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CIVIL PROCEDURE - A prevailing party at trial may obtain reimbursement for costs which include an expert's time spent in preparing for a deposition:

Practice Book § 13-4(3) provides in part that the judicial authority "shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery. ..." As a matter of first impression, the Connecticut Supreme Court holds that this language does not limit the financial responsibility of the party seeking further discovery concerning an expert's testimony to the expert's time at the deposition, and is broad enough to include payment of a reasonable fee not only for the testimony but also for preparation. Levesque v. Bristol Hospital, Inc., 286 Conn. 234 (2007)

CONSTRUCTION LAW - The Connecticut Supreme Court holds that a general contractor and permit applicant do not have a duty to an employee of a subcontractor under certain circumstances:

The plaintiff was an employee of a structural steel fabrication and erection subcontractor that had been hired by the defendant, Sordoni/Skanska Construction Company. Under its subcontract, the plaintiff 's employer had responsibility to provide all of the structural steel for the project. The plaintiff 's employer also contracted to inspect all welds. The general contractor reserved the right to inspect the structural steel "solely for its own benefit." The plaintiff was injured while working beneath the building's large steel frame. One of the beams had only been "tack" welded to temporarily hold the steel beam in place pending a full, load-bearing weld. Before it could be fully welded, the beam gave way while the plaintiff was working beneath it. After a jury verdict in excess of $41 million, the Supreme Court holds on appeal that a verdict should have been directed for the defendant. First, the Supreme Court rejects the plaintiff 's claim that the general contractor/permit applicant had a nondelegable duty under the building code. The Court notes that under the pertinent provisions of the building code, a permit applicant is only required to "provide" special inspections of steel fabricated items, and in the case at bar, this obligation was appropriately delegated by contract to the plaintiff 's employer. The Supreme Court concludes that the general contractor therefore had no legal duty to conduct these inspections. Second, the Court rejects the plaintiff 's claim that General Statutes § 29-554a (imposing penalties for violations of the building code), § 29-263 (requiring review of building plans to determine compliance with the building code), § 29-276b (requiring independent review of plans and specifications to ensure compliance with the building code) and § 29-265 (requiring a certificate of occupancy stating that the structure or work performed substantially conforms to the building code) imposed an obligation on Sordoni/Skanska to inspect the welds. Third, the Court holds that Sordoni/Skanska had no legal duty to the plaintiff under the principles of common law negligence "because the plaintiff 's injury was not foreseeable." The Court states: "No ordinary person in Sordoni's position, knowing what Sordoni knew or should have known, could have foreseen that the plaintiff would be harmed because the defective weld had not been inspected. [The plaintiff 's employer] was required under [its contract] to perform its work 'in strict compliance' with the applicable 'drawings, specifications, addendum, and bulletins. ...' Notes 13 and 21, respectively, of drawing S-9 required [the plaintiff 's employer] to ensure that 'all connections would be in accordance with AISC specifications' and that 'all structural welding would conform to AWS and AISC specifications.' [The plaintiff's employer] was also required under its subcontract to retain an independent inspection agency to inspect all welds. ... Finally, no evidence was presented at trial that Sordoni knew, or had reason to know, that [the plaintiff 's employer] had fabricated a defective weld, had failed to inspect all welds as required under its subcontract or failed to notice at any other time prior to erection of column 313 on the Pitney Bowes site that the weld was defective." Fourth, the Court concludes that "the fabrication and inspection of welds is not the kind of work that, when properly done, naturally would expose others to injury unless special preventive measures were taken." The Court states that its reasoning is "consistent with that of other jurisdictions that have rejected claims alleging that construction work is inherently dangerous." Finally, the Court rejects the plaintiff 's claim that Sordoni had a duty based on retention of control over the "area or instrumentality" that caused the plaintiff 's harm. The Court notes that Sordoni had subcontracted the fabrication and inspection of the steel elements, including all welds, to the plaintiff 's employer and that inspections by Sordoni and a safety manual promulgated by Sordoni did not create authority or control over specific construction activities which had been subcontracted out to the plaintiff 's employer. Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563 (2008)

CONSTRUCTION LAW - The Connecticut Supreme Court holds that (1) evidence of negligence by an injured employee's employer may be offered under certain circumstances and (2) a general contractor does not, under certain circumstances, have a non-delegable duty to provide a safe worksite:

In what it called an issue of first impression, the Court explicates a footnote from its prior ruling in Durniak v. August Winter & Sons, Inc., 222 Conn. 775 (1992), which stated that a defendant "might" be allowed to offer such evidence "if, instead of relying on a special defense alleging the intervening employer's negligence, the defendant, having filed a general denial, sought to make an evidentiary showing that it was the employer's conduct rather than the defendant's conduct that had proximately caused the employee's injuries." In explaining the statement, the Court adopts the principle that "a defendant is entitled to assert, under a general denial, that the negligence of an employer who is not a party to the action is the sole proximate cause of the plaintiff 's injuries." (Emphasis added.) The Court repeats this statement later in its opinion as well. This leads to the illogical result that a defendant cannot show the negligence of the plaintiff 's employer when the employer is a party, but can do so when the employer is not a party. The Court also goes on to hold that the defendant, a general contractor, did not have a nondelegable duty for overall site safety and that the plaintiff 's employer rather than the general contractor was in control of the excavation of the trench in which the plaintiff was injured. The Court notes that the trial court had relied on the general contractor's own safety rules and the testimony of its two supervisors in determining that it had overall responsibility for safety on the jobsite and therefore had a non-delegable duty to insure that the work was performed safely. The Court states: "Overall responsibility for safety on the worksite, however, does not necessarily translate into a non-delegable duty. Konover's subcontract agreement with Soneco required that Soneco comply with all applicable federal, state and local safety rules and regulations, follow Konover's project safety plan, maintain safe and healthful working conditions, provide required mechanical safeguards and personal protective equipment, and insure that employees comply with the established safety regulations and practices ... . In addition, Soneco assumed 'the entire responsibility and liability for all work, supervision, labor and materials' provided under the subcontract agreement until final acceptance of the work by the owner. Soneco also agreed to accept liability for any loss, damage or destruction from any cause other than Konover's sole negligence. ... Furthermore, Konover's safety manual was not the source of a contractual or legal duty to provide a safe worksite but was merely an informational tool. ... Neither [of the two Konover supervisors] testified that Konover retained direct control over Soneco's work, over Soneco's employees or over the manner in which the work was to be performed, nor did either testify that Konover assumed direct control over, or interfered with, Soneco's responsibility to perform its work safely. To the contrary, both ... emphasized that, even though [they] exercised general supervision over the worksite, Soneco had direct responsibility for supervising the work of its employees." Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20 (2008)

CUTPA AND PRODUCT LIABILITY - A plaintiff may not maintain a CUTPA claim in conjunction with a product liability claim where there is no allegation of harm caused by any "unfair or deceptive trade practice," separate from the personal injury allegations:

The plaintiff alleged that she was injured when a scooter manufactured by Pride and purchased from Maxim moved forward and struck her in the leg. She sued Maxim under the Connecticut Product Liability Act (C.G.S. § 52-572n(a)) and under the Connecticut Unfair Trade Practices Act (C.G.S. § 42-110b).The defendant moved to strike the CUTPA claim, arguing that § 52-572n was her exclusive remedy. The Court applies the test articulated by the Connecticut Supreme Court in Gerrity v. R.J. Reynolds Tobacco Co., 263 Conn. 120 (2003), in which the Court permitted a CUTPA claim to stand in conjunction with a claim under § 52-572n where it found that the claim of financial injury which the plaintiff alleged "cannot reasonably be construed to be a claim for personal injury, death or property damage," within the meaning of the Product Liability Act. Applying the Gerrity test to the case before it, the trial court grants the motion to strike, concluding that an allegation that the defendant withheld recall information fits squarely within the definition of a product liability claim and the plaintiff had failed to allege financial harm caused by any unfair or deceptive trade practice so as to bring the claim outside the scope of § 52-572n. Jordan v. Maxim Mobility, LLC, 2008 WL 344716 (Conn. Super.)(Gilligan, J.)

DAMAGES - A plaintiff is not entitled to a charge on the "eggshell plaintiff " doctrine unless the plaintiff alleges an aggravation of a preexisting condition or prior injury:

The plaintiff commenced suit after a slip and fall while exiting her motor vehicle. After a verdict for the defendant in which the jury found that the plaintiff failed to prove that the defendant's negligence was the proximate cause of her injuries, the plaintiff moved to set aside the verdict claiming the court had improperly failed to provide the jury with an "eggshell plaintiff " charge. Under this doctrine, "where a tort is committed, an injury may reasonably be anticipated, the wrongdoer is liable for the proximate results of that injury, although the consequences are more serious than they would have been, had the injured person been in perfect health." The Appellate Court holds that the trial court appropriately declined to give such a charge, stating: "The plaintiff did not plead in her complaint that the defendants' negligence aggravated any preexisting condition or prior injury. Moreover, the plaintiff did not file an amendment of her pleading to conform to the proof that she claims was offered by the defendants regarding the aggravation of the preexisting condition or prior injury." Lazzetta v. Nevas, 105 Conn. App. 591 (2008)

DAMAGES - The Supreme Court holds that a defendant is not automatically entitled to reduce a jury verdict based upon amounts received by the plaintiff in pretrial settlements with other defendants:

The plaintiffs brought suits arising out of the collision of two boats resulting in the death of two occupants and injuries to two other occupants. The estates received $874,000 each from defendants who settled prior to trial. The other plaintiffs each received $341,500 in settlement payments. At trial, the jury returned verdicts for the plaintiffs. The highest verdict was $175,000. The defendant filed motions for remittitur, seeking a reduction in the damages in an amount equal to the settlement payments the plaintiffs had already received. The trial court denied the motions and, on appeal, the Supreme Court affirms, holding that its prior cases made clear that "a trial court may, in the exercise of its discretion, reduce a jury award to account for pretrial settlements."The Court continues: "Before doing so, however, the court must determine that the settlement payments, when added to the jury award, render that award excessive as a matter of law, a threshold that is met only when the total amount received so far exceeds what is fair and reasonable as to be unconscionable." Mahon v. B.V. Unitron Manufacturing, Inc., 284 Conn. 645 (2007)

INSURANCE LAW - The court will not enforce an agreement to settle where the plaintiff mistakenly believed the policy limits at issue were $20,000 and the insurance carrier failed to correct said mistaken belief by disclosing its policy limits of $300,000:

The plaintiff was rear-ended by the defendant while driving on I-84 in Waterbury. He retained counsel, who brought suit and entered into settlement negotiations with the defendant's carrier. Counsel requested the defendant's policy limits and was informed that this information would not be provided. For reasons not stated in the opinion, counsel believed the policy limits to be $20,000. He agreed to resolve the case for the $20,000 policy limits and requested confirmation of said limits. Ultimately, a settlement draft in said amount was tendered and cashed. Counsel subsequently became aware that the applicable policy limits were $300,000. The defendants moved to enforce the settlement and the plaintiff objected to such motion. The court determines that the defendants needed to establish that they tendered payment in good faith in order to enforce the settlement agreement. Citing testimony from the claims handler to the effect that he knew the policy limits were not $20,000 but was trained not to disclose policy limits, that he was told that he would be operating in good faith if he remained silent in the face of the plaintiff 's mistaken belief that he was settling for the policy limits, and that he did not believe there was a meeting of the minds, the court concludes that the defendant carrier failed to observe reasonable commercial standards of fair dealing in the settlement negotiations. It further finds that the defendant carrier could not establish that it tendered payment in good faith, thus precluding it from establishing that it had a settlement agreement with the plaintiff under Connecticut Regulation § 42a-3-311. Ozkan v. Gallo, 2008 WL 1913906 (Conn.Super.)(Upson, J.)

INSURANCE LAW - The Supreme Court holds that a superfluous and arguably ambiguous provision on a declarations page cannot be reasonably construed to double the policy limit:

In the underlying litigation, the plaintiff commenced a medical malpractice action against a physician and a nurse practitioner employed by the physician, alleging that each of them negligently failed to diagnose and treat a central nervous system infection. In a subsequent declaratory judgment action the issue was whether the physician and nurse practitioner were each entitled to a separate $1 million policy limit under a policy issued to the physician. The declarations page listed the physician as the "insured." The declarations page also listed "paramedical employee coverage," a term not defined in the policy as one type of coverage provide under the policy. It also referenced by job title two nurse practioners employed by the physician. The section of the policy setting forth the limits of individual professional liability provided that the limit of $1 million for each medical incident "shall apply separately to each individual insured named in the declarations." Based upon its review of the declarations page, the Court concludes that only the physician was a "named insured" on the declarations page. The Court rejects the plaintiff 's claims that the declarations page created an ambiguity as to whether the nurse practitioner was entitled to a separate and additional $1 million limit. While recognizing that the declarations page contained superfluous language, the Court states that the reading proposed by the plaintiff would "directly conflict with other language in the insurance policy that indicates that the $1million limit for individual professional liability applies 'separately to each individual insured named in the declarations.'" The Court further states that it would not be reasonable to suppose that the insurer "extended, without defining paramedical employee coverage in the policy, and without setting forth applicable limits of liability or defining what would constitute a medical incident under that type of coverage, an additional limit of $1 million per medical incident of coverage for two nurse practitioners, without charging for that additional coverage." Connecticut Medical Ins. Co. v. Kulikowski, 286 Conn. 1 (2008)

MEDICAL MALPRACTICE - A child may recover for injuries he sustained while in utero when his mother was undergoing a gall bladder operation:

The plaintiff brought a medical malpractice action against the defendant-surgeon who performed a gall bladder operation on her when she was thirty-one weeks pregnant. She claimed that the defendant cut her common bile duct during the operation, did not realize that he had done so, and that this misconduct caused the plaintiff to become ill and require additional surgery. The infant plaintiff was born at thirty-four weeks and brought a claim through his mother that the defendant's conduct caused a premature birth and other attendant injuries. The defendant moved to strike the infant plaintiff 's claims on the basis that a surgeon performing a procedure on a pregnant patient owes no duty to the infant in utero. The court disagrees and denies the motion to strike. The court notes that "the Restatement (Second) of Torts §869 recognizes that a child may maintain a cause of action for prenatal injuries if that child is born alive. This cause of action appears to be recognized in all jurisdictions that have considered the issue, except in Louisiana. ... Connecticut, too, recognizes that a child born alive can maintain an action against a tortfeasor for injuries that occurred prenatally." Id. (citing In re Valerie D., 25 Conn. App. 586, 590 (1991)). Ultimately, the court holds that "[t]his case does not turn on the issue of whether the unborn child can be considered a "patient" of the physician. Rather it turns on the issue of forseeability. "Just as a psychiatrist who has knowledge of a specific foreseeable risk to an identifiable third party has a duty to the third party, ... a surgeon who knows or ought to know of the pregnancy of his patient has a duty to adhere to the appropriate standard of care so as not to cause injury to the patient's fetus in the event the child is born alive." Muisener v. Saranchak, 2008 WL 853773 (Conn. Super.)(Pittman, J.)

MEDICAL MALPRACTICE - Section 52-190a prohibits a party from filing suit and subsequently conducting the required "reasonable inquiry:"

Defendants moved to strike the plaintiff 's medical malpractice claim on the basis that the plaintiff had failed to comply with the prerequisites to filing suit which are set forth in General Statutes § 52-190a. Specifically, the defendants argued that the plaintiff had failed to file a good faith certificate and the written opinion of a similar health care provider. The defendants argued that the dates of the unsigned opinions, which were submitted after suit had been commenced and by way of an amendment to the original complaint, established that the opinions and letters were not obtained in advance of the plaintiff 's filing suit. The court grants the motion, finding that it could not conclude that the plaintiff had satisfied the prerequisites for filing a proper complaint in the action where the opinion letters were not generated until after the action was filed. Santorso v. Bristol Hosp., 2008 WL 1822786 (Conn.Super.)(Pittman, J.)

MUNICIPAL LAW - The Connecticut Appellate Court refines the governmental immunity analysis for defective premises claims:

The plaintiff commenced suit against a municipality arising out of a fall due to an allegedly uneven patio stone. Summary judgment was granted for the defendant municipality pursuant to General Statutes § 52-557n which provides that a municipality is not liable for damages to persons or property caused by "negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." The Appellate Court affirms summary judgment for the defendant, holding that the duties to inspect, maintain and repair are considered discretionary acts entitled to governmental immunity. The Court states that the duty to warn is a ministerial one, but that summary judgment was nonetheless appropriately granted for the defendant "because the plaintiff failed to provide an evidentiary foundation for her assertion that the defendant had made the initial determination of an unsafe condition." The Court states: "The plaintiff ... failed to submit any evidence that make the defendant's knowledge of a defect a genuine issue. Accordingly, the court properly rendered summary judgment because the plaintiff could not prove that the defendant had a duty to perform its ministerial warning function under § 16-173 of the Milford Code of Ordinances." Grignano v. Milford, 106 Conn. App. 648 (2008)

PRIVACY RIGHTS - An employer may be liable for wrongful termination where the employee was terminated for refusing to allow the employer to inspect the employee's telephone records:

The plaintiff claimed that the defendant, through its owner, demanded to inspect her private cellular telephone records to see if she was communicating with former partners in the company who had been expelled by the owner when he became the sole owner of the corporation. The plaintiff alleged that she refused to submit her private telephone records and that the owner thereafter placed her on indefinite suspension without pay. The plaintiff set forth claims for wrongful termination insofar as her indefinite suspension was in fact termination or constructive termination; a claim for statutory wrongful termination based upon her exercise of her constitutional rights under General Statutes § 31-51q; and, a cause of action under the intrusion upon seclusion portion of the invasion of privacy tort. The defendant moved to strike the plaintiff 's wrongful termination claim on the basis that the plaintiff had failed to specify a clear mandate of public policy to support her wrongful termination claim, failing to identify a specific statutory or common law public policy. In opposition to the motion to strike, the plaintiff argued that her wrongful discharge claim is based on an invasion of her right to privacy. The court denies the defendant's motion to strike finding that onnecticut has recognized the right to privacy. The court cites several cases which have held that "Connecticut recognizes a cause of action for invasion of privacy pursuant to which a plaintiff may make claims based upon intrusion upon seclusion ..." The court further bases its holding on General Statutes § 16-247u(b) which states that "[n]o person shall: (1) knowingly procure, attempt to procure, solicit or conspire with another to procure a telephone record of any resident of this state without the authorization of the customer to whom the record pertains ... (3) receive a telephone record of any resident of this state with the knowledge such record has been obtained without the authorization of the customer to whom the record pertains or by fraudulent, deceptive or false means." The court does, however, strike the plaintiff 's claim for invasion of privacy finding that because she refused to disclose her cell phone records, no actual intrusion occurred. Hellanbrand v. National Waste Associates, LLC, 2008 WL 442136 (Conn. Super.)(Hale, J.T.R.)

TORT LAW - Connecticut courts side with a majority of states enforcing a federal statute that prohibits lessor vicarious liability:

The Graves Amendment, codified at 49 U.S.C. § 30106(a), was enacted on August 10, 2005 and prohibits vicarious liability claims against lessors of automobiles. The state courts of Connecticut have repeatedly upheld this Federal statute and held that it preempts General Statutes § 14-154a which allowed such claims in certain situations. See Axson v. Graham, 2008 WL 711604 (Conn. Super)(Martin, J.); Avelino v. Williams, 2008 WL 2252529 (Conn. Super.)(Elgo, J.). Connecticut Superior Courts have rejected claims made by plaintiffs that the Graves Amendment is an unconstitutional exercise of power under the commerce clause. Id. Neither the Supreme Court nor any federal appellate court has yet addressed whether the Graves Amendment is a constitutional exercise of Congress' commerce power. Several district courts, however, have held that it is. See Berkan v. Penske Truck Leasing Canada, Inc., 535 F.Supp.2d 341 (W.D.N.Y.2008); Jasman v. DTG Operations, Inc., 2008 WL 376774 (W.D.Mich. Feb.13, 2008); Dupuis v. Vanguard Car Rental USA, Inc., 510 F.Supp.2d 980 (M.D.Fla.2007); Seymour v. Pense Truck Leasing Co., 2007 WL 2212609 (S.D.Ga. July 30, 2007). However, one district court and one New York State court have held the amendment unconstitutional. See Vanguard Car Rental USA, Inc. v. Huchon, 532 F.Supp.2d 1371 (S.D.Fla.2007); Graham v. Dunkley, 13 Misc.3d 790, 827 N.Y.S.2d 513 (Sup.Ct.2006). Graham was subsequently reversed by the New York Appellate Division. Thus, Connecticut courts have taken the majority view in finding the Graves Amendment viable.

TORT LAW - The Supreme Court holds that a cat owner may be liable for injury caused by the cat under certain circumstances:

As a matter of first impression, the Connecticut Supreme Court states that when a cat has a propensity to attack other cats, knowledge of that propensity may render the owner liable for injuries to people that foreseeably result from such behavior. The Court concludes that it is reasonably foreseeable that a person would attempt to protect his own cat from being attacked by an abnormally aggressive cat, and that the person could be injured by the abnormally aggressive cat, thereby giving rise to a duty of care to prevent such injuries. Allen v. Cox, 285 Conn. 603 (2008)