Pre and Post Judgment Interest
A)
Prejudgment interest may be awarded if the trier of fact determines that past due
amounts are payable and wrongfully withheld. See Blakeslee Arpaia Chapman,
Inc. v. DOT, 273 Conn. 746, 752 (2005). CONN. GEN. STAT. § 37-3a (2012)
governs the award of prejudgment interest and provides that interest at the rate of
ten percent a year may be recovered and allowed in civil actions, including
actions to recover money loaned at a greater rate, as damages for the detention of
money after it becomes payable.
B)
In a negligence action, a plaintiff’s entitlement to post-judgment interest is
governed by CONN. GEN. STAT. § 37-3b (2012), which allows interest at the rate
of ten percent a year to be recovered “in any action to recover damages for injury
to the person, or to real or personal property, caused by negligence, computed
from the date that is twenty days after the date of judgment or the date that is
ninety days after the date of verdict, whichever is earlier, upon the amount of the
judgment.”
Recovery of Attorney’s Fees
The general rule of law followed in Connecticut, known as the “American rule,” is that
attorney’s fees and ordinary expenses and burdens of litigation are not allowed to the
successful party absent a contractual or statutory exception. See, e.g., Brookfield v.
Candlewood Shores Estates, Inc., 201 Conn. 1, 14, 513 A.2d 1218 (1986); Gino’s Pizza
of E. Hartford, Inc. v. Kaplan, 193 Conn. 135, 140, 475 A.2d 305 (1984); Gionfriddo v.
Avis Rent A Car System, Inc., 192 Conn. 280, 297, 472 A.2d 306 (1984); Litton Indus.
Credit Corp. v. Catanuto, 175 Conn. 69, 75, 394 A.2d 191 (1978); Central New Haven
Dev. Corp. v. Potpourri, Inc., 39 Conn. Supp. 132, 134, 471 A.2d 681 (1983). There are
few exceptions, such as where a specific contractual term provides for the recovery of
attorney’s fees and costs or where a statute controls. See, e.g., CONN. GEN. STAT. § 52240a (2012) (attorney’s fees may be awarded in products liability action). Also, an
indemnitee is entitled to recover from an indemnitor, as part of its damages, attorney’s
fees, costs and expenses. 24 Leggett St. Ltd. P’ship. v. Beacon Indus., 239 Conn. 284,
311 (1996). An additional exception, as outlined above, is when the successful party is
awarded punitive damages, which in Connecticut, includes an award of attorney’s fees.
Settlement Involving Minors
Under Connecticut law, a parent can settle a post-injury claim by a minor without Probate
Court approval if the amount of the settlement is less than ten thousand dollars. See
CONN. GEN. STAT. § 45a-631(b) (2012) (“A release given by both parents or by the parent
who has legal custody of a minor or by the guardian or spouse shall, if the amount does
not exceed ten thousand dollars in value, be valid and binding upon the minor.”). For
27
amounts over $10,000, a parent or guardian must obtain Probate Court approval. See
CONN. GEN. STAT. § 45a-631(a) (2012).
Taxation of Costs
An award of costs in a civil action is governed by CONN. GEN. STAT. § 52-257 (2012).
Taxation of costs is regulated by Connecticut Practice Book § 18-5. It allows the clerk to
tax costs in civil cases fourteen days after the filing of a written bill of costs provided that
no objection is filed.
Unique Damages Issues
Too many to summarize. Please contact Connecticut counsel.
28
MISCELLANEOUS
State Court
The appeals process in Connecticut’s state court system is governed by
Connecticut’s Rules of Appellate Procedure, which is a component of the Connecticut
Practice Book. Connecticut’s Rules of Appellate Procedure may be accessed on-line at
www.jud.ct.gov., and should be carefully reviewed before undertaking an appeal. The
first step in the appeal process is knowing what decisions can be appealed to either the
Appellate Court or the Supreme Court. With one exception, only decisions of the
Superior Court can be appealed. The exception is in workers’ compensation cases where
appeals bypass the Superior Court and go directly to the Appellate Court. See CONN.
GEN. STAT. § 31-301b (2012); Practice Book § 76-1. Other administrative decisions, as
well as Probate Court decisions, must first be appealed to the Superior Court.
In general, you have twenty (20) days from the date that notice of the judgment or
decision is issued by the judge or clerk (not when it is received by the lawyer or litigant).
Practice Book § 63-1 (a).
Federal Court
Appeals from judgments or decisions rendered in the United States District Court,
District of Connecticut, are governed by Federal Rules of Appellate Procedure and by the
Local Rules of the Court of Appeals for the Second Circuit. The time for filing a notice
of appeal is addressed in FRAP 49(a) generally, must be filed with the district clerk
within thirty days after and judgment or order appealed from is entered.
29
Description of the Organization of the Connecticut State Court System
Appointments to the Bench
Connecticut’s method of appointment of judges to the Superior Court is through
nomination by the governor from a list compiled by the Judicial Selection Commission.
Nominees must be approved and appointed by the General Assembly, and serve a term of
eight years. Appointment to Connecticut’s appellate courts is also by means of
gubernatorial appointment, and every judge of the Superior Court, by virtue of
appointment to the Superior Court, is qualified to serve on the Connecticut Appellate
Court or the Connecticut Supreme Court.
Trial Court
The Connecticut Superior Court is the trial court and hears civil, criminal, family
and juvenile matters. The Civil Division of the Superior Court is divided into five parts
or types:





Administrative Appeals;
Civil Jury;
Civil Non-Jury;
Landlord-Tenant, including evictions (called summary process); and
Small claims
Appellate Courts
Connecticut has two appellate courts: Connecticut Appellate Court and
Connecticut Supreme Court. Both appellate courts hear oral arguments on pending cases
between September and June of each year. The Supreme Court consists of seven justices
and the Connecticut Appellate Court, which serves as the intermediate appellate court,
consists of nine judges.
Description of the Organization of the Federal Court System
Federal Court Locations
The District of Connecticut has eight active judges, six senior judges and five
magistrate judges. Court proceedings take place in Federal courthouses located in
Bridgeport, Hartford and New Haven.
Local Practice Nuances
State Court
30
State Court proceedings are governed by the Connecticut Practice Book. Local
State Court practice nuances include, e-filing and a short calendar process for the hearing
and adjudication of motions.
Federal Court
Each District Court Judge in Connecticut has his or her own Chambers Practices,
which vary from judge to judge. Chambers Practices are available on line at
www.ctd.uscourts.gov.
Reconsideration
State Court
In state court, a motion to reargue is governed by Connecticut Practice Book
Section 11-12 and must be filed within twenty days from the issuance of notice of the
rendition of the decision or order.
Federal Court
In federal court, a motion to reargue or a motion for reconsideration falls under
the purview of Rule 60 of the Federal Rules of Civil Procedure and “must be made within
a reasonable time.” FED. R. CIV. P. 60(c)(1) (2012).
Rules Governing Timing of Motions
State Court
In state court, the time to plead is governed by Connecticut Practice Book Section
10-8, which provides that pleadings shall advance within thirty days of the return date
and subsequent pleading or motions shall advance at least one step within each
successive period of fifteen days from the preceding pleadings.
Federal Court
In federal court, pleadings and motions are governed by Rule 7 of the Federal
Rules of Civil Procedure. Pursuant to Connecticut’s Local Rules, unless otherwise
ordered by the court, all memoranda in opposition to any motion shall be filed within
twenty-one days of the filing of the motion, and shall indicate in the lower margin of the
first page of such memorandum whether oral argument is requested. L. CIV. R. 7(a).
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PRODUCT LIABILITY
Alternative Design
Product liability claims are governed by the Connecticut Product Liability Act.
CONN. GEN. STAT. § 52-572m et seq. (2012). A “product liability claim” includes all
claims against a product seller for personal injury, death or property damage caused by
the manufacture, design, formula, preparation, assembly, installation, testing, warning,
instructions, marketing, packaging, or labeling of any product. CONN. GEN. STAT. § 52572m(b) (2012). A product liability claim under the Product Liability Act is the
exclusive remedy against product sellers for damage to property, including the product
itself, and personal injury or wrongful death caused by a product. CONN. GEN. STAT.
§ 52-572n (2012). As between commercial parties, a claim for commercial loss is outside
the scope of the Product Liability Act. CONN. GEN. STAT. § 52-572m(d) (2012). A
product liability claim under the act includes all actions based on the following legal
theories: strict liability in tort; negligence; breach of warranty; express or implied; breach
of or failure to discharge a duty to warn or instruct; and misrepresentation or
nondisclosure. CONN. GEN. STAT. § 52-572m(b) (2012).
A “product seller” subject to liability under the Product Liability Act includes
“any person or entity, including a manufacturer, wholesaler, distributor or retailer who is
engaged in the business of selling such products whether the sale is for resale or for use
or consumption.” CONN. GEN. STAT. § 52-572m(a) (2012). A manufacturer includes
“product sellers who design, assemble, fabricate, construct, process, package or otherwise
prepare a product or component part of a product prior to its sale to a user or consumer.”
CONN. GEN. STAT. § 52-572m(e) (2012). The term “manufacturer” also includes lessors
or bailors of products who are engaged in the business of leasing or bailment of products.
Id.
A product seller may be held liable under the Connecticut Product Liability for a
defectively designed product that causes harm to the end user. In order to establish
liability under the Act based on a design defect, the plaintiff must prove that the design of
the product made the product unreasonably dangerous, i.e. the product is “dangerous to
an extent beyond that which would be contemplated by the ordinary consumer who
purchases it, with the ordinary knowledge common to the community as to its
characteristics." Potter v. Chi. Pneumatic Tool Co., 241 Conn. 199, 214-15, 694 A.2d
1319 (1997). A plaintiff need not establish the existence of a reasonable alternative
design in order to prevail on a design defect claim under the Connecticut Product
Liability Act. Id. When determining whether a product is unreasonably dangerous based
on the reasonable expectations of the ordinary consumer, the trier of fact may, but is not
required to, consider “the usefulness of the product, the likelihood and severity of the
danger posed by the design, the feasibility of an alternative design, the financial cost of
an improved design, the ability to reduce the product's danger without impairing its
usefulness or making it too expensive, and the feasibility of spreading the loss by
increasing the product's price.” Potter, 241 Conn. at 221. The availability of a feasible
32
alternative design is a factor that the plaintiff may, rather than must, prove in order to
establish that a product's risks outweigh its utility. Id. Under Connecticut law, “the
ordinary consumer expectation test is appropriate when the everyday experience of the
particular product's users permits the inference that the product did not meet minimum
safety expectations.” Id. at 222. When the facts of a particular case do not reasonably
permit the inference that a product did not meet the safety expectations of the ordinary
consumer, however, the trier of fact should engage in the risk-utility balancing analysis.
No appellate authority exists in Connecticut as to whether a claim that a
prescription drug was defectively designed is a viable claim under the Connecticut
Product Liability Act. One federal court has held, however, that the Connecticut
Supreme Court would permit recovery for a design defect in prescriptions drugs. Moss v.
Wyeth, 2012 U.S. Dist. LEXIS 72569 (D. Conn. May 24, 2012).
Component Part Doctrine
The seller of a component part may be held liable for personal injury, property
damage or wrongful death under the Product Liability Act. CONN. GEN. STAT. §§ 52527n(a), 52-572m(a), 52-572m(e) (2012). The manufacturer of a component part is not
liable for a defect in the completed product into which the component part is incorporated
unless the manufacturer played a substantial role in the integration of the component into
the final product and the integration of the component causes the product to be defective.
Fallon v. The Matworks, 50 Conn. Supp. 207, 220-21 (2007). A component part
manufacturer may also be held liable for any defects in the component part it
manufactures. Id.
Learned Intermediary/Sophisticated User
Connecticut law recognizes the learned intermediary and sophisticated user
doctrines. The sophisticated user doctrine "protects a manufacturer from liability only if
the chain of distribution is such that the duty to warn ultimate users should fall on an
intermediary in that chain, rather than on the manufacturer." The sophisticated user
doctrine may be applied to any type of product, not just those that are unavoidably
unsafe. Vitanza v. Upjohn Co., 257 Conn. 365, 390-91, 778 A.2d 829 (2001).
The learned intermediary doctrine is an exception to the general rule requiring a
manufacturer to warn users or consumers of its products of dangers associated with
known dangers of its products. Hurley v. The Heart Physicians, 278 Conn. 305, 316, 898
A.2d 777 (2006); Vitanza, 257 Conn. at 375. The learned intermediary doctrine applies
in the context of prescription drugs and prescription implantable medical devices.
Hurley, 278 Conn. at 317. It is based on the common law, under which the manufacturer
of a prescription drug owed a duty to warn of the dangers associated with use of the drug
only to the prescribing physician. Vitanza, 257 Conn. at 389. The doctrine applies
particularly to the medical field and generally involves unavoidably unsafe products. Id.
at 390. Under the learned intermediary doctrine, “adequate warnings to prescribing
physicians obviate the need for manufacturers of prescription products to warn ultimate
consumers directly” of the dangerous propensities of a particular drug. Id. The learned
33
intermediary doctrine is an absolute defense to a product defect claim based on
inadequate warnings under the Connecticut Product Liability Act when adequate
warnings are given to the prescribing physician. Id. at 388. Whether or not the learned
intermediary doctrine may serve as an affirmative defense to a claim that a prescription
drug was defectively designed must be determined on a case by case basis. Moss v.
Wyeth, Inc., 2012 U.S. Dist. LEXIS 72569 at *18 (D. Conn. May 24, 2012).
Misuse and Alteration
A manufacturer of a product is not liable for harm that would not have occurred
but for a third party’s alteration or modification of the product in question. CONN. GEN.
STAT. § 52-572p (2012). The defense does not apply when the alteration or modification:
(1) was in accordance with the manufacturer’s instructions or specifications; (2) was
made with the manufacturer’s consent; or (3) was the result of conduct that the
manufacturer reasonably should have anticipated. Id.; Potter v. Chi. Pneumatic Tool Co.,
241 Conn. 199, 229, 694 A.2d 1319 (1997). The misuse and alteration defense is not an
absolute defense to a plaintiff’s claim under the Product Liability Act, but it is part of the
plaintiff’s prima facie case of proving that a particular product reached the consumer or
user without substantial change in the condition in which it was sold. Potter, 241 Conn.
at 230. A manufacturer of a defective product is relieved of liability under the Product
Liability Act based on misuse or alternation only if the misuse or alteration was the sole
proximate cause of the claimant’s harm. Id.
It is incumbent on a product seller to invoke the defense of misuse or alteration
and to produce evidence that such misuse or alteration was the sole proximate cause of
the harm suffered. If the defendant does so, then the plaintiff must disprove the alleged
substantial change. If the plaintiff is able to establish that the harm for which recovery is
sought would have occurred notwithstanding the alteration or misuse, recovery is still
permitted under the Product Liability Act. Potter, 241 Conn. at 237. Alternatively, the
plaintiff must establish that the alteration or modification: (1) was in accordance with the
manufacturer's instructions or specifications; (2) was made with the manufacturer's
consent; or (3) was the result of conduct that the manufacturer reasonably should have
anticipated. CONN. GEN. STAT. § 52-572p (2012); Potter 241 Conn. at 237.
Post-Accident Improvements v. Subsequent Remedial Measures
In general, “evidence of measures taken after an event, which if taken before the
event would have made injury or damage less likely to result, is inadmissible to prove
negligence or culpable conduct in connection with the event. Evidence of those measures
is admissible when offered to prove controverted issues such as ownership, control or
feasibility or precautionary measures.” CONN. CODE EVID. § 4-7(a). An exception exists,
however, in product liability actions. In a strict product liability action, evidence of
subsequent remedial measures is admissible. Id. at § 4-7(b); Wagner v. Clark Equip. Co.,
243 Conn. 168, 194-95, 700 A.2d 38 (1997). “Subsequent change evidence may be
highly probative of defectiveness because it provides a safer alternative against which to
compare the allegedly defective product.” Wagner, 243 Conn. at 195. Evidence of postaccident modifications to a product by a third-party employer of an injured claimant may
34
be relevant to the issue of feasibility in a product liability defective design case. Potter v.
Chi. Pneumatic Tool Co., 241 Conn. 199, 220-21, 694 A.2d 1319 (1997); Wagner, 243
Conn. at 198-99.
Preemption
A product liability defendant may assert that a cause of action under the
Connecticut Product Liability Act is preempted by federal legislation. See Mullin v.
Guidant Corp., 114 Conn. App. 279, 970 A.2d 733 (2009) (holding that plaintiff’s claim
under the Connecticut Product Liability Act was preempted by the Medical Device
Amendments Act of 1976, 21 U.S.C.A. § 360c et seq.).
State of the Art Defenses
A state of the art defense is properly recognized when the alleged defect in a
product arises from a failure to warn. Wegryn v. Smith & Nephew, Inc., 2008 Conn.
Super. LEXIS 587 *14 (Conn. Super. Ct. 2008). A product manufacturer’s duty to warn
of the alleged dangerous propensities of its product is dependent upon the state of the
knowledge concerning the product at the time that the breach of duty is alleged to have
occurred. Tomer v. Am. Home Products Corp., 170 Conn. 681, 687, 368 A.2d 35 (1976).
A product manufacturer cannot be held to standards which exceed the limits of scientific
advances at the time of the allegedly tortious conduct.
Id. at 687.
Warnings and Labels/Post-Sale Duty
The Connecticut Product Liability Act provides that a product seller may be liable
under the Act if the injured claimant proves by a preponderance of the evidence that the
product was defective in that adequate warnings or instructions were not provided.
CONN. GEN. STAT. § 52-572q(a) (2012). “In determining whether instructions or
warnings were required and, if required, whether they were adequate, the trier of fact may
consider: (1) the likelihood that the product would cause the harm suffered by the
claimant; (2) the ability of the product seller to anticipate at the time of manufacture that
the expected product user would be aware of the product risk, and the nature of the
potential harm; and (3) the technological feasibility and cost of warnings and
instructions.” CONN. GEN. STAT. § 52-572q(b) (2012). A product seller is subject to
liability under the Act for a product that may be defective because the manufacturer or
seller failed to warn of the product’s unreasonably dangerous propensities. Under such
circumstances, the failure to warn, by itself, constitutes the defect. Moran v. E. Equip.
Sales, Inc., 76 Conn. App. 137, 148, 818 A.2d 848 (2003). The term "unreasonably
dangerous" with respect to a product liability claim means that the product "sold must be
dangerous to an extent beyond that which would be contemplated by the ordinary
consumer who purchases it, with the ordinary knowledge common to the community as
to its [characteristics]." Potter v. Chi. Pneumatic Tool Co., 241 Conn. 199, 214-15, 694
A.2d 1319 (1997). If a supplier is aware of its purchaser’s knowledge and sophistication
with respect to the product, the supplier reasonably may choose not to issue warnings.
Sharp v. Wyatt, Inc., 31 Conn. App. 824, 848, 627 A.2d 1347 (1993).
35
Warranty
The Connecticut Product Liability Act provides the exclusive remedy against a
product seller for harm caused by a defective product, including any claim of breach of
express warranty or implied warranty. CONN. GEN. STAT. § 52-572n (2012). A product
liability claim is defined broadly to include, but not be limited to, all actions based breach
of warranty, express or implied. CONN. GEN. STAT. § 52-572m(b) (2012). A plaintiff
need not establish privity with the product seller in order to recover in warranty under the
Product Liability Act. Rosenthal v. Ford Motor Co., 462 F. Supp. 2d 296, 308 (D. Conn.
2006); Potter v. Chi. Pneumatic Tool Co., 241 Conn. 199, 211 (1997); Moran v. E.
Equip. Sales, Inc., 76 Conn. App. 137, 144, 818 A.2d 848 (2003). If a particular injury is
not caused by a defective product or a party is not pursuing a claim for personal injury,
property damage or wrongful death, then the product liability act does not bar such claim.
The product liability act does not cover damages for commercial loss between
commercial parties. If a claim involves commercial loss between commercial parties that
is not covered by the product liability act, a separate action for breach of express or
implied warranty is permitted.
36
PROFESSIONAL LIABILITY
A)
Admissibility of Administrative Agency Investigations
A trial court may admit administrative agency findings within the court’s
discretion, although subject to objections re hearsay, undue prejudice and invasion of
exclusive province of the jury. Federal Rule of Evidence 803(8)-(c) provide an exception
to the hearsay rule for government reports. The Connecticut Code of Evidence used in
State Court provides similar authority in Rule 8-3(7) for admission of public records and
reports – with three distinct requirements for admissibility: (a) a record made by a public
official under a duty to make it, (b) the report or record was made in the course of his
official duties, and (c) the official or person with a duty to transmit information had
personal knowledge of the matter contained in the report.
B)
Applicability of Statutorily Based Fraud Claims
Fraud – Unfair Trade Practices
Generally a claim against an attorney for an unfair trade practice in violation of
the Connecticut Unfair Trade Practices Act (CUTPA) Sec. 42-110a, et seq. (2012) must
be based only on the entrepreneurial aspects of the practice of law. Malpractice does not
fall under CUTPA. Entrepreneurial aspects of a law practice involve solicitation of
business and billing practices as opposed to representational aspects of legal procedure.
See Anderson v. Schoenhorn, 89 Conn. App. 666, 674, 874 A.2d 798 (2005).
Misrepresentations about the intention to represent the client or about a firm’s size or
expertise support a CUTPA claim. Stevenson v. McMillan, 38 Conn. L. Rptr. 788, 2005
Conn. Super, Lexis 500; Nosik v. Bowman, 2002 Conn. Super. Lexis 2301.
Fraud Cases
Connecticut law provides relief to a creditor under the Uniform Fraudulent
Transfer Act (UFTA), Sect. 52-552a-5521 and CUTPA. An attorney may not be held
liable under CUTPA even for intentional conduct provided the attorney was representing
his client. Suffield Dev. Assocs. Ltd. P’ship v. Nat’l Loan Investors L.P., 260 Conn. 766,
784, 802 A.2d 44 (2002). Similarly, a district court has held there is no Connecticut
authority for a cause of action against an attorney for aiding a fraudulent transfer. Nastro
v. D’Onofrio, 263 F. Supp. 2d 446.
C)
Conditions Precedent to Malpractice Actions
In an attorney malpractice action, the plaintiff must establish (1) the existence of
an attorney client relationship, (2) the attorney’s wrongful act or omission, (3) causation,
and (4) damages. Mayer v. Biafore Floreto & O’Neill, 245 Conn. 88, 92 (1998). A
plaintiff may plead both negligence and contract claims but contract claims may not
simply repeat negligence claims by “talismanically invoking contract language in a
37
complaint.” Gazo v. Stamford, 255 Conn. 245, 262 (2001). A contract claim should
allege specific actions a lawyer promised to take and did not complete.
To prevail, the plaintiff, as a general rule in a malpractice action, must present
expert testimony to establish the standard of professional care or skill. Davis v. Margolis,
215 Conn. 408, 416, 576 A.2d 489 (1990). An expert on the standard of care is also
required on a malpractice claim styled as a claim of breach of fiduciary duty against an
attorney. Marciano v. Kraner, 126 Conn. App. 171, appeal denied, 300 Conn. 922
(2011). An exception to the rule applies when the failure or neglect is clear even to a lay
person, such as failing to do anything to represent a client’s interest. See Paul v. Gordon,
58 Conn. App. 724, 727, 754 A.2d 851 (2000); Pagan v. Gonzalez, 113 Conn. App. 135,
141, 965 A.2d 582 (2009). In a non-jury case tried by a judge, an expert may not be
required because a judge knows generally about the practice of law before the court.
Dubreuil v. Witt, 80 Conn. App. 410-421-422, affirmed, 271 Conn. 782 (2004).
By statute, 52-190g, a medical malpractice complaint must include a certificate of
merit/good faith opinion letter signed by a similar health care provider. The standard of
detail of the good faith opinion is set forth in Wilcox v. Schwartz, 303 Conn. 630, 2012
WL 40 (Conn. 2012).
D)
Emotional Distress Recovery in Legal Malpractice Claims
Connecticut recognizes two forms of claims relating to emotional distress: (1)
negligent infliction of emotional distress; and (2) intentional infliction of emotional
distress.
Negligent Infliction of Emotional Distress
To prevail on a claim of negligent infliction of emotional distress, the plaintiff
must prove (1) the defendant’s conduct created an unreasonable risk of emotional
distress; (2) the distress was foreseeable; (3) the distress was severe enough that it might
result in illness or bodily harm; and (4) the defendant’s conduct was the cause of
plaintiff’s distress. Claims for negligent infliction of emotional distress have been
allowed against attorneys by prior clients and in one case even against opposing counsel.
Stone v. Norman Pattis, et al., Docket No. FST CV09-5011515-S. The court in each case
will generally decide on a motion to strike whether the elements of the cause of action
have been plead.
Intentional infliction of emotional distress requires (1) the intention to inflict
emotional distress or that the defendant knew or should have known that emotional
distress was the likely result of his conduct; (2) that the conduct was extreme and
outrageous; (3) causation; and (4) that the distress sustained was severe. The test for
whether an act is extreme and outrageous is initially for the court to decide. The conduct
must be so outrageous in character and so extreme in degree as to go beyond all possible
bounds of decency and be regarded as atrocious and utterly intolerable in a civilized
community. Carroll v. Allstate Ins. Co., 262 Conn. 433, 443, 815 A.2d 119 (2003).
38
A majority of superior court decisions hold that the allegations of a cause of
action for legal malpractice are not extreme and outrageous. See Corley v. Watstein, et
al., 2012 Conn. Super. Lexis 909 (2012) for discussion of state court decisions. Since
this is a case by case analysis if extreme and outrageous conduct intended to cause harm
and resulting in extreme or severe injury is alleged, the claim may survive initial motion
practice. See Peebles v. Ayres, Docket No. CV-10-6006879-S, Superior Court,
December 29, 2011, Wilson, J.
E)
Judicial Immunity Doctrine and Litigation Privilege
The doctrine of absolute immunity is also known in Connecticut as the litigation
privilege. As set forth in Pelyan v. Ellis, 200 Conn. 243, 245, 510 A.2d 1337 (1986) the
law of lawyer immunity from civil process is essentially absolute. The immunity from
liability applies to allegedly defamatory communications in the course of the judicial
proceeding. Mazzochi v. Beck, 204 Conn. 490, 497, 529 A.2d 171 (1987). The rule has
been applied to claims of fraud and intentional infliction of emotional distress against
counsel. See Simmons v. Seaman, et al., 129 Conn. App. 651, 32 A.3d 1, 2011 Conn.
App. Lexis 359, but note this case is on appeal to the Connecticut Supreme Court
regarding immunity for fraud by the attorney in the litigation.
The absolute immunity does not attach to pleadings that form the basis for the tort
of vexatious litigation.
F)
Malicious Prosecution Claims and Vexatious Suit Actions
In Connecticut, the causes of action for malicious prosecution and vexatious suit
are essentially identical with reference to claims arising from prior civil lawsuits. The
essential elements of the common law tort are (1) want of probable cause, (2) malice, and
(3) a termination of the suit in the new plaintiff’s favor. OSP, Inc. v. Aetna Cas. & Surety
Co., 256 Conn. 343, 361, 773 A.2d 906 (2001). A withdrawal of the prior action without
consideration or settlement is a termination in favor of the new plaintiff. DeLaurentis v.
New Haven, 220 Conn. 225, 250, 597 A.2d 807 (1991).
The statutory claim for vexatious litigation is set forth in 52-568 and provides for
double damages if the prior action was without probable cause or treble damages if also
with malicious intent to unjustly vex and trouble another person. Accordingly, the
elements of common law claims of vexatious suit and statutory actions are nearly
identical. An action for vexatious suit may be based on a prior administrative action or
complaint terminated in favor of the new plaintiff. A separate statute, 52-568a allows an
action for damages for a groundless suit against an owner or operator of a pick or cutyour-own agricultural operation.
An action for malicious prosecution ordinarily implies a prior criminal complaint
and requires proof of want of probable cause, malice and termination of the underlying
39
matter in plaintiff’s favor. A plea or agreement to a program of pretrial relief, such as
accelerated rehabilitation, is not a termination in favor of the new plaintiff.
Actions for vexatious suit or malicious prosecution may be brought against an
attorney. The same requirements re want of probable cause apply to such an action.
Suits which all reasonable lawyers agree totally lack merit – that is those which lack
probable cause – are the least meritorious of all meritless suits. Only this subgroup of
meritless suits present no probable cause. Falls Church Group v. Tyler Cooper &
Alcorn, 89 Conn. App. 459, 473-74 (2005), aff’d, 281 Conn. 84, 912 A.2d 1019 (2007).
G)
Abuse of Process Claim
It is an abuse of process when a lawyer or person uses a legal process in an
improper manner or to accomplish a purpose for which it was not designed. The use
must be primarily to accomplish a purpose for which it is not designed. Suffield Dev.
Assocs. Ltd. v. Nat’l Loan Investors L.P., 260 Conn. 766, 772-73, 802 A.2d 44 (2002).
An attorney who uses the legal system for an improper purpose may be liable for
damages under this cause of action.
H)
Recourse Available to Professionals Wrongly Accused of Malpractice Claim
The professional wrongly accused of malpractice such as a physician, attorney or
other professional has the remedies for vexatious suit under the common law for damages
or under the statute for double or treble damages (52-568) and possibly an action for
abuse of process. See Section (F) and (G) above. An action for defamation or if an
untrue statement is made in writing, a claim for libel, may be available for statements
made by a claimant outside of the litigation and not in the context of administrative
complaints or grievance claims which are protected by privilege.
I)
Use of Expert Testimony
Opinions and expert testimony under the Connecticut Code of Evidence are
controlled by Rule 7-2, 7-3 and 7-4. A witness is qualified as an expert by knowledge,
skill, experience, training, education or otherwise concerning scientific, technical or other
specialized knowledge (7-2). The testimony must assist the trier of fact on a matter at
issue. The trier of fact must first determine that the evidence is reliable. State v. Porter,
241 Conn. 57, cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L.Ed 2d 645 (1998).
Porter applies a similar approach to the Daubert case law federal approach. The
Connecticut Code of Evidence took no position on the Kumbo Tire federal policy
regarding the expansion of the trial court gatekeeping function.
Rule 7-3 deals with the offer of an opinion on the ultimate issue and Rule 7-4
provide for testimony in the form of an opinion after a proper factual foundation. The
use of hypothetical questions is permitted under 7-4(c) if the question presents essential
facts relating to the case.
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J)
Third Party Liability for Legal Malpractice
Connecticut law severely limits claims by non-clients for legal malpractice
against an attorney who represented another party. See Krawczyk v. Stingle, 208 Conn.
239 (1988). There the Supreme Court rejected a claim against an attorney by likely
beneficiaries of an unexecuted will because liability would “not comport with a lawyer’s
duty of undivided liability to the client.” See also Gould v. Mellick & Sexton, 263 Conn.
140, 819 A.2d 216 (2003) – limited partners could not sue law firm representing the
limited partnership. The claim may exist in certain limited circumstances based on a
theory of third party beneficiaries of legal services in the practice area of estate planning
in the case of an executed will. Connecticut law requires all of the following factors to be
considered: (1) whether the primary or direct purpose of the transaction was to benefit a
third party, (2) foreseeability of harm, (3) the proximity of the injury to the conduct
complained of, (4) the policy of preventing future harm, and (5) the burden on the legal
profession from the imposition of liability. The last factor is the most difficult for a third
party beneficiary plaintiff to overcome. See Krawczyk, 208 Conn. at 239.
In a case involving a will already executed, the Connecticut Supreme Court held a
lawyer could be liable to an intended beneficiary of the will. Stowe v. Smith, 184 Conn.
194 (1981). The case law following the Connecticut Supreme Court decision in
Krawczyk v. Stingle, has repeatedly rejected claims of malpractice liability by third party
beneficiaries of transactions handled by attorneys for specific clients.
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