NUZZO & ROBERTS NEWSLETTER

Transcription

1 NUZZO & ROBERTS NEWSLETTER Volume 14 No. 4 April 2006 WAVER OF LABLTY Superior Court Extends the Supreme Court Holding in Hyson to Waivers for All Types of Activities Not Just Those Associated with Recreational Facilities n Zides v. Quinnipiac University, 2006 WL (February 7, 2006), the court held that a waiver used by a private university was insufficient to bar a claim for negligence against the school for negligently maintaining a screen used to protect a pitcher during batting practice when the pitcher is much closer to the batter than during a normal game. The student plaintiff was allegedly injured after being hit by a baseball that he pitched during batting practice. The defendants moved for summary judgment on the ground that the student plaintiff voluntarily and knowingly signed an Acceptance/Liability Waiver that purported to release the college, its agents and employees from any liability caused by, or arising out of his participation in the colleges athletic programs. The defendants attempted to distinguish Hyson v. White Water Mountain Resorts, 265 Conn. 636 (2003), where the Supreme Court held that a ski resort s waiver did not protect it against liability for its own negligence because the waiver did not expressly provide that the patron was absolving the ski resort of its own negligence. The defendants argued that Hyson only controls waivers signed by the patrons of ski resorts and waiver agreements in other contexts remain unresolved. n denying the defendants motion for summary judgment, the court held that Hyson is not limited to the activity of skiing and applies equally to college students engaging in sports activities. EDTOR S NOTE: The Supreme Court holding in Hyson has called into question waivers of liability in many different contexts. t appears that superior courts will be reluctant to grant summary judgment in such cases, even if the waiver of liability is clear and unambiguous. See Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314 (2005), in Nuzzo & Roberts December 2005 Newsletter for a discussion of Hyson applied in the ski resort context.

2 PLEADNG Superior Court Holds that Physical njury Resulting Solely from Emotional Distress Can Only be Recovered under a Theory of Negligent nfliction of Emotional Distress as Opposed to a Standard Negligence Claim n Fisher v. Yale University, 2006 WL (February 8, 2006), the court struck a count for physical manifestation of emotional injuries where the plaintiff pleaded a standard negligence claim rather than any of the necessary elements of negligent infliction of emotional distress, which are required to be proven for this type of harm. The plaintiff alleged that the defendant hospital failed to safeguard her personal information, and as a result, the defendant s employee accessed this information allowing her to intimidate, harass and threaten the plaintiff. As a result, the plaintiff allegedly suffered emotional distress, trauma, anxiety, aggravation of post traumatic stress disorder, resulting migraine headaches, depression sleepiness, nausea and stress related temporo-mandibular joint pain. The defendants moved to strike this count on the ground that a claim for negligence does not lie where there is no primary physical injury and that the appropriate claim is for negligent infliction of emotional distress. The court noted that there is a dichotomy in tort law pertaining to emotional distress. Claims that emotional distress resulted from a physical injury should be made... by way of a straight negligence cause of action. On the other hand, where the injury claimed is a physical manifestation of an emotional injury, the claim is one for negligent infliction of emotional distress. The plaintiff here alleged that she sustained purely emotional injuries or physical manifestations of emotional injuries. Thus, the court held that the plaintiff s negligence count was insufficient as a matter of law because she did not claim that the emotional injuries were the result of a physical injury. DOG BTE STATUTE Appellate Court Holds that Employer/Landlord Did Not Exert Control over its Employee s Dog Sufficient to Create Liability n Auster v. Norwalk United Methodist Church, 94 Conn. App. 617 (2006), a visitor of the defendant was bitten by a dog owned by a church employee who lived in an apartment in the parish house. The plaintiff filed suit against the church as the keeper of the dog, pursuant to Connecticut General Statutes , the dog bite statute. The statute imposes strict liability on the owner or keeper of a dog that does damage to the body or property of any person. A keeper is defined as any person, other than the owner, harboring or possessing any dog. n addition, to be considered a keeper of a dog under the statute, control over the 2

3 dog must be exerted. After a jury trial, a verdict was rendered in favor of the plaintiff and the defendant appealed. The Appellate Court reversed the judgment. The Court held that, although the defendant owned the premises and controlled the premises, such control was not sufficient to constitute control over the dog. The Court found that the church did not feed, water or house the dog. The dog resided only in its owner s living quarters, either in the apartment, on the porch or chained to the steps leading to the apartment, and did not roam freely around the defendant s property. Accordingly, the defendant did not harbor or possess the dog, and thus did not control the dog. As such, the defendant was not the keeper of the dog and could not be liable under the statute. CVL PROCEDURE Superior Court Holds that Failure to Comply with Statute of Limitations Cannot be Resolved by a Motion to Dismiss and Must be Pleaded as a Special Defense n Rose v. Proto, 2006 WL (Mar. 9, 2006), a student filed suit against his teacher and principal when he was injured in gym class. A marshal received the complaint on April 16, 2004, for purposes of serving the defendant. mportantly, the plaintiff alleged that the incident occurred on April 18, However, the incident actually occurred on April 11, The defendants, therefore, asserted a special defense claiming that the complaint was barred by the statute of limitations and thereafter moved for summary judgment on the special defense. The plaintiff objected and argued that failing to comply with the appropriate statute of limitations was a matter affecting personal jurisdiction, thereby properly resolved by a motion to dismiss. Since the defendant did not raise the issue until its answer, which was well beyond the thirty day time limit by which to file a motion to dismiss, the plaintiff claimed that the defendant waived his right to claim that the suit was barred by the statute of limitations. The court rejected the plaintiff s argument and held that failing to comply with the statute of limitations is an affirmative defense that must be specially pleaded and cannot be resolved on a motion to dismiss. The court further held that the proper vehicle to challenge the statute of limitations is a motion for summary judgment or a motion to strike, in those instances where all facts necessary to a determination of the issue are apparent in the complaint. 3

4 HOUSNG DSCRMNATON Superior Court Holds that Non-Disabled Persons Can Recover for Discrimination against their Associates and Allows Nominal Damages in Discrimination Actions n CHRO ex. rel. Westphal, 2006 WL (Mar. 23, 2006), Rebekah Westphal and Kathy Sanchez attempted to rent an apartment from the defendant but were effectively denied the apartment when the defendant would not permit them to install, at their own expense, a handicap accessible ramp, necessary to accommodate Sanchez, who was confined to a wheelchair. Westphal, Sanchez and the Commission on Human Rights and Opportunities (CHRO) filed suit pursuant to the Connecticut Fair Employment Practices Act and the Connecticut Fair Housing Act, alleging disability discrimination. The trial court found in favor of Sanchez, but against Westphal, reasoning that Westphal could not recover because she was not disabled. The CHRO moved to reargue the decision as to Westphal. On reconsideration, the court looked to the federal courts interpretation of the Federal Fair Housing Act (FFHA). The FFHA and federal caselaw clearly indicated that a rentee who is not handicapped may recover for discrimination on the basis of the disabled status of their children, parents, friends, siblings, roommates, etc. Therefore, the court reversed its earlier decision and found in favor of Westphal. Westphal, however, presented no evidence to prove damages. Therefore, the court awarded her $1 in nominal damages. n so doing, the court distinguished Right v. Breen, 277 Conn. 364 (2006), which was decided less than one month prior. Right stands for the proposition that in a negligence action, a plaintiff cannot recover even nominal damages if the damages element of negligence is not proven. However, since the present case was a housing discrimination case, the public policy of deterrence warranted the allowance of nominal damages. CUTPA On Reconsideration Superior Court Strikes CUTPA Claim against Former Bridgeport Mayor Where There Was No Allegation that He Was Acting in the Scope of His Primary Trade or Commerce n Bridgeport Harbor Place, LLC v. Ganim, 2006 WL (March 15, 2006), the court vacated its prior denial of a motion to strike a CUTPA claim against Ganim and granted the motion to strike. The Court recognized that the Appellate Court in McCann Real Equities Series XX, LLC v. David McDermott Chevrolet, nc., 93 Conn. App. 486 (2006) held that a CUTPA violation may 4

5 not be alleged for activities that are incidental to an entity s primary trade or commerce. Here, the plaintiff alleged that Ganim, as mayor of the city of Bridgeport, interfered with the plaintiff s contract to develop property known as Steel Point in order to steer a development project to a developer who would pay kickbacks to Ganim. n reversing its prior decision and granting the motion to strike the CUTPA count, the court held that the allegations do not allege that Ganim had as his primary trade or business the development of real estate as is required under McCann. WE ARE READY TO HELP N uzzo & Roberts has highly skilled and trained lawyers eager to serve you in the following areas. Please call us or send us an . Uninsured Motorist: Tony Nuzzo at anuzzo@nuzzo-roberts.com Professional Liability: contact Rick Roberts at rroberts@nuzzo-roberts.com or Tony Nuzzo at anuzzo@nuzzoroberts.comr Bad Faith and Coverage ssues: contact Tony Nuzzo at anuzzo@nuzzoroberts.com Product Liability: contact Rick Roberts at rroberts@nuzzo-roberts.com Premises Liability: contact Rick Roberts at rroberts@nuzzo-roberts.com or Robert J. Chomiak, Jr. at rchomiak@nuzzo-roberts.com Third-Party Claims and ndemnity: contact Rick Roberts at rroberts@nuzzoroberts.com State and Federal Appellate Work: contact Rick Roberts at rroberts@nuzzoroberts.com Workers Compensation: contact David Weil at dweil@nuzzo-roberts.com Employment Law: contact Rick Roberts at rroberts@nuzzo-roberts.com or Nicole Chomiak at nchomiak@nuzzoroberts.com Fraud and Strategic nvestigation: contact Rick Roberts at rroberts@nuzzoroberts.com Trials: Rick Roberts at rroberts@nuzzoroberts.com; Tony Nuzzo at anuzzo@nuzzo-roberts.com; Robert Chomiak, Jr. at rchomiak@nuzzoroberts.com or Nicole Chomiak at nchomiak@nuzzo-roberts.com Complex Litigation: Tony Nuzzo at anuzzo@nuzzo-roberts.com or Rick Roberts at rroberts@nuzzo-roberts.com 5

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