Carey’s Case Review

Carey’s Case Review

Wednesday, November 3, 2010

In Hogan v. Lagosz, 124 Conn App. 602 (2010) (October 26, 2010), the Appellate Court reiterated the rules of apparent authority in this action to enforce a settlement agreement signed by the defendant’s attorney.  The defendant argued on appeal that the trial court had improperly concluded that her lawyer possessed apparent authority to act on her behalf.  The Appellate Court affirmed the decision of the trial court, holding that the lower court properly concluded that the defendant by her conduct, interpreted in light of the surrounding circumstances, caused the belief on the part of the plaintiff that the attorney had the requisite authority to sign the agreement on her behalf.

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.

posted by Carey Reilly at 11:59 AM

Thursday, October 21, 2010

In the landmark decision Kelly v. Stop & Shop, 281 Conn. 768 (2007), the Supreme Court adopted the “mode of operation” rule, an exception to the traditional premises liability doctrine, which dispenses with the requirement that a plaintiff prove that a business had actual or constructive notice of the specific unsafe condition giving rise to the plaintiff’s injury.  Pursuant to the rule, a plaintiff establishes a prima facie case of negligence upon presentation of evidence that the mode of operation of the defendant’s business gives rise to a foreseeable risk of injury to customers and that the plaintiff’s injury was proximately caused by an accident within the zone of risk. In Fisher v. Big Y Foods, Inc., 298 Conn. 414 (2010), the high court was faced with deciding what facts and circumstances give rise to a plaintiff’s right to recover under this rule.

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.

posted by Carey Reilly at 4:11 PM

Tuesday, September 7, 2010

In DiLieto v. County Obstetrics and Gynecology Group, P.C., 297 Conn. 105 (2010), the Court examined offer of compromise interest.  In DiLieto, after several appeals and two trials – the second one resulting in a plaintiff’s verdict of over $5 million, the case returned to the Supreme Court for the final time.  After reviewing the sufficiency of the evidence in many respects, the Court turned to an interesting question of first impression, i.e. whether interest could be calculated on an offer of compromise (formerly known as “offer of judgment”) filed by a plaintiff who lacked the legal authority to do so.  The problem was that DiLieto mistakenly had filed an invalid offer of compromise (for $1.5 million) within 18 months of her having commenced the action in 1997; when it should have been filed by her trustee in bankruptcy.  Once it was brought to DiLieto’s attention that she lacked standing to bring the action, in January, 2000, her trustee was substituted as plaintiff pursuant to the highly remedial C.G.S. § 52-109, which allows a court to substitute a plaintiff in an action mistakenly begun by the wrong person.  However, once substituted, the trustee did not file a new offer of compromise.  After delving into the policy and the language of this statute, as well as the offer of compromise statute, C.G.S. § 52-192a, the court concluded that interest should run from the date the trustee was substituted, not the date the action was commenced.  To avoid any possible confusion in future cases, however, the Supreme Court stated “a party that is substituted as a plaintiff under § 52-109 shall either repudiate the original offer of judgment upon substitution, refile that original offer of judgment, or file a new offer of judgment, at that substituted plaintiff’s discretion.”

posted by Carey Reilly at 2:37 PM

Tuesday, June 29, 2010

In Governmental Immunity cases, the Appellate Court set forth a new rule of procedure:  In the reply to a special defense of governmental immunity, the plaintiff must now plead as a matter in avoidance that he is entitled to an exception to discretionary act immunity under General Statutes § 52-557n (a) (2) (B). Haynes v. Middletown, 122 Conn. App. 72 (2010).


  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.”


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).

posted by Carey Reilly at 1:20 PM