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May 2010 Archives

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 plaintiff was 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.

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 non-negligence 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.

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.

It Was Wrong to Preclude Plaintiff's Premises Security Expert

Returning to the Supreme Court for the second time, that court held that the plaintiff's premises security expert should not have been precluded from testifying in this case involving railroad security. Sullivan v. Metro-North Commuter Railroad, 292 Conn. 150 (2009). The preclusion of the expert's testimony was harmful to the plaintiff's case because he was plaintiff's only witness to discuss the crucial issue of foreseeability - an issue that alone dictated the outcome of the case.

How Much Causation Evidence is Enough?

After a century of confusing, conflicting and ambiguous precedent, the Appellate Court tried to answer the question of how much evidence of causation is enough to take it out of the realm of speculation and conjecture. In Burton v. Stamford, 115 Conn. App. 47, cert. denied, 293 Conn. 912 (2009), the court held that , absent an evidentiary basis for a finding of a negligent act that more likely than not caused a plaintiff's injuries, the question of a defendant's negligence is too conjectural and uncertain to warrant submission to a jury. The facts in Burton were as follows: