At issue were the several missed physical therapy appointments (five out of 11) to treat the minor plaintiff Dariyon Drake's Erb's palsy - a condition caused by the defendant's use of excessive traction once a shoulder dystocia was encountered during Dariyon's birth. Lashekas White, Dariyon's mother, testified that she did not take her son to all of his appointments because she did not have transportation.

The first two issue presented on appeal were resolved in favor of the defendants. First, the Appellate Court concluded that evidence of these missed therapy appointments was relevant to the issue of damages. The evidence tended to show that the failure to attend these appointments may have caused a degree of aggravation of Dariyon's injuries. Further, the prejudicial effect of this evidence was outweighed by its probative value. Second, the court held that the evidence was sufficient to warrant a jury charge on mitigation of damages.

However, as to the third issue - the accuracy of the charge itself - the court found in favor of the plaintiff. Specifically, the trial court erred in failing to instruct the jury that it may reduce damages only if it found that the defendant had proven by a preponderance of the evidence that any failure to mitigate damages caused an aggravation of the injury. In other words, the trial court did not adequately explain the relationship between the duty to mitigate and the connection to an aggravation of the injury. The jury must be clearly instructed that it may apply the doctrine of mitigation only to the extent that the defendant has proven that the plaintiff's injuries were increased or aggravated by his own conduct.

On a final note: the court did not address the question of whether evidence of the missed therapy appointments was irrelevant because a parent's failure to mitigate damages could not be imputed to the parent's child.

Facts:

1. Over the Thanksgiving weekend, between the time the jury was impaneled and the commencement of evidence, a newspaper article appeared in the New York Times entitled "Lawsuit Over a Suicide at a Hospital for the Elite."
2. Although the jury had been impaneled at the time the article was published, a judge had not yet instructed the jury to avoid media coverage of the case.
3. Four days later, on November 27, 2007, the first day of evidence, counsel for the plaintiff requested that the court poll the jury as to exposure to the article to determine whether any of the jurors had been unduly influenced thereby.
4. The court denied the request concluding that it would be more prudent simply to instruct the jury to ignore anything in the press or on the media.
5. The jury returned a verdict for the defendants.
6. The plaintiff moved to set aside the verdict, which was denied.
7. The Appellate court reversed the decision of the trial court.

Reasoning:

Article first, § 19, of the constitution of Connecticut, as amended, provides in relevant part: "The right of a trial by jury shall remain inviolate...." Of course, the right to a jury trial would be a mere nullity were it not for the guarantee of jury impartiality. "To ensure that the jury will decide the case free from external influences that might interfere with the exercise of deliberate and unbiased judgment [we previously have held, pursuant to our supervisory authority over the administration of justice, that] a trial court is required to conduct a preliminary inquiry, on the record, whenever it is presented with information tending to indicate the possibility of juror misconduct or partiality." The form and scope of that preliminary inquiry rests within the sound discretion of the trial court. See State v. Merriam, 264 Conn. 617, 672-73 (2003).

Here, none of the safeguards of jury impartiality identified in Merriam were present: 1) at no time prior to publication of the article were the jurors in this case instructed by a judge to avoid media coverage of the ensuing trial; 2) neither parties' counsel had the opportunity to question prospective jurors as to their exposure to the article, as the article had not yet been published at the time of voir dire; 3) the article here was extensive, factually detailed and so overtly inflammatory that it was difficult to conceive how a juror would remain impartial if exposed to its contents; 4) the plaintiff's counsel requested that the court make the specific inquiry into whether any juror had read the article. Indeed, the trial court was unable to address the possibility of jury partiality without inquiring into whether the jury members had even become aware of the article itself.

The court was obligated to conduct a preliminary inquiry to evaluate the extent, if any, of juror bias as caused by exposure to the article. Of course, by the time the court made this ruling, the article had been published, and the possibility that it had already prejudiced jury members could not be cured with a prophylactic instruction. The fact that the court declined to consider fully the request of the plaintiff's counsel to poll the jury in the absence of the parties' agreement in this regard was also improper. "Where, as here, the possibility of jury bias is adequately presented to the court, it is the obligation of the court, not the parties, to determine the appropriate procedures to be employed to ensure the jury is impartial." (Emphasis added.)

Following the guidance of an earlier decision of Judge Scholl in Downs v. Trias, Superior Court, Ct. Sup. 13654 (August 11, 2009), Judge Maronich held that: "[T]he extent of the records for which an authorization is required [pursuant to General Statutes § 52-192a(b)] is to be determined from the language and the purpose of the statute. The requirement that a plaintiff shall 'provide the defendant...with an authorization to disclose medical records follows the requirement that an offer of compromise state with specificity all damages then known to the plaintiff or the plaintiff's attorney upon which the action is based.' Furthermore, it precedes the requirement that the plaintiff file 'a certification that the plaintiff has provided each defendant...with all documentation supporting such damages.' Thus, in the context of the entire statute, the authorization for disclosure of 'medical records' must relate to medical records that support the plaintiff's claimed damages. Therefore the statute requires that, at least sixty days before the filing of an offer of compromise, the Plaintiffs must have provided the Defendants with authorization to obtain medical records that support the damages they claim." (Emphasis added.)

Weth is an action to recover for damages resulting from the wrongful death of the plaintiff's decedent from undiagnosed coronary artery disease. Based on a reasonable application of the statute to the facts of this case, Judge Maronich was "satisfied that the Plaintiffs have provided the Defendants the necessary authorizations such that the defendants have sufficient medical records on which to evaluate the Plaintiffs' offers of compromise."

In Bennett, the plaintiff filed suit against, among others, defendant Dr. Frederick Lohse, a specialist in emergency medicine, but not a board certified emergency medicine physician. The complaint alleged that Lohse failed to diagnose plaintiff's decedent's fractured spine and leg. Pursuant to § 52-190a (a), the plaintiff attached a good faith certificate and a written opinion letter from a board certified general surgeon with added qualifications in surgical critical care who engaged in the practice of trauma surgery. The defendant moved to dismiss the complaint on the ground that the opinion letter was not from a similar health care provider as defined in § 52-184c because its author was not board certified in emergency medicine. The trial court granted the dismissal and the plaintiff appealed. The Appellate Court upheld the trial court's ruling, Bennett v. New Milford Hospital, Inc.,117 Conn. App. 535 (2009), and the Supreme Court granted cert.

Examining the language of the two related statutes §§ 52-190a and 52-184c, the Supreme Court concluded that the text at issue was not ambiguous. Specifically, the court concluded that the "similar health care provider" from whom the plaintiff in this case was required to "obtain a written and signed opinion," was a board certified emergency room physician. In other words, because plaintiff's opinion letter author was not a board certified emergency room physician, he was not a similar health care provider and the opinion letter from him was improper. It was of no consequence that plaintiff's expert would likely have been able to testify at trial regarding the standard of care applicable to defendant Lohse. In reaching this conclusion, the court rejected the plaintiff's argument that this construction yielded an absurd or unworkable result. To the contrary, the court defended the reasonableness of its conclusion by focusing on the need to make the pre-litigation requirements of § 52-190a "definitive and uniform" insofar as they are based on objective criteria, not subject to the exercise of the trial court's discretion.

Further in Bennett, the court concluded that the trial court was required to dismiss the plaintiff's complaint upon determining that a similar health care provider did not author the opinion letter. It reached this determination after finding that the language of § 52-190a was ambiguous, but that the legislative history supported this conclusion. In particular, the court noted that the legislative history establishes that the legislature adopted § 52-190a (c) in order to require mandatory dismissal. Notwithstanding this conclusion, the court noted that "plaintiffs are not without recourse when facing dismissal occasioned by an otherwise minor procedural lapse, like that in this case." This is so because, first, a dismissal under § 52-190a is without prejudice and second, even if the statute of limitations has run, "relief may well be available under the accidental failure of suit statute."

In Plante v. Charlotte Hungerford, Inc., the court considered the circumstances under which the accidental failure of suit statute, § 52-592, may save an otherwise time barred medical malpractice action commenced after dismissal of a prior action pursuant to § 52-190a for failure to attach to the complaint a written opinion letter by a similar health care provider stating that there is evidence of medical negligence.

In Plante, the plaintiff filed suit against, among others, Dr. Eleanor Stutz, a board certified psychiatrist, and Karen Nash, a licensed clinical social worker. In the complaint, the plaintiff alleged that his decedent committed suicide because she was prematurely discharged from the hospital. The defendants moved to dismiss the action on the ground that the plaintiff had failed to attach an opinion letter to the complaint. The plaintiff objected and attached thereto an opinion letter purportedly from an "experienced and qualified health care professional in a similar field." Plaintiff's counsel represented that this opinion letter had not been attached to the original complaint due to a "simple mistake." Defendant's motion to dismiss was granted and the plaintiff brought suit under § 52-592. Attached to the second complaint was an opinion letter from a board certified psychiatrist. The trial of this matter was bifurcated, with the first part of the claim to be tried to the court being the question of whether the action was saved by § 52-592. After hearing from the registered nurse who had authored the opinion letter in the initial action, as well as plaintiff's counsel, the trial court concluded that: 1) counsel had the opinion at the time the initial action was filed; 2) but that the registered nurse who authored that letter was not a "similar health care provider" to any of the defendants; and 3) that this opinion was "worthless as the opinion of a similar health care provider." The trial court then concluded that the deficiency under § 52-190a was not a "matter of form" entitling the plaintiff to bring a new suit under § 52-592. "The plaintiff's lack of diligence in selecting an appropriate person or persons to review the case for malpractice can only be characterized as blatant and egregious conduct." This latter factual finding by the trial court was not challenged on appeal.

In Plante, the Supreme Court reasoned as follows: 1) a plaintiff's failure to comply with the requirements of § 52-190a (a) does not destroy the court's subject matter jurisdiction over the claim of medical malpractice; 2) accordingly, any relief for a plaintiff under § 52-592 must lie under the "matter of form" provision of that statute; 3) the use of the phrase "matter of form" is ambiguous so extratextual sources may be considered; 4) a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was a matter of form in the sense that it was due to a good faith mistake, inadvertence or excusable neglect. In other words, only egregious conduct by an attorney or party precludes resort to § 52-592 (a); 5) therefore, the factual determination regarding whether there was "egregious" conduct in any given case requires consideration of the qualifications of the opinion letter's author. "Indeed, that the opinion letter author might well be qualified to testify at the trial of the action pursuant to § 52-184c (d), regardless of the fact that he or she is not a 'similar health care provider' as strictly defined by § 52-184c (b) or (c)...is one such factor that a trial court reasonably might consider in making the factual determinations attendant to a plaintiff's invocation of the protections of § 52-592 (a)."

"Thus, we conclude that a plaintiff may bring a subsequent medical malpractice action pursuant to the 'matter of form' provision of § 52-592 (a) only when the trial court finds as a matter of fact that the failure in the first action to provide an opinion letter that satisfies § 52-190a (a) was the result of mistake, inadvertence or excusable neglect, rather than egregious conduct or gross negligence on the part of the plaintiff or his attorney."

In Plante, given the unchallenged finding of the trial court that the plaintiff's actions were "blatant and egregious," the Supreme Court agreed with the defendants that the plaintiff was not permitted to bring a new action under § 52-592 following dismissal of the initial claim.

Facts: The plaintiff, Eric Klein, a dentist, was in the hospital for an emergency appendectomy. In the post-op period, he needed intravenous antibiotics. On March 3, 2003, Patricia DePaoli, a nurse employed by the defendant Norwalk Hospital, determined that the existing IV line needed changing. She began to replace the existing line in Klein's left hand with a new line farther up his arm. During the procedure, Klein shouted out in pain several times. After DePaoli's third failed attempt, Klein's whole left hand went dead and he told her to remove the needle. Klein's father, Morton, witnessed the entire event. After Klein's release he was diagnosed with anterior interosseous nerve palsy caused by an improper attempted intravenous line insertion. Klein's injury had a negative impact on his dental practice and overall quality of life.

On Jan 11, 2006, the plaintiff disclosed Dr. Gevirtz, an anesthesiologist specializing in pain management, as his expert. According to the disclosure, Gevirtz was to testify on matters concerning the standard of care, causation and damages. The plaintiff's theory of negligence was that DePaoli departed from the standard of care in placing the IV line and that this caused Klein's injuries.

The defendant then disclosed Dr. Strauch, an orthopedic surgeon, to testify that the plaintiff's injury was caused by a condition called Parsonage Turner Syndrome (PST). Gevirtz was not specifically disclosed as an expert on PTS, nor was it disclosed that he would testify about the disease. During his direct examination of Gevirtz, plaintiff's counsel asked him if he was familiar with PTS. The trial court sustained the defendant's objection to this question on the ground that the plaintiff's disclosure of Gevirtz did not encompass his testifying about the syndrome. In a proffer, plaintiff's counsel established that Gevirtz would have described PTS, established his familiarity with it and stated his opinion that the syndrome was not the cause of Klein's injury and explained the basis for that conclusion.

Later in the trial, defense counsel called Strauch to testify on standard of care & causation. At plaintiff's counsel's request, the trial court conducted a Porter hearing to determine what scientific methodology would allow Strauch to diagnose - without an examination - Klein's injury as being caused by PTS. The court allowed Strauch to testify, on the basis of his review of Klein's medical records and deposition testimony that the plaintiff's condition was caused by PTS.

The case was submitted to the jury with interrogatories. The first one asked whether the plaintiff had proven by a preponderance of the evidence that the defendant had breached the standard of care in any way stated in the complaint in her care and treatment of Klein. The jury answered this interrogatory in the negative.

In its decision, affirming the defense verdict, the Appellate Court did not reach the evidentiary issues raised by the plaintiff because it found that any claimed impropriety was harmless.

Supreme Court Decision:

Causation - The plaintiff's disclosure of Gevirtz on the issue of causation was sufficient to permit him to testify that PTS was not the cause of Klein's injury. "Insofar as the plaintiff's disclosure of Gevirtz made clear that he would testify as to what was the cause of the plaintiff's alleged injury, the disclosure implicitly indicated that Gervitz [sic] also could be expected to testify about what was not the cause of the plaintiff's alleged injury. 'Critical to establishing specific causation is exclusion of other possible causes of symptoms.'...As this court recently acknowledged, 'differential diagnosis is a method of diagnosis that involves a determination of which of a variety of possible conditions is the probable cause of an individual's symptoms, often by a process of elimination. In the present case, Gevirtz was permitted to testify that, in his expert opinion, the plaintiff's alleged injury 'can only happen as a result of negligence as a result of deviating from the standard of care.' To the extent that this conclusion was the result of Gevirtz' differential diagnosis, it necessarily was based on his consideration and elimination of the other possible causes for the alleged injury, including the theory of causation advanced by the defendant. This court never has articulated a requirement that a disclosure include an exhaustive list of each specific topic or condition to which an expert might testify as the basis for his diagnosis; disclosing a categorical topic such as 'causation' generally is sufficient to indicate that testimony may encompass those issues, both considered and eliminated, necessary to explain conclusions within that category." (Italics in original.)

"A disclosure generally complies with the requirements of Practice Book § 13-4 (4) so long as it adequately alerts the defendant to the basic nature of the plaintiff's case." There was no need for the plaintiff to file a supplemental disclosure.

Harm - Although the court acknowledged some recent confusion concerning the standard of harmfulness in a civil case, it took this opportunity to clarify the standard. An evidentiary ruling will result in a new trial only if the ruling was harmful. An evidentiary impropriety in a civil case is harmless only if "we have a fair assurance that it did not affect the jury's verdict. A determination of harm requires us to evaluate the effect of the evidentiary impropriety in the context of the totality of the evidence adduced at trial." Herein, the court concluded that there was "no fair assurance that the evidentiary impropriety did not affect the jury's verdict because the improperly excluded testimony was essential to the central issue in this case and was not wholly cumulative of other testimony or evidence."

The issue of breach of the standard of care was essential to the case, as it was wholly dispositive of the outcome. The court rejected the defense argument that Gevirtz' excluded testimony dealt only with the question of causation and that, therefore, the excluded testimony was irrelevant. The basis for the court's rejection of this argument was that it "fail[ed]...to account for the nature of a differential diagnosis....Because the present case essentially presented a choice as to the causation of the plaintiff's alleged injury between the defendant's theory of Parsonage Turner Syndrome and the plaintiff's theory of an intravenous needle stick, breach of the standard of care and causation were intertwined not only in Gevirtz' differential diagnosis, but also in the framing of the case generally. The determination of whether the defendant had breached the standard of care could be reduced to the question of what caused the plaintiff's alleged injury, and the only possible causes presented to the jury were Parsonage Turner Syndrome or the defendant's alleged breach of the standard of care. Consequently, whether Parsonage Turner Syndrome could have caused the plaintiff's alleged injury was therefore central to the question of not only causation, but breach as well."

The court also noted that, "it is significant, in our view, to consider that Gevirtz' excluded testimony also would have aided in establishing his credibility as an expert and the reliability of his ultimate conclusions in the eyes of the jury. In other words, but for the trial court's improper exclusion, Gevirtz could have explained not only that he had rejected the defense theory of Parsonage Turner Syndrome as a cause, but also why he had done so."

Porter: Finally, the court addressed the Porter issue raised by the plaintiff because it was likely to arise on retrial. That issue concerned a claim that the trial court improperly admitted expert testimony by Strauch, regarding the cause of Klein's injury. Strauch was permitted to testify, solely on the basis of his review of the plaintiff's medical records and deposition testimony, that the plaintiff's injury had been caused by Parsonage Turner Syndrome. The plaintiff contended that, under State v. Porter, 241 Conn. 57 (1997), cert. denied, 523 U.S. 1058 (1998), the defendant did not sufficiently demonstrate that Strauch's opinion was based on reliable methodology. The Supreme Court concluded that the trial court's admission of that portion of Strauch's testimony was improper.

During the plaintiff's voir dire of Strauch at the Porter hearing, Strauch acknowledged that diagnosis by review of medical records would not be his normal method of diagnosis, that the only peer review of the method he used was a single article that considered diagnoses made both by examination and by consideration of medical records, and that he could not speculate as to the rate of error in diagnoses by this method.

The Supreme Court concluded that, although the trial court conducted a Porter hearing to consider the admissibility of Strauch's testimony, the defendant did not demonstrate at the hearing the reliability of the methodology upon which Strauch relied. "Notably, the defendant made no showing that Strauch's methodology had been subjected to peer review, nor was Strauch able to identify a likely rate of error for his chosen methodology. While neither of these determinations is a talismanic requirement for satisfaction of the Porter requirements, their absence is, in this case, determinative of the inadequacy of the defendant's proof of the methodology's reliability...Without these or any other meaningful indicia of reliability, Strauch's conclusion was without basis in an assuredly reliable methodology; without any stated support for its reliability other than his own personal expertise, it was nothing more than his ipse dixit."

In this case, the plaintiff had sued the defendant, a professional engineer, alleging breach of contract and negligence claims. The underlying dispute arose out of the defendant's providing an environmental site assessment of certain property the plaintiff was anticipating purchasing. Before the plaintiff could get financing for the purchase of and improvement to the property, it needed to determine that the property was not an "establishment" as that term is defined under the Connecticut Transfer Act, because an establishment is a parcel of real property that has been polluted. The defendant incorrectly certified that the property was not an establishment.

The Supreme Court clarified the following: 1) in order to come within the purview of § 52-584a, it is not necessary that the plaintiff establish that the defendant's services constituted "professional engineering services;" and 2) the definition of "improvement to real property." The court concluded that it was a jury question in this case whether the defendant's services were performed in connection with an improvement to real property and whether the monitoring wells dug by the defendant constituted an improvement to property within the meaning of the statute.

In an action brought against a municipality pursuant to General Statutes § 52-572n alleging negligence, the town often files a motion to strike on the ground of governmental immunity. The following decision tree demonstrates the analysis that must be applied in these situations:

1. GENERAL PRINCIPLES
   1. Common-law: A municipal employee is liable for the misperformance of ministerial acts, but has a qualified immunity in the performance of governmental acts.
   2. General Statutes § 52-557n embodies the common law and provides that: A municipality shall be liable for damages caused by the negligence of the municipality, its agents, officers and employees, except when the negligent act or omission requires "the exercise of judgment or discretion..."
2. THREE EXCEPTIONS TO DISCRETIONARY ACT IMMUNITY
   1. Liability may be imposed for a discretionary act when the alleged conduct involves malice, wantonness or intent to injure.
   2. Liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or its official for failure to enforce certain laws.
   3. Liability may be imposed when the circumstances make it apparent to the public officer that his failure to act would be likely to subject an identifiable person to imminent harm.
3. AS TO THE THIRD EXCEPTION ABOVE
   1. The identifiable person/imminent harm exception has been applied only when the following three elements are all established:
      1. An imminent harm;
      2. An identifiable victim;
      3. A public official to whom it is apparent that his conduct is likely to subject that victim to that harm.
   2. Note that, with respect to the "identifiable victim" element, this element is fulfilled if the plaintiff can prove either
      1. That he was an identifiable individual, or
      2. That he came within a narrowly defined identifiable class of foreseeable victims. In delineating the scope of a foreseeable class of victims exception to governmental immunity, the courts consider numerous criteria including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim.
         1. Note that the only identifiable class of foreseeable victims the Supreme Court has ever recognized was that of schoolchildren attending public schools during school hours.
         2. Whether a particular plaintiff comes within a cognizable class of foreseeable victims for purposes of this exception is ultimately a question of policy.

In Merritt, the decedent was shot and killed by gang members around 1:40 am in the parking lot of the Masonic Temple in Bethel, after they all had attended a party there. The Bethel police department had been previously alerted to the fact that criminal activity had taken place that evening, that a scuffle had broken out at the party and that gang members were present. At the time of the shooting, two Bethel police officers were stationed in the parking lot adjacent to the temple where they were monitoring the activities taking place at the party. After hearing gunshots, the officers responded and found the decedent severely injured. He later died as a result of those injuries.

Because the plaintiff did not allege that the decedent was statutorily mandated or compelled to attend the party at the Masonic Temple, the decedent was not a member of a narrowly defined class of foreseeable victims. Nor was the decedent himself an identifiable person subject to imminent harm. The only case in which our courts have recognized that a plaintiff was potentially an identifiable victim subject to imminent harm was a case in which a police officer watched an ongoing brawl in bar parking lot but did not intervene until one participant had shot and killed the plaintiff. An allegedly identifiable person must be identifiable as a potential victim of a specific imminent harm. The court held that nothing in Merritt demonstrated that the police knew the decedent, knew he was present at the party or that they had any prescient knowledge that he would be shot.

THE LAW: An agent's authority may be actual or apparent. Apparent authority is that semblance of authority which a principal, through his own act or inadvertences, causes or allows third persons to believe his agent possesses. Consequently, apparent authority is to be determined, not by the agent's own acts, but by the acts of the agent's principal. The issue of apparent authority is one of fact to be determined based on two criteria: 1) it must appear from the principal's conduct that the principal held the agent out as possessing sufficient authority to embrace the act in question, or knowingly permitted the agent to act as having such authority; 2) the party dealing with the agent must have, acting in good faith, reasonably believed, under all the circumstances, that the agent had the necessary authority to bind the principal to the agent's action. Resolution of the factual issue of apparent authority requires the trier of fact to evaluate the conduct of the parties in light of all the surrounding circumstances.

In Fisher, the plaintiff slipped and fell in a grocery store. The cause of plaintiff's fall was a puddle of what appeared to be fruit cocktail juice on the floor of the aisle where this food was sold. The plaintiff proceeded to trial only under the mode of operation theory. The trial court (McWeeny, J.) charged the jury in accordance with the standard jury instructions designed to reflect this rule. Specifically, the court charged the jury as follows: "The plaintiff has alleged that his injuries were caused by the mode by which the defendant operated the business, in particular, by the way the defendant designed, constructed or maintained its self-service supermarket." In other words, the trial court held that the mode of operation rule "was generally available for premises liability claims in self-service stores." According to the trial court, the mode of operation charge was appropriate because the jury could reasonably conclude that the spilled liquid on which the plaintiff fell was spilled from a food container and dropped to the floor, as a result of the self-service nature of the defendant's operation.

The Supreme Court in Fisher clarified that the mode of operation rule, as adopted in Connecticut, does not apply generally to all accidents caused by transitory hazards in self-service retail establishments, but rather, only to those accidents that result from particular hazards that occur regularly, or are inherently foreseeable, due to some specific method of operation employed on the premises.

Typically, under traditional premises liability doctrine, for a plaintiff to recover for the breach of a duty owed to him as a business invitee, it is incumbent upon him to allege and prove that the defendant either had actual notice of the presence of the specific unsafe condition which caused his injury or constructive notice of it. The notice, whether actual or constructive, must be notice of the very defect which occasioned the injury and not merely of the conditions naturally productive of that defect even though subsequently in fact producing it. In the absence of allegations and proof of any facts that would give rise to an enhanced duty, a defendant is held to the duty of protecting its business invitees from known, foreseeable dangers.

Facts:

1. The plaintiff brought an action against Middletown on behalf of her then minor son, Jasmon Vereen, for personal injuries he suffered as a result of a fellow student pushing him into a locker in the boys' locker room at Middletown high school.
2. The incident occurred on March 15, 2005, after gym class while the boys were changing back into their street clothes. The boys started to engage in horseplay, swinging each other around and trying to throw each other to the ground. Jasmon was pushed into a broken locker with a jagged, rusty edge that had been in that condition since the fall of 2004.
3. The complaint alleged that the defendant and its agents, servants or employees were negligent and that the action was being brought pursuant to General Statues § 52-557n.
4. The defendant denied the plaintiff's allegations of negligence and pleaded special defenses of governmental immunity and comparative negligence.
5. The plaintiff replied to the defendant's special defenses with a general denial.
6. At the close of the plaintiff's case, the defendant moved for a directed verdict on the basis of governmental immunity. In the course of oral argument on the motion, the plaintiff's counsel conceded that the defendant's acts were discretionary, but argued that the identifiable person, imminent harm exception applied. The trial court reserved judgment.
7. The case was then tried to the jury, which rendered a plaintiff's verdict in the amount of $30,000, reduced by 33% comparative negligence. The trial court's charge, as well as the jury interrogatories, were silent on both the defense of governmental immunity and the identifiable person, imminent harm exception. Neither party requested these charges, nor were exceptions taken to the charge as given.
8. Thereafter, the trial court granted the defendant's motion to set aside the verdict and rendered judgment in its favor based on the court's conclusion that "governmental immunity insulated the [defendant] from the claim and verdict in this case."
9. The plaintiff appealed from the judgment of the trial court granting the defendant's motion to set aside the jury verdict.
10. The Appellate Court concluded that the trial court had properly set aside the jury verdict as against the law, albeit for a different reason than that articulated by the trial court. Specifically, the Appellate Court concluded that the plaintiff's verdict should be set aside because "the defendant specially pleaded and proved that it was entitled to governmental immunity, but the plaintiff[] failed to plead an exception to discretionary act immunity under Section 52-557n (a) (2) (B) in [his] reply to the defendant's special defense."

Reasoning:

The general rule is that governments and their agents are immune from liability for acts conducted in the performance of their official duties. The common-law doctrine of governmental immunity has been statutorily enacted and is now largely codified in General Statues § 52-557n. The statute sets forth the circumstances under which a municipality will be held liable for damages to a person and also specifies two exceptions to the statutory abrogation of governmental immunity. The exception relevant to this appeal was that found in § 52-557n (a) (2) (B), i.e. for discretionary acts. Because the plaintiff had conceded that the defendant's actions were discretionary, the doctrine of governmental immunity would have barred the plaintiff's claims unless an exception to governmental immunity were applicable. The only exception claimed to be applicable was the identifiable victim, imminent harm exception. Accordingly, the Appellate Court held that the plaintiff could prevail on his claim only by pleading and proving the sole relevant exception to discretionary act immunity. However, since the plaintiff filed a general denial (and never moved to amend his reply) to the defendant's special defense of governmental immunity, the plaintiff "never made the applicability of the identifiable victim, imminent harm exception to discretionary act immunity a legal issue in the case...Without a jury finding that the defendant's negligence subjected the plaintiff to imminent harm, the plaintiff could not legally prevail on his negligence claim." A "[m]atter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply....." Practice Book § 10-57. Therefore, the plaintiff was not entitled to judgment in his favor, and the trial court properly set aside the same.

Practice Note:

1. Note that neither the parties, nor the trial court raised the pleading issue that formed the basis of Judge Alvord's decision.
2. Further note that, in Grady v. Somers, 294 Conn. 324 (2009), the Supreme Court held that the common-law identifiable person, imminent harm exception applies to the discretionary act immunity provided to municipalities in an action brought solely against a municipality pursuant to § 52-557n (a).

Facts:

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.

Reasoning:

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.).)