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Wednesday, June 16, 2010

Sewage Backup Into Home from City Main Is Not a Public Nuisance

General Statutes § 52-584, not § 52-577, is the applicable statute of limitations barring nuisance claims arising out of negligence.  The plain language of § 52-584 makes it applicable to actions “to recover damages for injury to…real or personal property, caused by negligence….”  Since the plaintiffs’ claim for private nuisance in Sinotte v. Waterbury, 121 Conn. App. 420 (2010), was clearly predicated on negligence (the allegations of the negligence count were incorporated into the private nuisance count), the two and three year limitations in § 52-584 applied herein.


  1. The plaintiffs, Delores and Brian Sinotte, purchased their home, located at 82 Old Colony Drive in Waterbury, in October, 1971.
  2. It was a single family, ranch with a finished basement that consisted of a family room, laundry room and bathroom.
  3. The home was serviced by the defendant’s sanitary sewer.
  4. On June 17, 2001, the plaintiffs experienced a serious sewage backup into their basement. (Between 1974 and June 17, 2001, other various backups had occurred.)
  5. The next day, on June 18, 2001, Delores Sinotte called the defendant and provided it with notice of the incident; also on June 18, 2001, the plaintiffs filed a claim under their homeowners’ insurance policy for the losses they had sustained as a result of the backup.
  6. On December 11, 2001, Delores Sinotte sent the defendant a letter in which she detailed the plaintiffs’ claim for losses due to the June 17, 2001, backup.
  7. On June 28, 2004, Delores Sinotte sent the defendant another letter demanding that the defendant pay the plaintiffs’ claim regarding the June 17, 2001, incident and further stating her intention to sue the defendant if it did not.
  8. On August 27, 2004, i.e. more than three years after the date of the June 17, 2001, sewage backup, the plaintiffs commenced this action against the defendant for injuries arising out of this incident only.
  9. The plaintiffs’ action attempted to state claims sounding in negligence, trespass, private nuisance, public nuisance, inverse condemnation and negligent infliction of emotional distress.  The first count claimed that the defendant was negligent in its construction and maintenance of the sewer system.  These allegations were incorporated into each of the other counts.  The plaintiffs sought monetary damages for the diminution of the value of their property and for emotional distress.
  10. The trial court first concluded that the plaintiffs’ tort claims were barred by the statute of limitations and the inverse condemnation claim failed because their property retained economic value and its use as a residence had not been substantially destroyed.
  11. Upon a motion for reconsideration, the trial court construed the plaintiffs’ action differently than it had previously and held that the action alleged conditions that constituted a permanent private nuisance. As such, it found that the action was timely filed because the nuisance did not become permanent until February 25, 2002, the date the defendant began to keep detailed records of its periodic cleaning and maintenance of the sewer servicing the plaintiffs’ neighborhood.
  12. Both parties appealed; the Appellate Court reversed the trial court and directed judgment for the defendant.


Because the plaintiffs did not allege any incursion of sewage into or onto their property later than June 17, 2001, this was the latest date of actionable harm pleaded. Therefore, the plaintiffs’ claim of private nuisance must have been commenced within two years of this date.  Since the evidence was clear that the plaintiffs had notice of the defendant’s wrongful conduct on this date, their action was not timely commenced.

The continuing course of conduct doctrine did not toll the running of the statute of limitations on the plaintiffs’ negligence, trespass and negligent infliction of emotional distress claims because there was no evidence of the breach of a duty that remained in existence after commission of the original related wrong.  In other words, there was neither a special relationship between the parties, nor some later wrongful conduct related to the prior act.

The Appellate Court further held that the plaintiffs had failed to allege claims of public nuisance and inverse condemnation.  See the decision for a statement of the elements of these claims.

Practice Note:

1.Note that this is the first case in which an appellate court has describe a doctor-patient relationship as a “special relationship” in the context of the continuing course of conduct tolling doctrine. (“Additionally, there was no special relationship between the plaintiffs and the defendant such as exists between an attorney and his client or a doctor and her patient,” Sinotte, 440-41 (Emphasis added.).)

posted by Carey Reilly at 3:11 PM

Wednesday, May 26, 2010

Victim Not Sufficiently Identifiable to Avoid Governmental Immunity Defense

The Supreme Court held that the doctrine of governmental immunity applied to shield the defendants from liability for the alleged injuries of the plaintiff.  The plaintiff acknowledged that the defendants’ conduct was discretionary, so the former could prevail only if he fell within one of the recognized exceptions to the doctrine.  The court concluded that the plaintiff in Cotto v. Board of Education, 294 Conn. 265 (2009) was not an identifiable person subject to imminent harm because the potential for harm to him was neither sufficiently immediate nor sufficiently certain.  In other words, the risk of specific harm to the plaintiffwas not sufficiently immediate because any person using the bathroom could have slipped at any time.  Thus, it was not apparent to the defendants that their failure to act would likely subject the plaintiff, as an identifiable person, to imminent harm.


  1. In 1999, the plaintiff, Jamell Woods Cotto, was working as the director of a summer youth program at the Roberto Clemente School, one of New Haven’s public schools.
  2. On June 16, 1999, at approximately 9:45 am, the plaintiff went into one of the bathrooms in the school to look for two program participants (7 and 8 years old). Upon entering the bathroom, Cotto slipped on water and urine that were on the floor. He fell and sustained injuries.
  3. Cotto filed a complaint against the defendants – the board of education of the city and certain public school officials.
  4. The defendants answered and asserted several special defenses including comparative negligence and common-law and statutory governmental immunity pursuant to General Statutes § 52-557n.
  5. The case was tried to the court, which found in favor of the plaintiff. As to the defense of governmental immunity, the trial court specifically found that “the plaintiff was an identifiable individual subject to imminent harm for purposes of the exception to the governmental immunity doctrine.”
  6. The Supreme Court reversed the decision of the trial court.


The common-law and statutory doctrines that determine the tort liability of municipal employees are well established.  Generally, a municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts.  Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature.  A municipal employee's immunity for the performance of discretionary governmental acts is, however, qualified by three recognized exceptions:  1) where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm; 2) where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws; and, 3) where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.

The first exception, by its own terms, requires three things:  1) an imminent harm; 2) an identifiable victim; and, 3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm.  Failure to establish any one of the three prongs will be fatal to a plaintiff's claim that he comes within this exception.  The identifiable person-imminent harm exception applies to narrowly defined classes of foreseeable victims as well as identifiable individuals.

Note that the second prong has been expanded to apply not only to identifiable individuals but also to narrowly defined classes of foreseeable victims. Thus far, the only identifiable class of foreseeable victims that our appellate courts have recognized for these purposes is that of schoolchildren attending public schools during school hours.

An individual may be "identifiable" for purposes of the exception to qualified governmental immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition.  For the harm to be deemed imminent, the potential for harm must be sufficiently immediate.  In fact, "the criteria of identifiable person and imminent harm must be evaluated with reference to each other.  An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm.  Likewise, the alleged imminent harm must be imminent in terms of its impact on a specific identifiable person….For the purposes of the imminent harm exception…it is impossible to be an identifiable person in the absence of any corresponding imminent harm.”  Our appellate courts have found imminent harm only in the clearest of cases.

posted by Carey Reilly at 11:35 AM

Wednesday, May 19, 2010

Time Doesn't Stop Running for Intentional Emotional Distress Claim

The existence of an original duty must be determined before applying the continuing course of conduct doctrine to toll the statute of limitations in a nonnegligence cause of action for intentional infliction of emotional distress.  In Watts v. Chittenden, 115 Conn. App. 404, cert. granted, 293 Conn. 932 (2009), the Appellate Court held that there was no such duty.  It was insufficient to rely merely on the existence of a relationship between the parents of minor children to support the application of the continuing course of conduct doctrine.


  1. The plaintiff, John Watts, was the former spouse of the defendant, Heather Chittenden.
  2. They were married in 1993 and had two daughters, born in 1995 and 1996.
  3. The defendant filed for dissolution in March, 1999.
  4. On June 3, 1999, the defendant reported to the department of children and families (department) that one of her daughters had been sexually abused by the plaintiff. On July 1, 1999, an investigation into this claim was concluded in the absence of any evidence to suggest that the plaintiff was abusing his daughter.
  5. On July 21, 1999, the defendant made a similar report of abuse. The investigation stemming from this complaint was similarly closed on January 11, 2000.
  6. On January 19, 2000, the department received another report of abuse; the police eventually concluded that there was no evidence to support this complaint either.  But the police concluded that there was substantial evidence that the defendant had sexually abused her two daughters.
  7. On April 11, 2002, the defendant pleaded guilty, as part of a plea agreement, to falsely reporting an incident and attempt to commit malicious prosecution.
  8. Following her guilty plea, the defendant made repeated accusations in 2004 and 2006 to family therapists regarding the plaintiff’s continued sexual abuse of his daughters.
  9. On August, 29, 2005, the plaintiff filed a one count complaint sounding in intentional infliction of emotional distress.
  10. The defendant filed an answer and special defense claiming that the action was time barred under the statute of limitations.
  11. At trial, the court found in favor of the plaintiff; the defendant appealed.
  12. The Supreme Court has granted the plaintiff’s petition for certification.


The three year tort statute of limitations contained in General Statutes §52-577 commences to run on the date of the act or omission complained of, not the date when the plaintiff first discovers an injury.  In Watts v. Chittenden, the trial court found that the statute of limitations was tolled by virtue of the defendant’s continuing course of conduct and did not begin to run until the defendant admitted on April 11, 2002, that her accusations of sexual abuse against the plaintiff were false.  The Appellate Court reversed the decision of the trial court.

To support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto.  That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong.  Our Supreme Court has specifically stated:  "Where we have upheld a finding that a duty continued to exist after the cessation of the 'act or omission' relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act."

The Appellate Court in Watts v. Chittenden stated that the application of the continuing course of conduct doctrine was necessarily premised on the existence of a duty that was in effect at the time of the original wrong.  The plaintiff’s counsel argued that a finding of an initial duty did not apply in this case, which alleged the nonnegligence cause of action for intentional infliction of emotional distress.  Unclear whether it was referring to the original or continuing duty, the Appellate Court simply concluded that there was no authority to support a finding for recognizing a duty that arises only from the existence of a relationship between the parties as parents of minor children.

Practice Notes:

  1. The continuing course of conduct – and any other tolling doctrines – must be pleaded in avoidance to a statute of limitations defense.
  2. Note that Judge Lavine argues for a more flexible and broader application of the continuing course of conduct doctrine in cases involving ongoing abusive relationships.
  3. The court also held that the defendant’s statements made to a family therapist during court-ordered therapy sessions were not considered absolutely privileged.

posted by Carey Reilly at 12:19 PM

Monday, May 17, 2010

Intervening Employer Gets His Money Back No Matter What

In a case of first impression, the Supreme Court held that the trial court properly reduced the amount of the jury award of noneconomic damages by the amount of payments the plaintiff’s employer was obligated to pay him, despite the fact that the employer was paying for economic losses.  Cruz v. Montanez, 294 Conn. 357 (2009).  General Statutes § 31-293 (a) expressly provides that an employer’s claim for reimbursement of workers’ compensation benefits takes precedence over any damages that an injured employee receives in a third party action.  Further, the court held that when an injured employee who has received workers' compensation brings an action against a third party tortfeasor, and both the employee and the employer are parties plaintiff, the jury should not be told the amount of the employer's obligation for workers' compensation.


  1. The plaintiff, Anastacio Cruz, filed this third party negligence lawsuit against Francisco Montanez and Jason Kannon pursuant to General Statutes § 31-293 (a) seeking to recover for injuries Cruz suffered in a motor vehicle accident that occurred in the course of his employment.
  2. Montanez was Cruz’ fellow employee and the driver of the pickup truck in which Cruz was riding as a passenger at the time of the accident. Both men were employed by the defendant Weston Gardens, Inc.
  3. Kannon was the driver of the other motor vehicle involved in the collision.
  4. Cruz collected workers’ compensation benefits from Weston Gardens in the amount of $26,090.96.
  5. The defendant Weston Gardens intervened as a plaintiff seeking reimbursement for its workers’ compensation payments to Cruz from any damages that Cruz recovered from Montanez and Kannon.
  6. Cruz elected not to present any evidence of economic damages.
  7. Consequently, the jury awarded Cruz $75,000 in noneconomic damages only, and concluded that Montanez and Kannon were 60% and 40% responsible, respectively, for Cruz’ injuries.
  8. The trial court rendered judgment apportioning the damages to Weston Gardens in the amount of its workers’ compensation payments to Cruz, with the remainder payable to Cruz.
  9. On appeal, Cruz claimed, among other things, that the trial court erred in reducing the amount of the jury award by the payments he had received from Weston Gardens in workers’ compensation benefits because those payments were for economic damages and Cruz had sought and recovered only noneconomic damages.
  10. The Supreme Court affirmed the decision of the trial court.


Pursuant to General Statutes § 31-293 (a), an employer has the right of reimbursement from a judgment against a third party for 1) the amount of any compensation which the employer has paid on account of the injury which is the subject of the suit, plus 2) an amount equal to the present worth of any probable future payments which he has become obligated to pay.

Pursuant to § 31-293 (a), an employer that pays workers’ compensation benefits to an injured employee is entitled to reimbursement for those payments from “any damages” that the employee may recover from the third party tortfeasor.  “Any damages” in this context means damages of “whatever kind or sort, without limitation.”  The Supreme Court concluded that it was of no consequence that the jury’s award of damages in this case was for noneconomic damages.

One of the primary goals of § 31-293a is to ensure that the ultimate loss falls on the wrongdoer by allowing the employer to take action in order to recover the workers’ compensation benefits that it was legally obligated to pay to its injured employee.  It is equally as elementary that the claimant should not be allowed to keep the entire amount of his compensation award and the common-law damage recovery.  Furthermore, Cruz could have elected to seek recovery for his economic losses, but chose not to do so.

In arriving at its conclusion, the court rejected the plaintiff’s argument that the employer had to seek reimbursement directly from the third party tortfeasor, either in a separate action or in the context of the employee’s action.

Practice Note:

1.When presenting a third party action pursuant to § 31-293a, present claims for all possible losses, economic and noneconomic, because the court will reduce any jury award by the amount the intervening employer is obligated to pay.

posted by Carey Reilly at 11:34 AM

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