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CONNECTICUT BAR JOURNAL

VOLUME 83 MARCH 2009 NUMBER 1

JACK G. STEIGELFEST, Editor-in-ChiefHoward Kohn Sprague & FitzGerald LLP

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ERIKA AMARANTE, Technical Editor, New Haven

SENIOR TOPICAL EDITORS

LIVIA D. BARNDOLLAR, New Canaan Family LawFRANK S. BERALL, Hartford Probate and Estate PlanningKATHRYN A. CALIBEY, Hartford Civil LitigationPETER L. COSTAS, Hartford Trade Regulation and Intellectual PropertyCARL T. GULLIVER, New Haven BankruptcyERNEST M. LORIMER, Stamford Business EntitiesLINDA L. MORKAN, Hartford Appellate LawEMANUEL MARGOLIS, Stamford Human Rights LawKENNETH R. PLUMB, Hartford Labor Relations and Employment LawTIMOTHY H. EVERETT, Hartford Criminal LawPETER W. SCHROTH, Hartford International Law and Financial InstitutionsRICHARD W. TOMEO, Hartford Taxation

EDITORS-AT-LARGE

INDEX EDITORSDomenic D. Perito, Hartford James B. Streeto, Middletown

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TABLE OF CONTENTSPage

2008 CONNECTICUTAPPELLATE REVIEW.....................Wesley W. Horton and Kenneth J. Bartschi 1

2008 CONNECTICUTTAX LAW DEVELOPMENTS ......John R. Shaughnessy and Scott E. Sebastian 35

TORT DEVELOPMENTSIN 2008......................................................................................James E. Wildes 51

BOOK REVIEW THE ACTIVIST: JOHN MARSHALL,MARBURY V. MADISON, AND THEMYTH OF THE JUDICIAL REVIEW ......................................William T. Barrante 87

2008 CONNECTICUT APPELLATE REVIEW

BY WESLEY W. HORTON AND KENNETH J. BARTSCHI*

I. SUPREME COURT

A. Top Three Decisions of 2008

After fifteen years on the Supreme Court, Justice RichardPalmer can rightfully claim that 2008 was the Year of thePalmer.1 He wrote the majority opinion in the most impor-tant case of the year, Kerrigan v. Commissioner of Public

Health,2 and he wrote either the majority opinion or a majorconcurring opinion in the second and third most importantcases of the year, State v. DeJesus,3 and State v. Salamon.4

Thus, Palmer starred in all three of the most important deci-sions of 2008.5

1. Kerrigan

Kerrigan is the most important case of the year and is theone decision that made national headlines. For the benefit ofanyone in a coma for the last few months, Palmer held for a4-3 majority in October 2008 that the exclusion of same-sexcouples from the right to marry violates the equal protection

2009] 2008 CONNECTICUT APPELLATE REVIEW 1

* Both of the Hartford Bar. This Review considers all cases officially decidedbetween February 1, 2008 and December 31, 2008, plus all cases argued in the fallof 2007 and officially reported in late 2007 or in January 2008. In the past theauthors have attempted to report on one full court year – the cases argued betweenSeptember and May. But because some of the justices take forever to write opinions,and others take no time at all to do so, this way of reporting really does not work.Also, some major cases can take well more than a year regardless of the author, especially where there are dissents. In any event, as of December 31, 2008, at least12 appeals (companion appeals are counted as one) argued between January andApril 2008 await decision. In the future, the authors will simply report on all casesofficially decided in a calendar year regardless of when they were argued.

1 A bird of exceptional plumage. The authors have occasionally seen one toadd to their lifelists. For example, 1998 was the Year of the Katz.Wesley W. Hortonand Susan M. Cormier,1998 Connecticut Appellate Review, 73 CONN. B.J. 73 (1999).

2 289 Conn. 135, 957 A.2d 407 (2008) (en banc). Attorney Bartschi served onthe legal team that represented the plaintiffs.

3 288 Conn. 418, 477, 953A.2d 45 (2008) (en banc) (concurring opinion).4 287 Conn. 509, 949 A.2d 1092 (2008) (en banc) (majority opinion).5 The fourth most important case of 2008 is Fish v. Fish, 285 Conn. 24, 939

A.2d 1040(2008) (en banc). Fish was officially decided on January 15, 2008 andwas discussed in last year's Review.

provision of Article First, § 20 of the Connecticut Consti -tution. With the approval of a referendum in California over-ruling a similar California decision, Connecticut, Massachu -setts, Iowa, and Vermont are now the only states permittingsame-sex couples to marry.

In a gloriously eloquent opinion, Palmer decried the tradi-tional societal and governmental discrimination against gaypeople. While the rights of such individuals are not specifical-ly mentioned as one of the suspect categories of Section 20,Palmer developed a test for identifying quasi-suspect classesunder the state constitution. He identified two factors—a histo-ry of discrimination and a distinguishing characteristic thatbears no relation to the ability to contribute to society—thatmust be shown in order for a plaintiff to prevail. Two addition-al factors—immutability, and minority status or lack of suffi-cient political power to remedy the wrong through the legisla-tive process—may also be considered and presumably could bedispositive in a close case. Palmer concluded that all four fac-tors were established and thus sexual orientation constituted aquasi-suspect class. Palmer’s analysis is particularly exhaustiveconcerning the fourth factor (political powerlessness). Applying heightened scrutiny, he also rejected the state’s rea-sons—uniformity with other jurisdictions and tradition—asbeing insufficient to exclude same-sex couples from marriage.

One gripe the authors do have, that Palmer’s opinion high-lights, has to do with the constitutional analysis outlined inState v. Geisler.6 Ironically, Palmer’s opinion illustrates whythe six-prong Geisler analysis mandated for state constitu-tional adjudication is much too wooden and should be over-hauled. It is just plain weird for the majority first to have a70-page exposition on general equal protection principlesand then, oh, by the way, to conduct a 24-page Geisler

review. If the first prong of Geisler is a textual analysis of therelevant constitutional provision, that analysis ought to comefirst. The problem is that the six categories, called “tools,”overlap, are not of equal importance (although Geisler does

2 CONNECTICUT BAR JOURNAL [Vol. 83

6 222 Conn. 672, 610 A.2d 1225 (1992). Unless a Geisler analysis is con-ducted by the appellant, a state constitutional challenge will not be considered. Statev. Allen, 289 Conn.50, 580 n.19, 958A.2d 1214 (2008).

not put the tools in any particular order of importance), andoften provide unpersuasive information. For example, inKerrigan, tool number 4, sibling state decisions, was largelyrejected because the adverse decisions did not impress themajority. Indeed, Kerrigan emphasized what Geisler itselfdid not – that it is persuasive sibling state authority, which inKerrigan included New York Chief Judge Kaye’s and NewJersey Chief Justice Portiss’s dissents, that counts.

Palmer was joined in the majority by Justices FlemmingNorcott and Joette Katz and Appellate Court Judge LubbieHarper.7 There were three dissenting opinions. Justice DavidBorden,8 joined by Justice Christine Vertefeuille, largelyagreed with the constitutional principles in the majority opin-ion but disagreed with the application of the quasi-suspectclass principle to gay rights.9

Borden held that all four factors discussed by the majori-ty for quasi-suspect status had to be established and that,because gay people had sufficient political power, judicialintervention under heightened scrutiny was unnecessary toremedy the harm claimed. Borden concluded that incremen-tal change sufficiently supported the legislature’s decision toenact civil unions rather than extend marriage to same-sexcouples. Vertefeuille also filed her own brief dissent toemphasize the heavy burden the plaintiffs faced in challeng-ing the marriage laws.10

Finally, Justice Peter Zarella wrote a lone dissent thatshowed a judicial philosophy far different from not only the


7 Chief Justice Chase Rogers and Senior Justice William Sullivan recusedthemselves.The Supreme Court in June 2006 had promulgated a written en banc pro-cedure for choosing Appellate Court judges on a rotating basis to sit in such cases.Judge Harperpresumably was the next judge in line.

When, as in Kerrigan, exactly six justices are qualified to hear an importantcase, choosing one Appellate Court judge in a preset way is certainly a better solu-tion than either dropping one justice to have a non-en banc panel, or having only thesix justices decide the case with the possibility of a 3-3 tie, or letting the presidingjustice choose any qualified judge, which could lead to claims of cronyism orattempting to influence the result. Since Harper was a tie-breaking vote, it is veryfortunate the neutral procedure for choosing him was in place prior to the argument.

8 Borden retired at age 70 in August 2007 but was statutorily permitted tovote on any case on which he sat prior to age 70. CONN. GEN. STAT. § 51-198(c).

9 289 Conn. at 263.10 Id. at 321.

majority but also the other two dissenters. He argued that thepurpose of marriage is to encourage responsible procreationand child-rearing. Since same-sex couples do not procreatenaturally, they are not similarly situated to opposite sex cou-ples. He concluded that rational basis review applied. Further,any underinclusion or overinclusion (given that some oppo-site-sex couples do not procreate and some same-sex couplesrear children) is permitted under rational basis analysis.11

Concerning the level of scrutiny, the Kerrigan decisionplowed new judicial territory in basing its decision on quasi-suspect class analysis, unlike Goodridge v. Department. of

Public Health,12 which decided the case on rational basis,and In re Marriage Cases,13 which decided the case on strictscrutiny.

Kerrigan also plowed new political territory in survivingthe November 2008 election returns, unlike the decision inCalifornia.14 While Connecticut, unlike California and manyother states, never succumbed a century ago to the populistimpulse to add ballot initiatives to state constitutions,November 2008 coincidentally happened to be the time thatcomes every 22 years to decide whether a state constitution-al convention should be convened. Those opposing gay mar-riage had for months been promising a yes vote so that a bal-lot initiative could be added to the constitution. WhenKerrigan was unofficially released on October 10, 2008,their efforts redoubled. But, contrary to the prediction of thepolsters, they failed by a considerable margin (nearly 60%)and there will be no constitutional convention. The no votereflects the lack of any real political fallout from Kerrigan. Itis an important victory for gay rights advocates and can rea-sonably be viewed as a ratification of Kerrigan and the vot-ers’ deference to the court’s authority to adjudicate constitu-tional claims.


11 Id. at 322.12 440 Mass. 309, 798 N.E.2d 941 (2003).13 43 Cal. 4th 757, 183 P.3d 384 (2008).14 Opponents of the Goodridge decision in Massachusetts attempted a ballot

initiative to prohibit further marriages between same-sex couples. The initiativefailed to muster enough votes in the legislature to be placed on the ballot.

2. DeJesus

State v. DeJesus15 garnered no publicity, nationally or oth-erwise, but it is the second most important case of 2008. Itheld that the Code of Evidence adopted by the Judges of theSuperior Court, while binding on them, is not binding on theSupreme Court.

Like Kerrigan, DeJesus yielded four opinions. UnlikeKerrigan, DeJesus did not yield a majority opinion. Indeed,all four opinions in DeJesus are quite different from oneanother, although six of the justices agreed that the Code ofEvidence is not binding on the Supreme Court. Chief JusticeRogers wrote in the plurality decision, joined by JusticesNorcott and Vertefeuille, that the Superior Court judges’intent to bind the Supreme Court was ambiguous. Because ofdoubt whether the judges could constitutionally do that, theplurality decided that the judges did not do so.16 JusticePalmer, writing for himself, concluded that the judges unam-biguously did not intend to bind the Supreme Court becausethey had no constitutional power to do so.17 Justice Zarella,writing also for Justice Sullivan, considered the intent of thejudges unimportant, because they had no constitutionalpower to bind the Supreme Court.18 Finally, Justice Katz,writing for herself, said, a pox on all your houses, the judgesdid it and they had the power to do it.19 Former JusticeBorden, the father of the Code, must be rolling in his office(at the Appellate Court).

DeJesus abounds in interesting issues, but the intention ofthe Superior Court judges is not among them. If there is anyambiguity in their language, Katz wins that one, especiallywith the additional materials she cites in replacement pages20

concerning Borden’s communication with the judges whilethe Code was being considered. The really interestingjurisprudential questions are:


15 288 Conn. 418 (2008).16 288 Conn. at 444-62.17 Id. at 477,479-88.18 Id. at 488, 489-94.19 Id. at 494, 495-528.20 CONN. L.J. at vii-viii (Dec. 16, 2008).

(1) Can a Code of Evidence adopted by the SuperiorCourt judges bind the Supreme Court?;

(2) If not, does it make sense to have a Code that isbinding on one court but not another?;

(3) Can the Supreme Court itself adopt a Code ofEvidence?

(4) If so, should it?(5) Is there a difference between a rule of evidence

and a rule of practice?(6) If not, can the legislature overrule a rule of evidence? (7) Where does State v. Clemente21 stand in all this?; and (8) What about the Appellate Court?

Question (1) was explicitly answered “no” by Palmer,Zarella, and Sullivan and “yes” by Katz. The other threedoubted the Superior Court’s power to bind the SupremeCourt. The key here is the traditional powers of the SupremeCourt, especially those existing in 1818, when the first con-stitution was adopted. Here Katz is on weak ground. Rogerspoints to a number of pre-1818 cases in which the SupremeCourt was exercising its common-law powers to decide a ruleof evidence. Palmer and Zarella also emphasize this point intheir concurring opinions. Katz notes in her lone dissent thatthe legislature itself could pass a Code of Evidence bindingon all the courts. That is true, but it is no answer constitu-tionally. Just because the legislature, as a coordinate branchof government, has had the traditional power to change therules of evidence does not mean the Superior Court judgeshave the power to change the traditional relationship amongentities in the same branch of government.

Question (2): So after DeJesus, the Code is binding attrial, but not on the appeal. That is truly bizarre. Suppose aCode provision is unclear and no appellate decision is direct-ly on point. Is the trial judge supposed to go through the usualmethod of construing the Code’s language and commentaryto arrive at a rule that will bind it? We suppose so, but whata futile effort that is when the Code is binding on the trialcourt but only advisory on the appeal! Put another way, “the


21 166 Conn. 501, 353A.2d 723 (1974).

law” means one thing in one court and something else inanother court.

Our advice is to consider turning the Code into a super-Tait,22 persuasive but not binding on all courts. There isprecedent for this: before 2006, the Official Commentary tothe Rules of Professional Conduct was “approved in princi-ple,” not “approved,” by the Superior Court judges.

Question (3): The problem may or may not be solved byhaving the Supreme Court adopt the Code. As Katz23 andState v. James24 show, other state supreme courts have assert-ed their authority to establish rules of evidence, but thatwould be a startling change from tradition in Connecticut. Ofcourse tradition is not everything and, in any event, theSupreme Court has for many years exercised a supervisorypower over the lower courts. While the Court has done so inthe context of decision-making, it usually only applies a newprocedure to future cases, which is very much like pure rule-making. The Constitution itself is not much help, since all itsays (in Section 1 of Article Fifth) is that the powers andjurisdiction of the various courts “shall be defined by law.”Nor is General Statutes Section 51-199(a) a model of clarity:

The Supreme Court shall have final and conclusive jurisdic-tion of all matters brought before it according to law, and maycarry into execution all its judgments and decrees and instituterules of practice and procedure as to matters before it.

Where a code of evidence would fit in that language is nottoo clear. The authors conclude that they are dubious aboutthe Supreme Court’s power to adopt a Code of Evidence.

Question (4): The authors are, however, capable on occa-sion of being practical. It is not clear that the answer to (3) isno. So if the choice is (a) to continue with the present situa-tion, (b) to have the Supreme Court adopt a code in lieu of theSuperior Court code, or (c) to have no code at all (or to makethe code simply be a super-Tait), with the real possibility thatthe legislature will adopt a binding code, the authors, after


22 COLIN C. TAIT & ELIOT D. PRESCOTT, TAIT'S HANDBOOK OF CONNECTICUT

EVIDENCE (4th Ed. 2008).23 288 Conn. at 521-22.24 211 Conn. 555, 562, 560 A.2d 426 (1989).

some hemming and hawing, go with choice (b).

Question (5): The next question is whether there is ajurisprudential difference between a Superior Court Code ofEvidence and a Superior Court Code of Practice, i.e., thePractice Book. Katz says there is little practical differenceand both are binding on the Supreme Court. Palmer saysthere is little practical difference and neither is binding on theSupreme Court. Zarella says the Court does not need todecide whether there is a difference. Rogers is silent.

While Zarella is correct for this case, the question is ofgreat future significance and it is here that Palmer’s lone con-currence shines. While Rogers and Zarella argue that theSupreme Court in 1818 had the ultimate judicial authorityover the rules of evidence, Palmer ultimately has a very pow-erful argument that the Supreme Court in 1818 had ultimateauthority over both the rules of evidence and the rules ofpractice. Between 1808 and 1856, all of the judges of theSuperior Court were simultaneously the justices of theSupreme Court. When they adopted trial rules of practice in1808, it was unclear which hat they had on, as Zarella pointsout. But it was quite clear that they had on their SupremeCourt hat concerning the adoption of trial rules in 1847.25

And as Palmer’s replacement pages show,26 the legislaturetwice gave that power to the Supreme Court shortly after theadoption of the 1818 constitution.

One might respond that the Superior Court judgesthroughout the twentieth century adopted trial court PracticeBook rules that the Supreme Court considered (withoutanalysis, however) binding on the Supreme Court. But thatsounds suspiciously like a Clemente argument, a dubiousauthority to be discussed next.

Question (6): The interesting question arising fromPalmer’s and Katz’s argument that rules of practice and rulesof evidence are essentially fungible is that Clemente holdsthat rules of procedure are within the exclusive constitution-al power of the judiciary; if the legislature passes a statute


25 Rules of Practice, 18 Conn. 559 (1847).26 CONN. L.J. at v-vi, n.h (Dec. 16, 2008).

governing court procedure, it is unconstitutional unless thecourt acquiesces. Fifteen years later, the Court held in James

that rules of evidence are not subject to the Clemente rule andthe legislature can constitutionally alter the rules of evidence.So if Palmer and Katz are right, then either Clemente orJames is wrong.

Question (7): Clemente is wrong and should be overruled.Justice John Cotter’s dissent in Clemente is irrefutable: allthrough the nineteenth and early twentieth century, theSupreme Court acknowledged the legislature’s power overcourt procedure. Indeed the rules in 1808 and 1847 specifi-cally refer to statutory authority. Justice Alva Loiselle’smajority opinion in Clemente talks about evolving ideasabout separation of powers, but the so-called evolution cul-minating in Clemente started with a case from 1958 thatmiscited a case from 1950.27

Question (8): Palmer is the only justice who refers towhether the Appellate Court can depart from the Code ofEvidence. He says yes, which makes sense but has a difficul-ty: the Supreme Court’s power to depart from the Code isbased on its traditional powers in 1818, but the AppellateCourt was only created in 1983. In the end we agree withPalmer because what was traditional in 1808 was so in 1983.It is a good thing the Code of Evidence did not predate thecreation of the Appellate Court.

3. Salamon

The third most important case of 2008 is State v.

Salamon,28 authored by Palmer. In Salamon, the Court over-ruled prior constructions of the crime of kidnapping, whichhad held that the state merely needed to prove the requisiteintent—i.e., preventing the victim’s liberation—rather thanshowing the confinement or movement of the victim wasmore than minimal and incidental to the commission of anoth-


27 State Bar Assn. v. Connecticut Bank & Trust Co., 145 Conn. 222, 232, 140A.2d 863(1958), held that the judiciary had exclusive control over court procedure,citing In re Dattilo,136 Conn. 488, 492, 72 A.2d 50 (1950), which said no suchthing. See WESLEY W. HORTON, THE HISTORY OF THE CONNECTICUT SUPREME

COURT, 172-73, 191-92, 307-08 (2008)(discussing the issue in detail).28 287 Conn. 509 (2008).

er crime against the victim. Writing for the 4-3 majority,Palmer provided a detailed analysis of why stare decisis andlegislative acquiescence did not preclude revisiting the earlierconstruction. After reviewing the history of the statute and thecommon-law crime of kidnapping and considering decisionsfrom other jurisdictions, the majority concluded that the stateneeded to prove that the defendant must have intended to pre-vent the liberation of the victim for an amount of time greaterthan necessary to commit the other crime. The majority alsonoted that, as written, it was difficult to distinguish betweenkidnapping and unlawful restraint. Borden concurred, notingthat the constitutionality of the plain language statute29 wouldhave been at issue but for the majority’s finding of ambiguityin the slightly different phrasing relating to restraining the victim. Zarella, joined by Vertefeuille and Sullivan, dissented,concluding that unlawful restraint and kidnapping require dif-ferent mental states and the purported ambiguity did not exist.Salamon is important because it recognizes the limits on staredecisis and shows the willingness of the Court to correct erro-neous prior decisions. Also, prosecutors will now properly bediscouraged from throwing in a kidnapping charge wheneverany sort of unlawful restraint is involved in committing theunderlying offense.

Our overview of the top three cases in 2008 is clear:Palmer had the starring role. He wrote the majority opinionin Kerrigan and Salamon and a significant concurring opin-ion in DeJesus. While Salamon continues his well-deservedrole as the resident expert on criminal law, Kerrigan showshis emergence as the leader of the court on a major issue ofcivil law, and he took it on with the passionate energy ofZarella and Katz. And DeJesus shows him writing alone onan interesting issue of state constitutional law.

B. Other Notable 2008 Decisions

Palmer also wrote the most important statutory construc-tion case of the year, Rivers v. New Britain.30 Rivers is easyto overlook because it was a supposedly routine fall-down


29 CONN. GEN. STAT. § 1-2z.30 288 Conn. 1,950A.2d 1247 (2008).

case. The plaintiff ’s action was statutorily relegated from thecity to the abutting landowner. But the abutting landownerwas the State of Connecticut, which was immune, so if thestatute applied the plaintiff was out of luck. Since the statutemade no exception for immune abutters, one would havethought that Section 1-2z would be an insurmountable obsta-cle for the plaintiff. And indeed Justice Barry Schaller in dis-sent said precisely that. But Palmer’s majority opinion turnedon the meaning of “unworkable” in Section 1-2z. Since thelegislature could not have intended to leave the plaintiff with-out a remedy, the plain language of the statute was held to beunworkable. So even though the language plainly barred theplaintiff ’s action, her action could proceed against the city.

If we step back for a minute to analyze Palmer’s reason-ing, what he is really saying is, if the legislature could nothave intended a particular result, then the legislature’s intentrather than the words it used controls. By giving a broad def-inition to “unworkable,” Palmer has resurrected 90% of whatDavid Borden was saying in State v. Courchesne,31 which thelegislature supposedly overruled in Section 1-2z. And Palmerconvinced even Zarella, who wrote the dissenting opinion inCourchesne, to go along with him.

Palmer also wrote Hummel v. Marten Transport, Ltd.,32

the most important statutory construction case of 2007, hold-ing that judicial construction of a statute prior to Section 1-2z was part of the plain meaning of that statute. Then in2008 he wrote not only Rivers but also Salamon, where, asBorden put it in a concurrence, Palmer grasped at a slim reedto find that the statute in question was ambiguous.33

Anyone who thinks, as the authors do, that the overrulingof Courchesne by the legislature was a giant step backwardfor judicial independence must applaud Palmer’s quiet buteffective efforts to push back. A word to the Connecticut trialand appellate bar: if a statute kills your case but the legisla-ture could not have intended that result, push back with aclaim that the plain language is unworkable.


31 262 Conn. 537, 816 A.2d 562 (2003) (en banc).32 282 Conn. 477, 923 A.2d 657 (2007) (en banc).33 287 Conn. at 574, 575.

In Jaiguay v. Vasquez,34 Palmer also cleared up a difficultconflict of law issue by holding in a comprehensive and per-suasive opinion that a tort claim by a plaintiff who has beenawarded workers’ compensation benefits is governed by tortrather than workers’ compensation conflicts law. In so hold-ing, Palmer overruled Johnson v. Atkinson,35 decided just ayear earlier, and clarified a number of prior Connecticutcases in this area.

Finally, Palmer wrote the most important of the threemajor federal preemption cases decided in 2008, Cambodian

Buddhist Society of Connecticut, Inc. v. Planning & Zoning

Commission,36 holding that the local commission’s denial ofa special exception did not impose a substantial burden onthe plaintiff ’s exercise of religion under the Religious LandUse and Institutionalized Persons Act of 2000, a federal lawwith the ugly acronym RLUIPA. Palmer’s opinion is anexhaustive discussion of First Amendment establishmentclause doctrine and the related doctrine of when “substantialburden” applies to governmental conduct. In the end, Palmerheld that the commission was merely applying a zoning reg-ulation of general application without discrimination to theplaintiff and that doing so did not violate RLUIPA.

Enough about Palmer. There are six other justices (sevenif we include Sullivan, who sat only occasionally and wrotevery few opinions in 2008). Katz and Zarella, the two justicesat opposite ends of the judicial spectrum, wrote many impor-tant opinions. Zarella’s majority and Katz’s dissenting opin-ions in Fish v. Fish,37 decided in January 2008, were dis-cussed in last year’s article. And we have already discussed in this article their concurring and dissenting opinions inDeJesus, as well as Zarella’s dissenting opinion in Kerrigan

and partially dissenting opinion in Salamon.

One of Katz’s most significant opinions is Monti v.

Wenkert.38 In Monti, she discusses in depth out-of-state law


34 287 Conn. 323, 948 A.2d 955 (2008).35 283 Conn. 243, 926 A.2d 656 (2007). The authors' firm represented the

defendant.36 285 Conn. 381, 941 A.2d 868 (2008).37 285 Conn. 24, 939A.2d 1040 (2008).38 287 Conn. 101,947A.2d 261 (2008).

on Mary Carter and high-low agreements that alter the rela-tionship among some litigants in continuing litigation. (Mary

Carter agreements essentially put one defendant on the plain-tiff ’s side against the other defendant; high-low agreementsmean the parties are arguing about less than the court thinks.)The Court properly adopted a rule for the future that suchagreements must be disclosed to the court and other partiesand that it is within the discretion of the court to allow suchevidence for impeachment purposes (but not directly to proveliability or damages). Katz was silent on whether high-lowagreements in which there are no nonparticipating partiesmust be disclosed to the court. The authors believe the courtshould know about all such agreements.

Katz also authored a fine opinion on statutory constructionin holding in Curry v. Allen S. Goodman, Inc.,39 that a stateagency could reasonably construe a silent statute to mandate a “reasonable accommodation” in context of an employee’sdisability. Katz has a particularly detailed discussion of whatconstitutes an agency’s time-tested interpretation of a statuteand whether that interpretation is reasonable.

Curry is also interesting for its brushing off of any con-cern about Section 1-2z. For Katz, since the statute was silentabout reasonable accommodation, the Court could consultsecondary sources even though a strict constructionist mightsay that silence is not equivalent to ambiguity. Then Katz,like Palmer, quietly chips away at the plain language doctrinewithout raising alarms at the legislature.

Katz, of course, is not oblivious to this point. In Provencherv. Enfield,40 she discusses whether a silent statute concerningpensions of municipal employees implied a private cause ofaction. In a footnote,41 Katz notes that legislative silence is notsufficient to allow the court to consult secondary sources: theremust be some ambiguity in the text. But she then goes on tosuch an exhaustive and persuasive discussion of the text andsurrounding statutory texts that no secondary source could


39 286 Conn. 390, 944 A.2d 925 (2008).40 284 Conn. 772, 936 A.2d 625 (2008).41 Id. at 780 n.7.

possibly refute her conclusion, thus demonstrating the authors’point that the threshold for ambiguity is so low that only thepristine clarity shown by the legislature in Provencher kicks inthe plain language mandate of Section 1-2z.

Katz also wrote an encyclopedic opinion in Andross v. West

Hartford42 on the common-law principles of classical aggriev-ement concerning an attempt to block the development of BlueBack Square in West Hartford. In Andross, the Court finallyrejected the plaintiffs’ efforts to expand the doctrine.

Finally, Katz wrote one of the three federal preemptioncases of the year, Connecticut Coalition Against Millstone v.

Connecticut Siting Council,43 holding that federal law pre-empts state law concerning the storage of spent nuclear fuel.Katz held that Congress impliedly intended to occupy thefield (field preemption), and thus a state agency could, withregard to environmental concerns, consider only nonnuclearenvironmental effects.

Zarella authored a decision limiting the right of a subcontrac-tor’s employees in suing the general contractor. In Archambault

v. Soneco/Northeastern, Inc.,44 Zarella wrote that a defendantmay assert that a nonparty employer was the sole proximatecause of the employee’s injuries under a general denial.

In a pair of decisions, Zarella provided needed clarifica-tion in the procedural requirements for habeas corpus cases.In Johnson v. Commissioner of Correction,45 the court heldthat a prisoner who seeks to withdraw a guilty plea on ahabeas corpus petition claiming ineffectiveness of counsel isnot “procedurally defaulted” for failing to raise it on a motionto withdraw his plea or on a direct appeal. And in Small v.

Commissioner of Correction,46 Zarella wrote that a habeasprisoner claiming that his counsel on the direct appeal wasincompetent need only prove that the result of the appealwould probably have been different, not that the result of the


42 285 Conn. 309, 939 A.2d 1146 (2008).43 286 Conn. 57, 942 A.2d 345 (2008).44 287 Conn. 20, 946 A.2d 839 (2008). The authors' firm represented the

general contractor.45 285 Conn. 556, 941 A.2d 248 (2008).46 286 Conn. 707, 946 A.2d 1203 (2008).

trial would have been too.

Finally, Zarella conducted a thorough discussion inGibbons v. Historic District Commission47 of the cases con-cerning limiting the review of administrative appeals to thereasons given by the agency. While the authors agree thatappellate review should be so limited, they do not agree thatthe agency should essentially get a free pass if it gives no rea-sons, because in that case the rule is, as Zarella noted in dic-tum, the court searches the record for any legitimate reasonto affirm the agency’s decision.48 That dictum, combinedwith Zarella’s proper holding, simply encourages agencieseither to give no reason or to embroider their real reasonswith a bunch of trivial ones. The court really ought to reex-amine Zarella’s dictum to encourage agencies to be candidabout the real reasons for their decisions, such as by shiftingthe burden of persuasiveness if no reasons or an excessivenumber of reasons are given.

Chief Justice Rogers’s most important role in 2008 wasleading the court not in furthering its jurisprudence but inrestoring the public confidence in the judiciary that was dam-aged by former Chief Justice Sullivan in 2006. In this veryimportant role, she succeeded admirably, mostly by follow-ing up on initiatives started by Borden when he was the act-ing chief justice for a year in 2006-07 to bring about moreopenness to all court proceedings. Criticism of SupremeCourt proceedings by the press and the legislature virtuallycame to a halt in 2008. Since such criticism can lead toattacks on judicial independence, Rogers’s continuing suc-cess in this leadership role is a major accomplishment.

That she was to some extent overshadowed by other jus-tices in opinion-writing is not her fault, because she was noton the panel for three of the four most important decisions in2008, Kerrigan, Fish and Salamon. Fish and Salamon wereargued just before she became chief justice, and in Kerriganshe was disqualified. In the fourth, DeJesus, she wrote theplurality opinion. While the authors applaud the promptissuance of Rogers’s own opinions, it is possible that some


47 285 Conn. 755, 941 A.2d 917 (2008).48 Id. at 770.

further delay in issuing DeJesus (it came out 7 months afterargument, which is lightning speed for a controversial enbanc case) would have given Rogers an opportunity to rec-oncile her plurality opinion with the concurring opinion ofeither Zarella or Palmer.

There were a number of election decisions in the past year;all of them were unanimous and all of them were written byRogers.49 The second Gonzalez case has an interesting dis-cussion of permissible burdens on circulating ballot petitionsbut the others either plow already plowed fields or turn onvery technical procedural points that should convince anyonecontemplating an election challenge to consult a specialist.

Perhaps Rogers’s most interesting decision of 2008 is State

v. John F.M.,50 where she creatively construed the incest statute so as to avoid creating an equal protection issue on thebasis of sexual orientation where the civil union and marriagestatutes do not agree on whether a person may marry or entera civil union with a stepchild. Thus the incest statute applies tocivil unions (and, a fortiori, presumably same-sex marriages).

In State v. Davis,51 Rogers wrote the majority decision reaf-firming the traditionally liberal Boscarino joinder rule in crim-inal cases. But Katz, joined by Palmer, stole the show with herconcurring opinion explaining the shortcomings of theBoscarino rule and taking the position that it be tightened.52

On the procedural front, Rogers wrote a fine opinion in In re

Leah H., clarifying the law of civil contempt as to both the clar-ity needed in the prior order to justify contempt and the pre-vailing murky standard of appellate review.53 However, Rogersunfortunately made a murky area murkier when she attempted,in a footnote in TES Franchising, LLC v. Feldman,54 to distin-


49 Gonzalez v. Surgeon, 284 Conn. 554, 937 A.2d 13 (2007); Gonzalez v.Surgeon, 284 Conn. 573, 937 A.2d 24 (2007); Caruso v. Bridgeport, 284 Conn. 793,937 A.2d 1 (2008) (en banc); Caruso v. Bridgeport, 284 Conn. 805, 937 A.2d 7(2008) (en banc); Wrotnowski v. Bysiewicz, 289 Conn. 522, 958 A.2d 709 (2008)(one justice court). The authors were startled when they first read the Wrotnowskiclaim that the Secretary of the State had a duty to verify Barack Obama's qualifica-tions to be President.

50 285 Conn. 528, 940 A.2d 755 (2008).51 286 Conn. 17, 942 A.2d 373 (2008).52 Id. at 38.53 284 Conn. 685, 935A.2d 1021(2007).54 286 Conn. 132, 138 n.6, 943 A.2d 406 (2008).

guish between the appellate standards of review for clear errorand abuse of discretion. Rogers talks about them as if they weredifferent varieties of apples, with clear error being a more strin-gent test than abuse of discretion. But to the authors, one is anapple and the other is an orange: clear error has to do withreview of a finding of fact; abuse of discretion has to do withreview of a ruling on a motion or objection. One has nothing todo with the other.

Finally, we completely agree with a third important proce-dural decision by Rogers, State v. Gore.55 Gore is an encyclo-pedic discussion of the law of waiver of the right to jury trial ina criminal case. Rogers invoked the court’s supervisory author-ity to establish a procedure in the future so that trial judges canbe sure that a defendant is personally waiving such a right.

Norcott wrote several fine significant opinions in 2008. Rhode

v. Milla56 finally decided whether the invocation of the FifthAmendment privilege is per se inadmissible in a civil case. It isnot, but the Court also adopted a four-prong test that will often,as in Rhode, allow the trial court to exclude such evidence.Norcott also wrote HH East Parcel, LLC v. Handy & Harman,

Inc.,57 holding that findings of fact in consensual arbitrations areconclusive, even on public policy; State v. Foreman,58 concern-ing the admission of computer-generated fingerprint and DNAevidence; and Finan v. Finan,59 a particularly exhaustive discus-sion of when a spouse’s pre-separation dissipation of assets maybe considered in a later dissolution case.

Likewise Vertefeuille wrote a number of important andpersuasive opinions: Gershman v. Gershman,60 following upon Finan and holding that making a bad investment is not perse dissipation; State v. T.R.D.,61 holding, on this issue unani-mously, that the sex offender registration is a strict liabilityoffense;62 and State v. Johnson,63 holding as a matter of state


55 288 Conn. 770, 955 A.2d1 (2008).56 287 Conn. 731, 949 A.2d 1227 (2008).57 287 Conn. 189, 947A.2d 916 (2008).58 288 Conn. 684, 954 A.2d 135 (2008).59 287 Conn. 491, 949 A.2d 468 (2008).60 286 Conn. 341, 943 A.2d 1091 (2008).61 286 Conn. 191, 942 A.2d 1000 (2008) (en banc).62 Schaller and Norcott dissented on another issue.63 286 Conn. 427, 944 A.2d 297 (2008).

constitutional law that the totality of circumstances test forprobable cause applies in nonwarrant as well as warrantcases.64

Vertefeuille also wrote the third major federal preemptioncase of the year, Hackett v. J.L.G. Properties, LLC,65 holdingthat the Federal Power Act preempts all aspects of hydro-electric projects, including local zoning regulations concern-ing a marina use on a lake used to generate hydroelectricpower. While the majority decided the case on field preemp-tion, we find Katz’s concurrence,66 agreeing with the resulton the more narrow basis of conflict preemption, more per-suasive because it is more in accord with the general princi-ple that the implied preemption doctrine should be appliedcautiously in a federal system.67

We come at last to Schaller, the newest and oldest member,newest because he was appointed effective in September 2007,oldest because he turned 70 in November 2008. So while hewill no doubt be writing Supreme Court decisions well into2009, 2008 was his big year. In Dutkiewicz v. Dutkiewicz,68 hewrote that the parent-education program that takes place dur-ing dissolution proceedings does not implicate the fundamen-tal rights of parents to direct their children’s education and sur-vived rational-basis review. In Commission on Human Rights

& Opportunities v. Sullivan,69 he concluded that a partyagainst whom an award of attorneys’ fees is assessed has aright to question the lawyer in court about the fees; an affidavitwill not suffice over objection. On the merits, the case reaf-firmed its earlier holding that lawful sources of income includeSection 8 vouchers. We also agree with two other proceduralopinions, one being Smith v. Andrews,70 making it clear for the


64 Gertrude Stein must have been the original source for one quote in theopinion: "It is a truism that probable cause is probable cause is probable cause." Id.at 447.

65 285 Conn. 498, 940 A.2d 769 (2008).66 Id. at 515.67 Ironically, Katz decided the nuclear storage case on field preemption

grounds. See supra note 43.68 289 Conn. 362, 957 A.2d 821 (2008).69 285 Conn. 208, 939 A.2d 541(2008). The authors' office represented the

defendants.70 289 Conn. 61, 79, 959 A.2d 597 (2009).

first time that Golding review applies in civil cases, the otherbeing his 3-2 decision in Rowe v. Superior Court,71 setting avery lenient standard for determining whether an inartful andinternally inconsistent objection properly preserved an issuefor appeal. Indeed, Palmer’s concurrence,72 joined by Zarella,argued that the issue was not properly preserved, but reachedthe same result under Golding.73

Discussing Schaller’s opinions last gives us the opport-unity to end our discussion of the Supreme Court’s opinionson a high note. Allen v. Cox74 concerned a cat fight. Theplaintiff tried to help and was bitten for her efforts. The badcat had never bitten anyone before and the issue essentiallywas whether a cat gets one free bite. And the answer is: No,if the cat has a bad reputation; yes, if it has a good reputation.

II. APPELLATE COURT

We turn now to the Appellate Court, which is the work-horse of the appellate system. The Appellate Court reversalrate is generally lower than the Supreme Court reversal rate,and this year was no exception.75 The court reversed only17% of the time, which is somewhat lower than past yearswhen the reversal rate has been around 20%. For cases sub-mitted on briefs only, the rate was 7%, which is slightly high-er than recent years. Several judge trial referees continue tosit regularly,76 which helps the Court work through its sub-stantial docket. There were no changes to the personnel on


71 289 Conn. 649, 660-63, 960 A.2d 256 (2009).72 Id. at 676.73 The large number of decisions discussing the plain error and Golding tests

in 2008 motivated the authors to revise drastically their discussion of these subjectsin their treatise. See WESLEY W. HORTON & KENNETH J. BARTSCHI, CONNECTICUT

RULES OF APPELLATE PROCEDURE §60-5, at 34-38 (West 2009).74 285 Conn. 603, 942 A.2d 296 (2008).75 Although the authors are transitioning to a calendar year, rather than a court

year, for the review, these statistics are based on cases argued between September 2007 and June 2008 and officially released by the end of 2008. Including cases arguedand released in the fall of 2008 would skew the reversal rate downward as many of theearly cases are routine error correction cases where there is no error to correct.

76 The most active judges are Borden, Foti, Mihalakos, Lavery, Pellegrino,Peters, and West. Several other judges sit occasionally, including Berdon, Cretella,Dupont, Freedman, Hennessy, McDonald, and Stoughton. Several of these judgesalso conduct preargument conferences.

the Court, although Judge Lavery’s status changed from sen-ior judge to referee.

A. Procedure

Turning to the decisions, we start with several interestingcases concerning trial procedure. In McCarthy v. WardLeonard Electric Co.,77 the court held that the trial courtproperly made credibility determinations based on affidavitsand documents when deciding a motion to open a defaultwhere the affidavit on the motion to open contradicted thesame parties’ earlier affidavit. The defendant’s employeeclaimed she was unaware of the defendant’s noncompliancewith environmental regulations, but several letters from DEPto her and her supervisor demonstrated otherwise. It does notappear that the defendant challenged the authenticity orreceipt of the letters informing it of the violations.

In Borrelli v. Zoning Board of Appeals,78 admitting anallegation that the defendants operated a “commercial horsefacility/livery stable” was not an unequivocal admission thatthey operated a livery stable in violation of zoning becausethe virgule (i.e., the slash) meant that a “commercial horsefacility,” which was permitted, was different from a “liverystable.”79 Rios v. CCMC Corp.80 held that a motion to dis-miss is the proper vehicle for challenging the lack of a good-faith certificate in a medical malpractice case.

Two cases concerning discovery rulings are worth noting.In Giblen v. Ghogawala,81 the court held that the trial courtabused its discretion in precluding a late-disclosed expertwitness in a medical malpractice action where the plaintiffhad difficulty communicating with the expert, who was inPeru and had suffered a personal injury. The court held thatthe plaintiff ’s delay was not in bad faith and that trial was notscheduled for seven more months at the time of the ruling. InPeterson v. Woldeyohannes,82 the court held that a party


77 104 Conn. App. 535, 935A.2d 189 (2007).78 106 Conn. App. 266, 941 A.2d 966 (2008).79 On the merits, the court looked at dictionary definitions of livery stable at

the time the regulation was enacted to determine the meaning. Id. at 274.80 106 Conn. App. 810, 943A.2d 544 (2008).81 111 Conn. App. 493, 959 A.2d 1059 (2008).82 111 Conn. App. 784, 961 A.2d 475 (2008).

which has been defaulted for failing to comply with discov-ery orders cannot present defenses in a hearing in damagespursuant to Practice Book Section 17-34(a) where the plain-tiff was prejudiced by the noncompliance.

Turning to appellate procedure, whether an appeal or writof error is proper sometimes causes confusion, as was thecase in State v. One or More Persons over Whom the Court’s

Jurisdiction Has Not Yet Been Invoked.83 There, the plaintifffiled a petition for the return of andirons he had purchased atan auction. As it turned out, the andirons were hot, and notjust from the fire. He filed a writ of error from the denial ofthe petition, but the court held that an appeal was the properprocedure, as he was an aggrieved party to an action. Thedecision contains a good discussion of what constitutes anaction for purposes of an appeal.84

Having been chastised in recent years for deciding issuesthe parties did not raise, the majority in Baldwin v. Curtis85

refused to consider whether the Landlord-Tenant Act,86 con-trolled the resolution of that case because the parties and thetrial court had not raised the issue. Chief Judge Flynn con-curred in the result but would have ordered supplementalbriefing on the application of the statutes.87 The authors agreewith Chief Judge Flynn, especially where the matter concernsa controlling statute the parties and trial court overlooked.

Barry v. Historic District Commission88 tackled the vex-ing question of finality in zoning appeals. A judgment sus-taining an appeal of the historic district commission decisionand implicitly remanding for a new hearing was finalbecause, in sustaining the appeal, the court decided all issuesbefore the commission.


83 107 Conn. App. 760, 946 A.2d 896, cert. denied, 290 Conn. 912, 957 A.2d880 (2008).

84 The authors disagree, however, with the court's decision to dismiss thewrit. The court could have treated it as an appeal or at least permitted the plaintiff in error to file a late appeal.

85 105 Conn. App. 844, 939 A.2d 1249 (2008).86 CONN. GEN. STAT. § 47a-1 et seq.87 105 Conn. App. at 852.88 108 Conn. App. 682, 950 A.2d 1, cert. denied, 289 Conn. 942, 959A.2d

1008 (2008).

Another finality case is State v. Thomas89 in which themajority held that the denial of a motion for specific per-formance of a sentence in accordance with a plea agreementwas not immediately appealable because further proceedings,such as a motion to dismiss, could have affected the defen-dant’s rights. Judge Bishop dissented because he did not view a motion to dismiss as the only procedural vehicle forchallenging the order.

Finally, the court remanded State v. Ryder90 for a hearingas to the facts necessary to determine whether the appeal wasmoot. The case concerned a fine for possessing a reptile, andthe defendant claimed he was pressured off the record to paythe fine, which would vacate the appeal.91 There were alsoquestions concerning collateral consequences. It is interest-ing that the court simply did not hold that the record wasinadequate for review.

B. General Civil

Two decisions concerning administrative matters areworth noting. Sastrom v. Psychiatric Security Review Board92

held that a declaratory judgment action claiming the boardlacked jurisdiction over an acquittee because it was not prop-erly composed did not require exhausting administrativeremedies where the statute authorizing appeals was limited tospecific issues. Fanotto v. Inland Wetlands Commission93

held that the commission improperly rejected expert testimo-ny based on lay testimony and observation of the property.Fanotto is unusual as the Appellate Court usually does notsecond-guess credibility determinations and the question wasnot whether the evidence was sufficient.

The court also questioned credibility determinations in aworkers’ compensation matter, Maradino v. Prometheus



90 111 Conn. App. 271, 958A.2d 797 (2008).91 The authors disagree with the premise that paying the fine would moot the

appeal. If the defendant prevailed on appeal, the state could return the fine, whichwould provide practical relief.

92 105 Conn. App. 477, 938 A.2d 1233 (2008).93 108 Conn. App. 235, 947 A.2d 422, cert. granted, 289 Conn. 908, 957

A.2d 869 (2008).

Pharmacy.94 There, the plaintiff, who had injured her arm atwork, injured her leg at home when she fell and could not usethe injured arm to break her fall. The court held that the boardimproperly accepted a medical report on causation because itdid not contain supporting facts. Judge Mihalakos dissented,concluding that the plaintiff ’s testimony that she was afraidof reinjuring her arm provided sufficient factual support forthe expert’s conclusions.

Another workers’ compensation case, Lopa v. Brinker

International, Inc.,95 held that the United States PostalService is not covered by the Workers’ Compensation Act.Although the act includes “public corporations within thestate” in its definition of employer, other sections of the actimpose burdens on employers to which the Postal Service hasnot expressly consented. The uniform definition of employertherefore precluded applying it to the Postal Service.

In an employment case, the court overlooked a pertinentstatute and reached the wrong result. The court held in Lyons

v. Jones96 that General Statutes Section 46a-60 did not con-tain an unequivocal waiver of sovereign immunity in claimsof employment discrimination against the state. However,General Statutes Section 46a-51(14) defines “person” forpurposes of the human rights statutes to include the state. Thecourt did not discuss Section 46a-51(14). Perhaps theSupreme Court, which granted certification, will find the def-initional language sufficiently unequivocal.

A contorted construction of a statute led the majority inSokatis v. Bakaysa,97 to conclude that a contract to split lot-tery winnings was enforceable. General Statutes Section 52-553 voids contracts where consideration is “money . . .won . . . at any game,” but the majority held that it did notapply because the money was not “won” when the partiesmade the contract. Judge Lavery dissented, arguing that the


94 105 Conn. App. 669, 939 A.2d 591, cert. granted, 286 Conn. 916, 917,945A.2d 977 (2008).

95 111 Conn. App. 821, 960 A.2d 1107 (2008).96 104 Conn. App. 547, 935 A.2d 201 (2007), cert. granted, 285 Conn. 914,

943 A.2d 472(2008).97 105 Conn. App. 663, 938A.2d 1278, cert. granted, 286 Conn. 913, 945

A.2d 976 (2008).

legislature was aware of the lottery when it enacted thestatute. His dissent makes more sense to the authors.

On the other hand, a common-sense construction of theHome Improvement Act led the court to conclude in Laser

Contracting, LLC v. Torrance Family Ltd. Partnership98 thatthe exception to the written contract requirement for newconstruction applied to work done to move and install a mod-ular home. The court recognized that the work was new con-struction “albeit with a used part.”99

In recent years, the Supreme Court has alternately heldthat insurance companies have a right of subrogation againstsocial guests of an insured, but not tenants.100 In Allstate Ins.

Co. v. Palumbo,101 the court held that the insured’s live-inboyfriend who negligently installed a heat pump that causeda fire was a social guest who could be subrogated against,rather than a tenant or boarder.

Two foreclosure matters are worth noting. New Milford

Savings Bank v. Jajer102 raised but did not decide whetherblanket mortgages covering multiple parcels could be fore-closed piecemeal. Connecticut Commercial Lenders, LLC v.

Teague103 concluded that obtaining a strict foreclosure on oneparcel through a partial judgment did not preclude proceed-ing on remaining counts of the complaint as to other parcelsbecause there was no final judgment to open. GeneralStatutes Section 49-15 precludes opening a judgment of strictforeclosure once the law days have passed, so the lack offinality is critical to piecemeal foreclosures.

In New Haven v. God’s Corner Church, Inc.,104 the courtheld that the filing of a satisfaction of judgment in a tax fore-closure sale did not deprive the court of jurisdiction to decidea motion to determine debt. The defendant argued that


98 108 Conn. App. 222, 947 A.2d 989 (2008).99 Id. at 228.100 Wasko v. Manella, 269 Conn. 527, 849 A.2d 777 (2004) (house guests);

DiLullo v. Joseph, 259 Conn. 847, 792 A.2d 819 (2002) (tenants).101 109 Conn. App. 731, 952 A.2d 1235, cert. granted, 289 Conn. 954, 961

A.2d 419 (2008).102 244 Conn. 251, 708 A.2d 1378 (1998) (en banc).103 105 Conn. App. 806, 940 A.2d 831 (2008).104 108 Conn. App. 134, 948A.2d 1035 (2008).

General Statutes Section 52-350d, which concerns post-judg-ment proceedings, precluded action after the filing of the sat-isfaction of judgment, but the court held that Section 52-305dapplied to payment of sums of money not to equitable pro-ceedings, such as the foreclosure at issue.

In property law, the court held in Sanders v. Dias105 thatthe trial court may properly consider that there was unity oftitle when determining the existence of an easement by impli-cation, even though the Supreme Court had abandoned therequirement of unity of title in forming easements.

Will contests seldom make it to the appellate level, butSanford v. Metcalfe106 was an exception. The decedent left abequest to the New York attorney who drafted the will, and theheirs at law failed to appeal timely from the decision concern-ing the unauthorized practice of law and violation of Rule1.8(c) of the Rules of Professional Conduct. Consequently,they were left to argue, unsuccessfully, that the bequest violat-ed public policy. The court disagreed, however, because nostatute prohibits the drafting lawyer from receiving a bequestunder the will. The authors do not understand why the Rules ofProfessional Conduct, which are voted on by the judges of theSuperior Court, do not establish the relevant public policy.

C. Families and Children

Family law comprises a significant portion of the court’sdocket, and the decisions often flesh out general principlesset out by the Supreme Court. In Weinstein v. Weinstein,107

the court came to the sensible conclusion that a decrease inthe payor’s income and increase in the recipient’s income was not a substantial change in circumstances warranting anupward modification of child support. The decision furtherheld that an order that deviates from the Child SupportGuidelines is not modifiable pursuant to the substantial devi-ation prong of General Statutes Section 46b-86(a).


105 108 Conn. App. 283, 947 A.2d 1026 (2008).106 110 Conn. App. 162, 954A.2d 188, cert. denied, 289 Conn. 931, 958A.2d

160 (2008).107 104 Conn. App. 492, 934 A.2d 306 (2007), cert. denied, 285 Conn. 911,

943 A.2d 306 (2008).

Another case concerning the Child Support Guidelines,Gentile v. Carneiro,108 held that a supplemental support orderbased on a bonus should be in the general percentage of theguidelines amount. Therefore an order to pay 50% of the first$20,000 in commission and 25% of amounts in excess wasimproper.

Where a party seeks to modify alimony due to the recipi-ent’s cohabitation, that party must show the change in finan-cial circumstances resulting from the cohabitation warrantsthe modification. Blum v. Blum109 makes clear that the mov-ing party bears this burden even though the recipient is likelyto have the information to show the change in circumstances.

In Mundell v. Mundell,110 the court held that a trial courtmay properly modify alimony by reducing the amount cur-rently payable and allowing the balance to accrue. InMundell, the obligor had lost his job and had not foundemployment at his prior earning capacity.

Guarascio v. Guarascio111 clarified that COBRA pay-ments are a form of alimony that the court has equitableauthority to order. Finan v. Finan112 held that the five-dayperiod prior to a hearing to make a request for productionpursuant to Practice Book Section 25-56 was five calendardays, not five business days.

Although a party must show wilful conduct to succeed ona motion for contempt, the court held in Sosin v. Sosin113 thatwrongful conduct, which is legally distinct from wilful con-duct, is enough to warrant interest awarded pursuant toGeneral Statutes Section 37-3a.

The court held in Johnson v. Johnson114 that the trial courthas authority in a contempt proceeding to order a party tosecure the services of a psychiatrist to facilitate visitationbetween a parent and a child. The court distinguished Savage


108 107 Conn. App. 630, 946 A.2d 871 (2008).109 109 Conn. App. 316, 951 A.2d 587, cert. denied, 289 Conn. 929, 958A.2d

157 (2008).110 110 Conn. App. 466, 955 A.2d 99 (2008).111 105 Conn. App. 418, 937 A.2d 1267 (2008).112 107 Conn. App. 369, 945 A.2d 476 (2008).113 109 Conn. App. 691, 952 A.2d 1258, cert. granted, 289 Conn. 935,

958A.2d 1245 (2008). The authors represent Mr. Sosin.114 111 Conn. App. 413, 959 A.2d 637 (2008).

v. Savage,115 which limits a court’s statutory authority toappoint a psychiatrist to family relations investigations.

The Premarital Agreement Act has existed since 1995, butprenuptial agreements made before the effective date of theact are still in effect and governed by common law. In Crews

v. Crews,116 a divided panel held that the trial court improp-erly concluded the agreement was unconscionable at the timeenforcement was sought where the trial court considered thestatutory criteria, which the agreement precluded. JudgeGruendel dissented, arguing that the court should not havelimited its consideration of changed circumstances since thesigning to financial circumstances.

The lack of a marriage, let alone a premarital agreement,can pose problems when cohabiting couples separate. InDiCerto v. Jones,117 the trial court properly considered the for-merly cohabiting parties’ conduct and the equities when divid-ing the proceeds from a partition action of their former home.

Abuse of discretion, the usual standard of review, is diffi-cult to surmount. However, in Fromm v. Fromm,118 the courtreversed the trial court ruling, finding laches as a matter oflaw where the defendant failed to provide contact informa-tion to the plaintiff, never filed a motion for contempt, andwaited ten years to seek payment of a child support arrearage.

Sometimes litigants overlook pertinent statutes, leading thecourt to an erroneous result. For instance, the court reversed inWatrous v. Watrous119 because the trial court entered an orderfor insurance without evidence of insurability. That was for-merly the law, but the legislature amended General StatutesSection 46b-84(f) to shift the burden to the would-be insuredto prove that insurance was unavailable. Footnote 5 notes thatthe parties made no statutory argument concerning insurance.

Whether the automatic appellate stay120 means the parties


115 25 Conn. App. 693, 596 A.2d 23 (1991).116 107 Conn. App. 279, 945 A.2d 502, cert. granted, 288 Conn. 901, 952

A.2d 809 (2008).117 108 Conn. App. 184, 947 A.2d 409 (2008).118 108 Conn. App. 376, 948 A.2d 328 (2008).119 108 Conn. App. 813, 949 A.2d 557 (2008).120 See PRAC. BK. § 61-11.

are still married during an appeal has never been addressed.Sunbury v. Sunbury,121 which requires that new trials onfinancial orders consider the parties’ situation at the time ofthe original decree, suggests that the decree of dissolutiongoes into immediate effect. In Kaczynski v. Kaczynski,122 thecourt “elected” to reverse the decree of dissolution, eventhough the parties had apparently not challenged the decreeitself. The court cited equitable concerns such as inheritancerights, but no authority for its reversal of the decree of disso-lution. The authors disagree with Kaczynksi because it isinconsistent with Sunbury and creates much unnecessaryconfusion about the marital status of parties when the finan-cial orders incident to their divorce are on appeal.123

Several cases concerning child protection deserve atten-tion this year. In re T.K.124 held that predictive neglect canoccur without a prior history of abuse or neglect, as whenboth parents had serious mental health issues, such as obses-sive anxieties about harming the child or suicidal thoughts.

The majority in In re Shanaira C.125 concluded that anintervenor (the father’s girlfriend who acted as the child’smother for two years), was not deprived of due processbecause the trial court did not permit her to examine wit-nesses during the dispositional phase of a hearing to revokethe commitment to the Department of Children and Families.


121 216 Conn. 673, 583A.2d 636 (1990).122 109 Conn. App. 381, 951 A.2d 690, cert. granted, 289 Conn. 929, 958

A.2d 158 (2008).123 Thomas v. Thomas, 159 Conn. 477, 481, 271 A.2d 62, 64 (1970), muddles

the waters a bit on this question. There, the Supreme Court held that an appeal froma divorce decree or decree of legal separation (the decree at issue in Thomas) shouldstay further proceedings (there, a decree of dissolution on the legal separation).Citing American Jurisprudence, Thomas stated, however, that the decree was bind-ing on the parties, subject only to possible reversal. Sunbury, of course, does not dis-cuss Thomas. In addition, Thomas was decided before no-fault divorce was avail-able in Connecticut. Parties did not always succeed in proving fault. E.g., Saundersv. Saunders, 140 Conn. 140, 98 A.2d 815 (1953) (failure to prove intolerable cruel-ty). In the authors' view, Thomas should be limited to cases where the decree of dis-solution itself is challenged, not the ancillary orders such as alimony or property dis-tribution. Clarity on this topic — from either the court or the legislature — wouldbe welcome.


125 105 Conn. App. 713, 940 A.2d 817, cert. granted, 286 Conn. 917, 945A.2d 977 (2008).

Judge Borden wrote a strong dissent, arguing that the inter-venor had the right to present evidence as to the child’s bestinterests.126

In In re Jorden R.,127 the court held that the trial courtimproperly excluded expert testimony and a report that wasbased on another report which contained the father’s confi-dential information. Instead, the trial court should haveredacted the protected information and limited the expert tes-timony. The court also held that DCF should have madereunification efforts for the mother where she was cooperat-ing with the services she was ordered to use.

In contrast, in In re Emerald C.,128 the majority affirmedthe trial court’s conclusion that the father had failed to reha-bilitate. Judge McLachlan dissented because the respondentdid not know he was the father until the termination pro-ceedings, rendering the failure to rehabilitate irrelevant.

Finally, In re Stephen M.129 reversed an order denying apetition to terminate where the court reconsidered facts foundon a prior neglect proceeding. The decision offers a coherentexplanation for In re Shamika F.,130 which held that findingson earlier proceedings are preclusive on later proceedings.Stephen M. observed that DCF conducts its work based onprior findings, and that the best interests of children anddesire for stability in establishing relationships with fosterparents all point to need for immediate review and finality ofsuch decisions. While the Appellate Court cannot limitShamika F. to its facts, the decision in Stephen M. provides agood roadmap for doing so when the occasion arises in theSupreme Court.

D. Criminal

Criminal matters compose a substantial portion of thecourt’s docket and likewise a number of the noteworthy cases


126 Id. at 724 (Borden, J., dissenting).127 107 Conn. App. 12, 944 A.2d 402, cert. granted, 287 Conn. 921, 951 A.2d

569 (2008).128 108 Conn. App. 839, 949 A.2d 1266, cert. denied, 289 Conn. 923, 958

A.2d 150 (2008).129 109 Conn. App. 644, 953 A.2d 668 (2008).130 256 Conn. 383, 773A.2d 347 (2001).

for this review. For instance, State v. Skidd131 held that thehate crimes statute132 was not unconstitutionally overbroad as it applied to “true threats.” In Edwards v. Commissioner of

Correction,133 the court concluded that a criminal defendantcannot aggregate the charges against him to create sufficientexposure to entitle him to a probable cause hearing. An inter-preter in State v. Tok134 was competent to translate for a deafand mute witness despite a few glitches in translation. Theunobjected-to glitches did not warrant Golding review.

The majority in State v. Robinson135 held that propertysurrounded by concrete walls and chain-link fence, but with-out a gate, was “enclosed” for purposes of the criminal tres-pass statute. Judge Bishop dissented, arguing that the plainlanguage of the statute meant the property was not enclosedabsent a gate or at least a “posted” sign. In another statutoryconstruction case, the court held in State v. Garcia136 thatGeneral Statutes Section 54-36a(c) permits a trial court tomake a forfeiture determination as a part of the criminal trial.Construing the Practice Book, State v. Wilcox137 held on awrit of error from the sentence review decision that PracticeBook Section 43-27 does not give an absolute right to a con-tinuance while a habeas petition is pending.

The meaning of “after” was dispositive in In re Kevin

K.,138 which involved whether General Statutes Section 46b-137(a) required the release of a juvenile for a secondinterview two days after the first. The majority held that thepurpose of the release is to assist the juvenile and his parentsto make an informed decision about consenting to the inter-view. Accordingly, whether a second release was necessary


131 104 Conn. App. 46, 932 A.2d 416 (2007).132 CONN. GEN. STAT. § 53a-181k.133 105 Conn. App. 124, 936 A.2d 716 (2008).134 107 Conn. App. 241, 945A.2d 558, cert. denied, 287 Conn. 920, 951 A.2d

570 (2008).135 105 Conn. App. 179, 937A.2d 717, cert. granted, 286 Conn. 902, 943

A.2d 1102 (2008).136 108 Conn. App. 533, 949 A.2d 499, cert. denied, 289 Conn. 916, 957 A.2d

880 (2008).137 105 Conn. App. 24, 936 A.2d 295 (2007), cert. denied, 286 Conn. 909,

944 A.2d 981 (2008).138 109 Conn. App. 206, 951 A.2d 39, cert. granted, 289 Conn. 930, 958 A.2d

159 (2008).

was fact-specific and, in this case, necessary. Judge Lavinedissented, agreeing that “after” was ambiguous but findingthe release adequate under the facts of the case.

In a rare case concerning a grand jury proceeding, In re

Judicial Inquiry No. 2005-02,139 the court held that there is arebuttable presumption that documents such as the applica-tion for the grand jury should not be disclosed. Accordingly,the panel should have conducted a hearing on disclosing theapplication, which both the state and the petitioner wantedfor discovery purposes.

In State v. Wade,140 the court held that there was insuffi-cient evidence to sustain a conviction of first-degreemanslaughter where the defendant gave a lethal combinationof drugs to the victim. The defendant had given this particularcombination of drugs to others without incident and experttestimony was required to explain the danger. Therefore, thedefendant did not have the necessary knowledge for “extremeindifference to human life,” a necessary element of the crime.

It would seem that one could not commit assault with adeadly weapon without carrying a deadly weapon. However,in State v. Ramirez,141 the court held such a verdict was notinconsistent where the defendant took a baseball bat from thevictim and used it to beat the victim.

The defendant in State v. Sitaris142 claimed instructionalerror in the standard jury instruction for interfering with apeace officer. The instruction stated that belief that the arrestwas unlawful provided no defense to use of force “which wasunjustified.” Although the defendant and Chief Judge Flynn indissent argued that this instruction assumed an element of thecrime (here, use of force), the majority held that the jury couldnot have been misled. Nonetheless, the court exercised itssupervisory powers to eliminate the instruction in the future.





142 106 Conn. App. 493, 942 A.2d 1071, cert denied, 287 Conn. 906, 950A.2d 1283 (2008).

Finally, in State v. Peloso,143 the court concluded that thetrial court did not create structural error by suggesting that theparties provide rebuttal witnesses as the judge indicated he did not know which side would benefit. The decision containsa useful discussion of what constitutes structural error and theability of judges to intervene in proceedings before them.

Although not a criminal case, criminal conduct wasalleged in Bridgeport Harbour Place I, LLC v. Ganim144 inwhich the plaintiff alleged that anyone wanting to contractwith the City of Bridgeport had to “pay to play,” i.e., bribeofficials to secure contracts. The plaintiff claimed such con-duct violated the antitrust act, but the court held that the com-plaint failed to allege facts showing that the bribery schemeaffected competition. Consequently, the trial court properlystruck the complaint.

E. Torts

Turning to torts, Chief Judge Flynn waxed philosophical-ly in Murphy v. Lord Thompson Manor, Inc.,145 (a/k/a theBridezilla case) where he noted: “We are born, some marryand we die. In this list of life events, it is only in marriage that we make choices.” The plaintiff ’s choice to have herwedding weekend extravaganza was thwarted when the inntold her a mere seven months ahead of the date that it wasdouble-booked. Even without evidence of egregious miscon-duct, the record was sufficient to support a finding of negli-gent infliction of emotional distress because, in a masterfulunderstatement, “[a] contract for wedding services creates arigorous expectation for contractual performance.”

In Salgado v. Commissioner of Transportation,146 the courtheld that the defective highway statuate requires that eachplaintiff give notice to the state of the claim. Because the indi-vidual’s notice to the state failed to mention damage to thetruck or name the trucking company, it was not reasonable to


143 109 Conn. App. 477, 952 A.2d 825 (2008).144 111 Conn. App. 197, 958A.2d 210 (2008).145 105 Conn. App. 546, 938 A.2d 1269, cert. denied, 286 Conn. 914, 945

A.2d 976 (2008).146 106 Conn. App. 562, 942 A.2d 546 (2008).

infer that the company would file a claim against the state.

Although the law on governmental immunity places a dif-ficult obstacle in the path of plaintiffs, they continue to lookfor ways around the immunity. In Grignano v. Milford,147 thecourt held that the duty to inspect is discretionary, evenwhere a regulation imposes the duty. The duty to warn ofknown hazards, however, is ministerial, although the recorddid not show the requisite knowledge for the plaintiff to sur-vive summary judgment in that case. On the other hand, inSoderlund v. Merrigan,148 because a police officer had amandatory duty to erase an arrest warrant when so ordered bya court, the duty was ministerial and governmental immunitydid not avail the officer for failing to do so.

A quartet of cases concerning attorneys ends this year’sreview. In O’Brien v. Superior Court,149 the plaintiff-in-errorwas sanctioned for violating several rules of professionalconduct when he sought a grand-jury investigation of a pros-ecutor. The prosecutor had offered an e-mail, which purport-edly contained attorney-client privilege, in evidence that wasmissing five crucial lines. Because the plaintiff-in-error hadnot objected to the document on the ground of privilege,pressing that claim and persisting in it when he had notreviewed the law on the subject violated Rules 3.1 and 3.3.Contrary to the trial court’s conclusion, though, the lawyerdid not violate Rule 1.2 by his inept pressing of the claimbecause it was clear that someone had altered the document.He also did not violate Rule 8.4 by invoking the grand jurystatute because while alternate means of relief existed toaddress the tampering, he was understandably taken aback bythe alteration of the evidence. Judge DiPentima dissented onthe last point because the plaintiff-in-error continued toimpugn the prosecutor’s integrity even when it was not nec-essary to do so.

In Somers v. Chan,150 a lawyer sought to foreclose a lien on


147 106 Conn. App. 648, 943 A.2d 507 (2008).148 110 Conn. App. 389, 955 A.2d 107 (2008).149 105 Conn. App. 774, 939 A.2d 1223, cert denied, 287 Conn. 901, 947

A.2d 342 (2008).150 110 Conn. App. 511, 955A.2d 667 (2008).

a former client’s ex-husband to collect an alimony arrearagethat his former client had assigned to him as payment for herattorneys’ fees. The assignment came about after the lawyersued his former client for the fees and they entered into a stip-ulated judgment. The lawyer, however, failed to inform thecollection court that the dissolution judge found his fees to beunreasonable. As the stipulated judgment (which was foundedon an incomplete disclosure) provided a basis for the judg-ment in the current appeal, an angry Appellate Court exer-cised its supervisory powers and vacated it.

In Lewis v. Slack,151 the court held that a complainantlacked standing to appeal from the dismissal of a grievancecomplaint for lack of probable cause. Citing commentary toRule 1.5, the court held in Gil v. Gil152 that a contingency fora post-judgment motion for contempt did not violate the pro-hibition on contingency fees in dissolution cases.


151 110 Conn. App. 641, 955A.2d 620, cert. denied, 289 Conn. 953, 961 A.2d417 (2008).

152 110 Conn. App. 798, 956 A.2d 593 (2008).

2008 CONNECTICUT TAX LAW DEVELOPMENTS

BY JOHN R. SHAUGHNESSY AND SCOTT E. SEBASTIAN*

The Connecticut tax story for 2008 is largely a reflectionof the worsening national economy and consequent reduc-tions in the State’s revenue projections. What had been amodest surplus projected for the fiscal year ending June 30,2009 had by the end of 2008’s Regular Session in May melt-ed completely away and with it the prospects for passage ofany significant tax legislation. As the year progressed, adeficit developed and has grown ever greater. At this writingthe projections for the current shortfall is $922 million and forthe biennium ending in 2011 an appalling $8 billion,1 morethan 20% of current spending. A Special Session which metin November to deal with the current budget deficit failed toenact any meaningful legislation other than an amnesty pro-jected to bring in $40 million of revenue. The 2009 RegularSession thus must address the current deficit in addition to itsregular work of fashioning a budget for 2010 and 2011.

Although the budget deficits and projections overshadowthe tax landscape for 2008, there are positive developments.We welcome Judge Henry S. Cohn, who has joined JudgesLevine and Aronson on the bench of the Administrative andTax Appeals Session, taking on the trial of Scholastic Book

Club v. Commissioner, a sales tax nexus case discussed inmore detail later in this article. The Department of RevenueServices has been busy also, improving the utility of its web-site and announcing that it has at long last begun sending totaxpayer representatives listed on the power-of-attorneycopies of billing notices sent to their clients.

I. LEGISLATIVE DEVELOPMENTS

As the financial situation deteriorated, the legislative lead-ership opted not to enact legislation carrying a positive fiscalnote, a decision which doomed almost all tax legislation still

2009] 2008 CONNECTICUT TAX LAW DEVELOPMENTS 35

* Both of the Hartford Bar.1 Christopher Keating, Officials Projecting Larger Deficits, HARTFORD

COURANT, Jan. 21, 2009, at A8.

pending at the close of the session. Nevertheless, someenactments were made by the Regular Session and the State’sfourth amnesty program was enacted, scheduled to occurfrom May 1, 2009 through June 25, 2009.

A. Corporate and Income Taxes

1. Corporation Business Tax

The General Assembly narrowed the applicability of theinsurance reinvestment tax credit of General Statutes Section38a-88a by restricting the universe of eligible taxpayers toonly those insurance businesses classified in NAIC categories524113 through 524298, which encompass entities providingdirect life, health and medical, property and casualty and titleinsurance, reinsurance providers, Canadian insurance agen-cies and brokerages, and third-party administrators of insur-ance and pension funds.2 The General Assembly also clari-fied that the film production tax credit found in GeneralStatutes Section 12-217jj applies to qualified productionexpenses or costs incurred on or after January 1, 2006, notJanuary 1, 2007 as originally provided.3 Legislation was alsoenacted requiring that captive insurance companies be taxedon a percentage of direct-written premiums.4

The General Assembly established a joint enforcementcommission to address the issue of classification of employ-ees in order to reduce or eliminate any adverse impact on theState’s receipt of income from withholding, workers’ com-pensation premiums, unemployment taxes, and other employer obligations.5 The commission was tasked to sub-mit a report to the Governor, coordinate civil prosecutionsrelated to misclassification, and advise the Chief State’sAttorney of any suspected criminal violations.

Governor Rell vetoed legislation that would have expand-ed the Section 12-217dd credit carryover period for donationsof open space land or public water supply land.6 The carry-


2 2008 Conn. Acts 08-82 (Reg. Sess.) (Connecticut Public Acts are referred tohereafter as “P.A.”).

3 P.A. 08-142 (Reg. Sess.).4 P.A. 08-127, § 14 (Reg. Sess.).5 P.A. 08-156 (Reg. Sess.).6 P.A. 08-179, § 4 (Reg. Sess.).

over remains at 15 years, rather than the proposed 25 years. In addition, as the deteriorating fiscal situation became clear-er near the end of the Regular Session, a number of corporateincome tax bills expired without being brought to a vote.These included proposals to provide corporate tax credits forgreen buildings7 and expand the annual limitation on the dig-ital animation production tax credit from $15 million to $25million.8

2. Personal Income Tax

The only enactment dealing with the individual incometax provides an exemption from a beneficiary’s gross incomefor all dividends and capital gains earned on contributions toa Homecare Option Program for the Elderly (HOPE)account.9 Interest accrued from HOPE contributions wasalready exempt. Bills related to the creation of a state EarnedIncome Tax Credit,10 establishment of a conservation taxcredit for individuals,11 and the grant of a credit for angelinvestors were never brought to a vote.12

B. Sales and Use Tax

In January, the Streamlined Sales Tax Commission, creat-ed under Public Act 07-4 of the June Special Session, issuedits report evaluating whether Connecticut should become afull member of the Streamlined Sales Tax Governing Board.In part because the existence of multiple tax rates and the $50clothing exemption would violate the Streamlined Sales TaxProject agreement, the report concluded that the state shouldnot take steps to join the Governing Board at this time andshould defer any further decision on membership untilCongress acts on pending legislation regarding taxing remotesellers.

There was no significant action undertaken by the GeneralAssembly to enact sales or use tax legislation. Legislation


7 HB 5798.8 HB 5843.9 P.A. 08-140 (Reg. Sess.). 10 HB 5245; SB 104; SB 163.11 HB 5137, § 1.12 SB 592, § 1.

exempting asphalt producers from the sales and use tax forsales to a purchaser who fulfills a paving contract was unan-imously reported by the Committee on Finance, Revenue andBonding, but was never brought to a vote.13 Also failing pas-sage was HB 5844, which proposed to allocate one-half ofthe hotel room occupancy tax to the municipalities where thehotels are located and impose a six percent sales tax oncharges for delivery services provided by messenger, couri-er, and moving companies.14

C. Practice, Procedure and Tax Administration

A bill related to taxpayer privacy rights and rights withrespect to the burden of proof in appeals of tax determinationsto the Superior Court was not enacted. The legislation wouldhave required the Commissioner to notify promptly any tax-payers whose return information might have been compro-mised or disclosed without authorization.15 The bill wouldalso have clarified that the burden of proof is the “preponder-ance of the evidence” standard rather than the “clear and con-vincing evidence” standard imposed by the Tax Session of theSuperior Court and required the Commissioner to provide to ataxpayer’s representative timely copies of any notice sent tothe taxpayer.16 Strongly supported by the Connecticut busi-ness community, the bill unanimously passed the Senate butfailed to reach the House floor on the final day of the session.

When it convened in Special Session on November 24, theGeneral Assembly in an effort to address the state’s mount-ing budget deficit enacted a tax amnesty program allowingtaxpayers to report and pay previously unreported liabilitieswithout penalty and with reduced interest.17 This is thefourth tax amnesty enacted since 1990, and this current ver-sion adopts eligibility criteria almost identical to the 2002amnesty program. Any person owing any Connecticut tax,


13 HB 5939. Lobbyists employed by the authors’ firm urged passage of this legislation.

14 HB 5844, §§ 1, 4.15 SB 702, § 1.16 Id. at § 2. See discussion of change in the Department’s practice regarding

notice, infra, at 46-47.17 P.A. 08-01, § 8 (Nov. 24 Spec. Sess.).

except the Motor Carrier Road Tax, for any period ending onor before November 30, 2008 is eligible to file an applicationwith the Department between May 1, 2009 and June 25, 2009if there has been no previous contact from the Department inconnection with the tax. Eligible applicants will have allapplicable civil penalties waived, will not be subject to crim-inal prosecution, and will, in addition, have their interestreduced by 25% if payment is made in full by June 25, 2009.In exchange for the amnesty, applicants will concede theirrights to administrative and judicial reviews and forfeit theirrights to apply for refunds or credits.

In a new twist to amnesty programs, the legislation authorizes any Connecticut city or town to legislatively adopta one-time municipal amnesty program with respect to out-standing taxes, assessments, fees, fines, or other payments.18

A municipality may enact amnesty for full or partial forgive-ness of interest, penalties, fines, costs, or other fees for a peri-od of up to 90 days during calendar year 2009.

D. Property Tax

Beginning October 1, 2008, a municipality may enact leg-islation to adjust real property values in assessment yearsbetween revaluations by making an average annual adjust-ment based on sales data instead of actually performing arevaluation.19 Adjustments must be based on fair marketsales data compiled during the 12 months preceding theassessment date. A municipality may not adjust values inexcess of five percent annually and need not immediatelynotify taxpayers of the adjustment. This new adjustmentmethodology may first be employed with respect to the listimmediately following a revaluation that occurs after October 1, 2005.

Other legislation requires Connecticut telecommunica-tions service providers to provide lists of all of their person-al property to the Commissioner of Revenue Services and theSecretary of the Office of Policy and Management on a town-


18 P.A. 08-02, § 5 (Nov. 24 Spec. Sess.).19 P.A. 08-185, § 12 (Reg. Sess.).

by-town basis, as well as submit to each municipality a spe-cific list of its property situated within that particular munic-ipality.20 The number of tax-exempt entities eligible for aproperty tax exemption on the date of acquisition of proper-ty was expanded to include bona fide war veterans’ organi-zations, Connecticut Grand Army posts, and the AmericanNational Red Cross.21 Further, a tax-exempt entity now qual-ifies for a property tax exemption if one of its principal pur-poses is preserving open space land.22

The property tax statutes were amended to provide that the postmark date is the date of filing of an annual declara-tion of tangible personal property.23 The General Assemblyextended the assessment cap of $500 to all antique motorvehicles, whether registered or not.24 A property tax cap pro-posed by Governor Rell, in which a municipality would havebeen able to increase its property tax levy by no more than acertain percentage of the total tax levied in the preceding fis-cal year, expired without being brought to a vote by theGeneral Assembly.25 Also, the House did not act upon legis-lation establishing a Payment in Lieu of Taxes (PILOT)Reserve Account within the General Fund which would havefunded state PILOT grants to municipalities on account oftax-exempt property.26

E. Estate and Gift Taxes

While there were no major legislative initiatives dealingwith either the estate or gift tax, the Commissioner ofRevenue Services and the Secretary of the Office of Policyand Management released the results of a study on theConnecticut estate tax mandated by P.A. 07-1 of the JuneSpecial Session.27 The study found that an increasing num-


20 P.A. 08-130, § 1 (Reg. Sess.). 21 P.A. 08-185, § 11 (Reg. Sess.). 22 P.A. 08-174, § 11 (Reg. Sess.). 23 P.A. 08-130, § 2 (Reg. Sess.). 24 P.A. 08-150, § 56 (Reg. Sess.). 25 HB 5028, § 1. Under the Governor’s bill, the initial cap would have limit

ed a tax levy increase for the fiscal year beginning July 2009 to 4.0 percent of thetotal tax levied in the prior year, 3.5 percent for the fiscal year beginning July 2010,and 3.0 percent for all years thereafter.

26 HB 5844, § 2.

ber of households are leaving Connecticut in favor of stateswith no estate tax or a less burdensome one. According todata from the Internal Revenue Service, the overwhelmingmajority of households leaving Connecticut during calendaryears 2002-2006 relocated to Florida, which does not have anestate tax. Connecticut tax practitioners who were surveyedin September 2007 reported that almost 53 percent of theirclients changed their Connecticut domicile primarily becauseof the state’s estate tax. According to the report, the averagegross estate of households leaving Connecticut was $7.5 mil-lion, equating to a potential loss of over $700,000 in estateand gift taxes for each emigrating household.

F. Miscellaneous Taxes

The municipal portion of the real property conveyancetax, originally scheduled to revert to 0.11% from 0.25% onJuly 1, 2008, will remain at its current rate, the sunset havingbeen extended to July 1, 2010.28 In the June Special Session,the General Assembly adopted legislation deferring a sched-uled one-half percent increase in the petroleum productsgross earnings tax.29 As a result, the current 7 percent rate isto remain in effect until July 1, 2013, when a further increaseto 8.1 percent is scheduled to occur. Effective July 1, 2008,the motor vehicle fuels tax on the sale or use of diesel fuelwas increased from $0.37 to $0.447 per gallon.30 Also, as ofJuly 1, 2008, sales of compressed natural gas, liquefiedpetroleum gas, and liquefied natural gas, previously exemptunder General Statutes Section § 12-458f, are no longerexempt,31 and the exemption for petroleum products used asfuel for a fuel cell also expired without renewal.32


27 CONNECTICUT DEPARTMENT OF REVENUE SERVICES, CONNECTICUT ESTATETAX STUDY – 2008 (Feb. 1, 2008).

28 P.A. 08-1 (June 11 Special Sess.).29 P.A. 08-2, §§ 1-2 (June 11 Special Sess.).30 CONN. GEN. STAT. § 12-458(a)(2), (h) (2008 supplement).31 CONN. GEN. STAT § 12-458f.32 CONN. GEN. STAT § 12-587(b)(2)(J).

II. LITIGATION AND ADMINISTRATIVE DEVELOPMENTS

A. Corporate and Income Taxes

The Supreme Court issued no decisions this year affectingincome taxes. However, on November 20, 2008, it did heararguments in the case of Achillion Pharmaceuticals, Inc. v.

Law,33 a decision of the Superior Court Tax Session renderedin February of 2008.34 This case involves construction of thestatutes permitting qualifying small businesses to exchangeresearch and development credits with the state for 65 centson the dollar.35 Achillion had applied for and been granted acash refund based on one-third of the credit created in 2003,which is not contested. In 2004 it sought a refund of theremaining two-thirds of the 2003 credit, which claim theCommissioner denied. In 2007 the Superior Court TaxSession denied the parties’ cross-motions for summary judg-ment.36 Trial was then held, and in 2008 Judge Aronson con-cluded that the one-third limitation of the credit statute effec-tively prohibits the later use of the remaining two-thirds ofthe credits for purposes of the exchange statute.

The Commission on Culture and Tourism issued final reg-ulations implementing the credit enacted in 2007 for rehabil-itation of certified historic structures for affordable housingor mixed use.37 The regulations provide a comprehensivestatement of the scope of the credit and the procedures forapplication.

In recognition of the fact that the 50% bonus depreciationprovided by the federal Economic Stimulus Act of 200838 isnot available for purposes of the corporation business tax, theDepartment of Revenue Services published an announcementdescribing the calculations necessary to account for the dif-


33 Docket No. SC18153.34 Achillion Pharmaceuticals, Inc. v. Law, 2007 Conn. Super. LEXIS 1266,

Super. Ct. No. CV 06 4012046 (J.D. New Britain, May 31, 2007.35 CONN. GEN. STAT §§ 12-217n and 12-217ee.36 J. Shaughnessy and C. Bromberg, 2007 Connecticut Tax Developments, 82

CONN. B. J. 37, 42-43 (2008).37 CONN. AGENCIES REGS. §§ 10-416b-1 through 10-416b-12. The credit was

adopted by P.A. 07-250, §§ 19-21 (Reg. Sess.) (effective June 14, 2007 and appli-cable to income years commencing after December 31, 2007).

38 Public Law 110-185, 122 Stat. 613 (2008).

ference between the federal and Connecticut bases of depre-ciable property for taxpayers who report on the basis of anoncalendar fiscal year.39

The decision in Kerrigan v. Commissioner of Public

Health,40 which overturned the state's ban on same-sex mar-riages, prompted the Commissioner to request the opinion ofthe Attorney General regarding the filing status of same-sexcouples for purposes of the income tax. He advised that samesex couples should be accorded essentially the same treat-ment as parties to other marriages.41 As a result, theDepartment revised the Federal/State Electronic FilingHandbook to instruct that the correct filing status for individ-uals who are parties to a civil union recognized underConnecticut law or who are in a marriage recognized underKerrigan should use the filing status, “Filing jointly forConnecticut only” or “Filing separately for Connecticutonly,” and to indicate that such returns should be electroni-cally transmitted under the “state-only” process.42 Otherforms and instructions will be revised accordingly.

B. Sales and Use Taxes

The Tax Session of the Superior Court issued opinions intwo sales tax cases during 2008. In the first of these, HVT,

Inc. v. Law, it addressed the issue whether motor vehicle reg-istration fees paid by a lessee are the gross receipts of the les-sor.43 The Department relied upon the Appellate Court deci-sion in Geckle v. Dubno,44 which held that property taxespaid by the lessee of an automobile were taxable grossreceipts of the lessor based on the fact that the lessor wasstatutorily required to list the property with the assessor ofeach town and pay the taxes assessed. The Geckle court con-sidered this to be unlike other expenses that lessees wererequired by contract to reimburse and concluded that the


39 Announcement AN 2008(7).40 289 Conn. 135, 957 A.2d 407 (2008).41 Op. Atty. Gen. 2008-18.42 Informational Publication IP 2008(25.1) (Nov. 1, 2008).43 2008 Conn. Super. LEXIS 1378, Super. Ct. No. CV 07 4012864 (J.D. New

Britain, May 27, 2008). The authors represent the taxpayer in this case. 44 2 Conn. App. 303, 478 A.2d 263 (1984).

reimbursements were part of the gross receipts of salebecause they were the legal responsibility of the lessor.45 InHVT, The taxpayer rested its position firmly on the SupremeCourt’s holding in AirKaman46 that a mere transfer ofexpenses cannot be part of the consideration for a sale.Further, unlike the expense in Geckle, the beneficiary of theregistration fee is the lessee, who cannot lawfully operate theleased vehicle unless the registration fee has been paid. Thecourt did not accept the argument of either party but decidedfor the Commissioner, holding that the provisions of the lease relating to capitalization obligated the lessee to pay thelessor the registration fee as part of the purchase price.Neither party had presented or argued this position to thecourt and the taxpayer has appealed.

In Sikorsky Aircraft Corp. v. Law,47 the Tax Court con-strued the exemption for materials, tools, fuel, machinery andequipment installed in an aircraft manufacturing facility andused predominantly for the manufacture, overhaul or rebuild-ing of aircraft or aircraft parts or components.48 The issueaddressed was whether use in manufacture included use inresearch and development (“R&D”), an issue which had beenaddressed in 2002 and resolved adversely to theCommissioner in Pratt & Whitney Div. v. Commissioner.49

Although it could have decided the case based solely on itsprior decision, the court took the time to review Sikorsky’smethods of operation and to explain again that where a tax-payer conducts R&D as part of its manufacturing operationrather than as a separate function, R&D is part of manufac-turing for purposes of the exemption. The Tax Courtobserved that the Commissioner’s method of allowing theexemption when property was charged to a manufacturingaccount and disallowing it when charged to an R&D account


45 The holding in Geckle v. Dubno was legislatively reversed by P.A. 85-435which exempted property taxes from the measure of sales tax.

46 AirKaman, Inc. v. Groppo, 221 Conn. 751, 607 A.2d 410 (1992).47 2008 Conn. Super. LEXIS 2081, Super. Ct. No. 06 4009194 (J.D. New

Britain, August 14, 2008).48 CONN. GEN. STAT. § 12-412(78).49 Super. Ct. Nos. CV 01 0509576 S, CV 01 0509577 S (J.D. New Britain,

pending).

was flawed because it was based merely upon bookkeepingand disregarded the substance of the transaction.

Scholastic Book Club v. Department of Rev. Svcs.,50 nowpending in the Tax Court, presents the issue whether teacherswho order, and assist students in ordering, books and class-room materials are representatives of the mail order taxpayerwho create nexus in the same manner as did the independentcontractors in Scripto, Inc. v. Carson.51 The taxpayer’s posi-tion is that the teachers assist students and are not represen-tatives of the taxpayer. The taxpayer’s brief also raises theissue whether the Commissioner can adopt the position thatteachers are such representatives without benefit of regula-tion and apply it retroactively. Trial was held in October andthe case is being briefed at this writing.

The only ruling issued by the Department addressed thequestion whether sales of electricity used at cell sites by acellular wireless telecommunications provider to producetelecommunications was exempt under Section 12-412(3)(A)of the statutes.52 That statute includes an exemption for elec-tricity delivered to consumers through lines at a meteredbuilding when 75% or more of the electricity is used in thefabrication of a finished product to be sold or in an industri-al manufacturing plant. Concluding that providing telecom-munications is the sale of a service, not tangible personalproperty, based primarily on the fact that the provision oftelecommunications is enumerated in the statutes as a taxableservice, the ruling determines that there is no fabrication andthat a cell site cannot qualify as an industrial plant and so theexemption does not apply.

C. Practice and Procedure

Noted in last year’s Developments article53 was the deci-sion of the Tax Session in Rainforest Café v. Com-

missioner,54 which held that the taxpayer’s failure to with-


50 Super. Ct. Nos. CV 4013027 S and CV 4013028 S (J.D. New Britain, pending).51 362 U.S. 207 (1960).52 Ruling 2008-1 (Dec. 15, 2008).53 J. Shaughnessy and C. Bromberg, supra note 36, at 48-49.54 2007 Conn. Super. LEXIS 1582, Super. Ct. No. CV 05 4004842 S (J.D. New

Britain, June 21, 2007).

hold and pay over tax as prescribed in General StatutesSection 12-430 constituted an intent to evade Chapter 219which tolls the three-year statute of limitations on assess-ment.55 The Supreme Court is scheduled to hear argumentsin that case during its February Term, 2009. The ConnecticutBusiness and Industry Association, Inc. has been granted theright to file a brief amicus curiae.

In October, Webster Bank filed an appeal of an assess-ment of penalties.56 The complaint alleges that the taxpayersfiled appeals of assessments of negligence penalties underChapter 229 which arose from a third-party payroll compa-ny’s failure to transmit funds in payment of the taxpayers’withholding obligations. The taxpayers allege that they paidthe amounts, with interest, as soon as they became aware ofthe error and complain that they were not themselves negli-gent and so should not be subject to penalty. Important, theyalso complain that they were denied the right to an adminis-trative hearing and a letter of determination stating the reasonfor denial of their appeal. As of this writing, theCommissioner has not filed an answer.

Policy Statement PS 2008(2), “Request for the Issuance ofa Ruling,” revokes and makes changes to Policy Statement PS 2000(7). The new version clarifies that rulings will not beissued to anonymous persons and states that the request andsupporting documents in a request for a declaratory rulingwill be made public without redaction of taxpayer data. Thedocument also adds a provision permitting filing of a rulingrequest by e-mail, but, although it continues to assert that aruling will generally be issued within 180 days after receipt,it deletes the requirement that DRS notify the taxpayer of anextension of time or the reasons therefor.

For several years, the Department has not sent to taxpayerrepresentatives copies of billing notices mailed to theirclients. Because of the short limitations periods applicable totax appeals, the resulting potential for compromise of a


55 See CONN. GEN. STAT. § 12-415(f).56 Webster Bank, N.A. v. Law, Super. Ct. No. CV 08 4018931 S (J.D. New

Britain, pending).

client’s rights became the source of some consternationamong practitioners. The Department indicated that theproblem lay with a limitation inherent in its computer pro-grams which it was working to overcome. However, theproblem continued and eventually a directive to theDepartment to provide notice to representatives was includ-ed in a bill which unanimously passed the Senate but died inthe House on the final day of the Regular Session along withnumerous other bills that were not brought to a vote.57

Nevertheless, at a meeting of the DRS with members of theBar and the Society of Certified Public Accountants onNovember 20, 2008, Deputy Commissioner Richard D.Nicholson announced that the computer problems had beenresolved and the Department would henceforth provide torepresentatives holding a power of attorney copies of billingnotices sent to their clients.

The Department also continues to improve the utility of itswebsite with the introduction of the Taxpayers Service Centerwhich now permits taxpayers and practitioners who establishsecure access to retrieve and review previously filed returnsand current information maintained by the Department. TheDepartment has also worked to improve efficiency in theadministration of its filing programs. It now requires taxpay-ers filing more than 25 W-2, 1099 and similar forms to filethem electronically through the Service Center.58

D. Property Tax

In White Sands Beach Ass’n v. Bombaci,59 the SupremeCourt denied on the basis of laches an the appeal of foreclo-sure tax liens in favor of the beach association. The associa-tion had been formed more than 80 years prior and had func-tioned as a quasi-municipal entity throughout that time. Thebasis of the appeal was an alleged defect in the association’sannexation of property over 50 years prior to the institutionof this action.


57 SB 702, § 2.58 Informational Publications IP 2008(16) and (17) (Oct. 1, 2008).59 287 Conn. 302, 950 A.2d 489 (2008).

Griswold Airport, Inc. v. Madison60 involved an assessor’sreclassification of open space for use as an airport when theowner obtained zoning board approval permitting use for res-idential condominiums. The Supreme Court held that theopen space classification is dependent upon actual use of theproperty and that neither Section 12-107e nor 12-504hexpressly or impliedly directs an assessor to consider theplanned or potential use of property in making an open spacedetermination.

The Supreme Court in Breezy Knoll Ass’n v. Morris61 waspresented with an assessor’s determination to value landsheld by a neighborhood homeowners’ association separatelyfrom the properties of the members of the association. Theproperties so assessed consisted primarily of tennis courts, aparking lot and undeveloped waterfront, each parcel soencumbered that its use could not be altered. Had the asso-ciation been a condominium association, General StatutesSection 47-204(b)(2) would have prohibited the assessorfrom assessing such common areas separately, the theorybeing that the value of such areas is properly included in thevalue of each separate condominium unit. No statuteaddresses directly the treatment of such parcels in the contextof a neighborhood association, but based on precedent fromConnecticut and other jurisdictions, in particular Pepe v.

Board of Tax Review,62 the court determined that easementsreduce the value of land and that land so encumbered that itcannot be sold has no value. The easement enhances thevalue of the property in whose favor the easement runs, andthe value should be reflected in the assessment of that parcelrather than the encumbered one.

The Appellate Court applied the doctrine of assemblage inSakon v. Glastonbury.63 There, the taxpayer owned threeparcels none of which singly was suitable for development asa commercial site but all three of which, taken together, wereso suitable. The trial court had determined the value of the


60 289 Conn. 723, 961 A.2d 338 (2008).61 286 Conn. 766, 946 A.2d 215 (2008).62 41 Conn. Sup. 457, 585 A.2d 712 (1990).63 111 Conn. App. 242 , 958 A.2d 801.

three properties as if they were a unit, and the AppellateCourt affirmed.

The Superior Court’s property tax decisions in 2008 dealprimarily with questions of valuation. However, one caserequired Judge Aronson to consider the history and purposeof Section 12-119 in fashioning an equitable remedy in a per-sonal property collection case.64 The taxpayer had movedfrom Bridgeport to North Carolina in July of 1992, registeredher truck there, sent the Connecticut registration plates to theConnecticut Department of Motor Vehicles and mailed theDMV receipt to the Bridgeport assessor’s office.Nevertheless, the assessor included the truck on the grand listof October 1, 1992. In 1999 the taxpayer moved from NorthCarolina to Stratford, Connecticut. In January of 2006, theBridgeport assessor notified the taxpayer of the 1992 delin-quency and, after refusing to accept the form of proof ofNorth Carolina residency that he had earlier requested, aclerk in the assessor’s office recommended that the taxpayerappeal the matter to the Board of Tax Appeals. The taxpay-er did this and, when her appeal was denied, she appealed tothe Superior Court, pro se, under General Statutes Section12-117a. Subsequently she obtained counsel, who soughtleave to amend the complaint to include a count underSection 12-119. This motion was granted, in part on the basis that the original complaint’s allegation of imposition oftax on property not in Connecticut at the time of assessmentfairly encompassed the requirement of that section. In themeantime, the City had levied on the taxpayer’s bankaccount.

The City contended that the one-year limitation underSection 12-119a had long since elapsed. However, JudgeAronson was unwilling to enforce a tax that had been illegal-ly assessed and then collected after a lapse of over fourteenyears. He noted that, because the tax had been collected bythe assessor, this action was properly laid in assumpsit, acause of action that predated the enactment of Section 12-119


64 Wiele v. Bridgeport, 2008 Conn. Super. LEXIS 3015, Super. Ct. No. CV4020814 S (J.D. Fairfield, Dec. 2., 2008).

and was subsumed into it,65 although the enactment didimpose on the making of a claim of assumpsit in property taxcases a one-year limitation period. Nevertheless, theSupreme Court has held that the limitation period in Section12-119 is “procedural and personal rather than substantive orjurisdictional and is thus subject to waiver.”66 The court thenheld that the assessor’s delaying of action over a thirteen-year period constituted such a waiver and entered judgmentfor the taxpayer.


65 Citing Connecticut Power & Light v. Oxford, 101 Conn. 383, 390-91, 126 A. 1 (1924) and Crystal Lake Clean Water Assn. v. Ellington, 53 Conn. App. 142,150, 728 A.2d 1145 (1999), the decision concludes that assumpsit is one of the“other remedies” mentioned in Section 12-119.

66 L. G. De Felice & Son, Inc. v. Wethersfield, 167 Conn. 509, 513, 356 A.2d144 (1975).

TORT DEVELOPMENTS IN 2008

BY JAMES E. WILDES*

There was no shortage of law to review during this pastyear. Due to the amount of decisions, not every case or devel-opment can be reviewed or discussed in depth. As in pastyears, the focus of the article is on substantive and procedur-al developments that directly or indirectly relate to tort law.Some areas of law, such as construction and professional lia-bility, are well represented; while other areas, includingapportionment and uninsured motorist, did not yield signifi-cant decisions.

I. ANIMAL LIABILITY

The Supreme Court in Auster v. Norwalk United

Methodist Church1 stated that a nonowner of a dog cannot beheld strictly liable for damage done by the dog to another inthe absence of evidence that the nonowner was responsiblefor maintaining and controlling the dog at the time that thedamage was done. Generally, such proof will consist of evi-dence that the nonowner was feeding, giving water to, exer-cising, sheltering or otherwise caring for the dog when the

2009] TORT DEVELOPMENTS IN 2008 51

* Of New Haven Bar.1 286 Conn. 152, 161-62, 943 A.2d 391 (2008). In Auster v. Norwalk United

Methodist Church, 94 Conn. App. 617, 618, 894 A.2d 329, cert. granted, 278 Conn.915, 899 A.2d 620 (2006), the defendant appealed after the jury returned a plaintiff ’sverdict in an action brought pursuant to General Statutes Section 22-357,Connecticut’s dog bite statute. An employee of the defendant lived with his familyand dog in an apartment in the defendant’s parish house. Id. at 619. The plaintiffarrived at the defendant’s premises and was bitten on her leg when the dog ranthrough an opening in a doorway. Id. The plaintiff claimed that the defendant wasliable as a “keeper” under Section 22-357. Id. The Appellate Court agreed with thedefendant that the trial court should have set aside the verdict since there was insuf-ficient evidence that the defendant was a “keeper.” Id. at 620-21. The Court stressedthat the defendant did not feed, water, or house the dog, and the dog did not roamaround the defendant’s premises. Id. at 621. The Court rejected the plaintiff ’s argu-ment that the defendant exercised control over the dog by placing restrictions onwhere and when the dog could go outside the apartment. Id. at 621-23. The Courtalso agreed with the defendant that the admission of evidence of the defendant’s lia-bility insurance was improper and prejudicial. Id. at 623-24. The plaintiff arguedthat evidence of insurance was relevant to show control of the premises. Id. TheCourt stated that the defendant was the undisputed owner of the premises, but own-ership of the premises did not establish that the defendant exercised control over thedog. Id. The judgment in favor of the plaintiff was reversed and the case remandedfor a new trial on the issue of common-law negligence. Id. at 624.

incident occurred.2 A landlord is not a keeper of a dog mere-ly because a landlord acquiesces in the presence of the dog onleased premises, or because a landlord has the authority torequire that the dog be removed from the premises, or evenbecause a landlord has the authority to require that certainconditions be placed on the use of the dog by its owner.3 TheCourt further stated that evidence of ownership of the prem-ises where the dog lives is not enough to hold a landlord, orother property owner, strictly liable, and this is true whetherthe dog’s owner is a live-in employee, a tenant, or a friend ofthe landlord.4 With respect to an evidentiary issue that aroseat trial, the Court held that the admission of evidence that thedefendant was covered by liability insurance was bothimproper and prejudicial.5

In Allen v. Cox6 the Supreme Court reversed the trialcourt’s granting of summary judgment in favor of the defen-dant cat owner. The defendants argued that since their cat hadnever attacked a person before it attacked the plaintiff, theyhad no duty to the plaintiff since the attack was not foresee-able.7 The Court held that knowledge of the cat’s viciouspropensities is not, in and of itself, sufficient to render theplaintiff ’s injuries foreseeable.8 However, the Court furtherheld that when a cat has a propensity to attack other cats,knowledge of that propensity may render the owner liable forinjuries to people that foreseeably result from such behaviorand, therefore, summary judgment should not have entered,under the facts presented, as there was a question of fact as towhether the plaintiff ’s injuries were foreseeable.9

In Mann v. Regan10 the plaintiff was bitten in the face by


2 Id. at 162.3 Id.4 Id. at 163-64.5 Id. at 167.6 285 Conn. 603, 604-05, 942 A.2d 296 (2008).7 Id. at 606-07.The determination whether there is a duty is a question of law

and the threshold inquiry is whether the specific harm alleged by the plaintiff wasforeseeable to the defendant. Id. at 610. The test is would the ordinary person in thedefendant’s position, knowing what he knew or should have known, anticipate thatharm of the general nature of that suffered was likely to result. Id.

8 Id. at 609.9 Id. at 617.10 108 Conn. App. 566, 569, 948 A.2d 1075 (2008).

the defendant’s dog while the defendant traveled out of stateand the dog remained at the plaintiff ’s house. After the juryreturned a verdict against the defendant based upon common-law negligence, the defendant appealed, arguing that the juryinstructions were improper.11 The Appellate Court rejectedthe defendant’s contention that the trial court’s usage of theword “dangerous,” rather than “vicious,” to describe thepropensities of the dog was improper since the adjective“dangerous” conveyed the same general principle as request-ed by the defendant.12

II. CONSTRUCTION

Pelletier v. Sordoni/Skanska Construction Co.13 returnedto the Supreme Court after a trial before a jury which had


11 Id. at 568.12 Id. at 576-77. The Appellate Court also found no error in the trial court’s

admitting into evidence a statement by the defendant’s daughter that the dog had bit-ten the defendant before and the defendant’s silence in response to the that statementunder the tacit admission exception to the hearsay rule. Id. at 570-571. The Courtfound that it was not unreasonable for the trial court to conclude that the circum-stances naturally called for a reply by the defendant and, therefore, the court did notabuse its discretion in admitting the statement and the defendant’s silence. Id. at 573-75.

13 286 Conn. 563, 945 A.2d 388 (2008). The trial court in Pelletier v.Sordoni/Skanska Construction Company, 264 Conn. 509, 512, 825 A.2d 72 (2003),granted the defendant general contractor’s motion for summary judgment as to thenegligence action brought by an employee of a subcontractor on the basis that therule enunciated by the Appellate Court in Ray v. Schneider, 16 Conn. App. 660, 548A.2d. 461, cert. denied, 209 Conn. 822, 551 A.2d 756 (1988), barred the claim. Rayheld that an employee of a subcontractor, unlike a member of the general public,could not bring an action for damages against the general contractor, regardless ofwhether the claim was based on vicarious liability, direct negligence, or some otherexception to the general rule of nonliability of a general contractor for the tortiousconduct of its independent contractor. Pelletier, supra, at 530. The Supreme Courtstated that the legislature had already spoken on the issue and, therefore, rejected therule in Ray. Id. The Court stated that the common-law rule of nonliability of gener-al contractors for the negligence of its independent contractors, was subject toexceptions, including if the work was unlawful, the cause of a nuisance, intrinsical-ly dangerous, if the contractee negligently employed an incompetent contractor, orif the contractee reserved control or interfered with the work. Id. at 518. The Courtfurther explained that the Workers’ Compensation Act created the principal employ-er limitation on the rule that a general contractor could be liable to an employee ofits subcontractor for its own negligence. Id. at 519. Pursuant to the principal employer doctrine, the contractor may become liable for workers’ compensationbenefits and, accordingly, not liable at common law to that same employee. Id. at519-20. The Court concluded that this legislation implicitly showed the legislature’sintent to preserve the right of an employee of a subcontractor to sue a general con-tractor who was not a principal employer and that the rule set forth in Ray was con-trary to the law. Id. at 526-27.

returned a verdict in favor of the plaintiff. The defendant gen-eral contractor argued, on appeal, that the trial court improp-erly concluded that it owed the plaintiff a nondelegable dutyof care under the building code to inspect all welds at thesite.14 The Court agreed with the defendant, concluding thatthe defendant did not have a nondelegable duty to inspect allwelds, but, rather it had a duty to “provide” such inspectionsand that it did not have a duty to inspect welds fabricated onthe premises of the fabrication shop when the fabricator main-tained an agreement with an approved independent inspectionor quality control agency to conduct periodic shop inspec-tions.15 The plaintiff presented several arguments in his crossappeal. The plaintiff ’s principal argument was that the trialcourt erred in declining to give jury instructions on common-law negligence.16 The Court found, as a matter of law, that the defendant had no legal duty to the plaintiff under princi-ples of common-law negligence because the plaintiff's injurywas not foreseeable; specifically, no ordinary person in thedefendant's position, knowing what it knew or should haveknown, could have foreseen that the plaintiff would be injuredbecause the defective weld had not been inspected.17

In Archambault v. Soneco/Northeastern, Inc.18 the plain-tiff, an employee of a subcontractor Soneco/Northeastern,Inc. (Soneco), was injured on a construction site when atrench that he was excavating collapsed.19 The plaintiffobtained a verdict against the defendant general contractor,Konover Construction Corporation (Konover), and the defendant appealed from the judgment rendered thereon,raising several important issues.20 Konover first argued that


14 Pelletier, supra note 13, at 575-76.15 Id. at 581-82.16 Id. at 589-90.17 Id. at 594-95.18 287 Conn. 20, 946 A.2d. 839 (2008).19 Id. at 22. The trial court granted Soneco’s motion for summary judgment as

to the plaintiff ’s claims against it since the plaintiff ’s claim was barred by the exclu-sivity provision of the Worker’s Compensation Act (Act) and since the claim did notfall under the Act’s exception; namely, where the injuries were inflicted by anotheremployee identified as employer’s alter ego and where the other employee intendedthe act and the injurious consequences thereof or knew that the injuries were sub-stantially certain to result from the intentional acts. Id. at 26. See Suarez v. DickmontPlastics Corp., 242 Conn. 255, 275, 280, 698 A.2d. 838 (1997).

20 Archambault, supra note 18 at 22-23.

the trial court improperly precluded evidence and argumentas to Soneco’s alleged negligence on the basis that Sonecowas not a party.21 The Supreme Court stated that it had pre-viously determined that, in general, a defendant has the rightunder a general denial to introduce evidence that the negli-gence of another was the sole proximate cause of the plain-tiff ’s injury.22 The Court adopted the principle that a defen-dant is entitled to assert, under a general denial, that the neg-ligence of the plaintiff ’s employer who is not a party to theaction is the sole proximate cause of the plaintiff ’s injuriesand, accordingly, ordered a new trial.23 Konover next arguedthat the trial court erred in refusing to charge on the doctrineof superseding cause.24 The Court disagreed with the defen-dant, holding that Connecticut had abandoned the supersed-ing cause doctrine and, consequently, the defendant was notentitled to its requested charge.25 Konover’s last argumentwas that the trial court improperly instructed the jury thatKonover had a nondelegable duty to the plaintiff to ensure asafe work site that precluded the jury from consideringSoneco’s negligence in determining liability.26 The Courtnoted that, as a general rule, employers, including generalcontractors as employers of independent subcontractors, arenot liable for the negligence of its independent contractors.27

The Court noted that there were exceptions to the generalrule, including where the general contractor reserved theright of control over the subcontractor or the manner of doingthe work or assumed the right of control.28 The Court notedthat Konover’s overall responsibility for safety on the worksite did not necessarily translate into a nondelegable duty.29

The Court further stated that Konover’s safety manual was


21 Id. at 30.22 Id. at 33. See, e.g. Bernier v. Nationwide Fence Co., 176 Conn. 622, 629-30,

410 A.2d 1007 (1979).23 Archambault, supra note 18 at 37, 41.24 Id. at 41.25 Id. at 44. In Barry v. Quality Steel Products, Inc., 263 Conn. 424, 820 A.2d.

258 (2003), the Supreme Court established that the doctrine of superseding causewas limited to situations in which an unforeseeable intentional tort, force of natureor criminal event supersedes the defendant’s tortious conduct.

26 Id. at 45.27 Id. at 53.28 Id. at 53-54.29 Id. at 54.


not the source of a contractual or legal duty to provide a safework site and was merely an informational tool.30 The Courtconcluded, as a matter of law, that Soneco exercised controlover excavation of the trenches, rather than Konover, and,therefore, the jury charges were improper.31

In Royal Indemnity Company v. Terra Firma, Inc.32 theprincipal issue was whether Konover ConstructionCorporation (Konover), the general contractor, was entitledto coverage as an “additional insured” under an insurancepolicy procured by Soneco/Northeastern, Inc. (Soneco), asubcontractor, pursuant to a construction agreement betweenKonover and Soneco. The agreement provided: (1) thatSoneco would indemnify Konover for damages caused, inwhole or in part, by the negligence of Soneco; and (2) thatSoneco was required to procure general liability insuranceand name Konover as an additional insured.33 The plaintiffdisclaimed both the duty to indemnify and the duty to defendKonover and brought the instant declaratory judgment actionto determine whether Konover was an additional insuredunder the policy it issued to Soneco.34 The plaintiff ’s policyprovided, inter alia, that an insured included any person ororganization that Soneco was required by a written agree-ment to name as an insured but only with respect to liabilityarising out of Soneco’s work.35 The plaintiff insurer arguedthat Konover was not an additional insured since its liabilitydid not arise out of Soneco’s work.36 Conversely, Konovercontended that the trench that collapsed was Soneco’s worksince it was part of what Soneco’s was obligated to do underits contract with Konover.37 The court remarked that it was

30 Id. at 55. The Court noted that if safety manuals were construed as broadlyas the plaintiff suggested, general contractors would have minimal incentive to pub-lish them. Id. at 55, footnote 19.

31 Id. at 54.32 50 Conn. Supp. 563, 564, 948 A.2d. 1101 (2006), affirmed, 287 Conn. 183,

947 A.2d 913 (2008). In a per curiam opinion the Supreme Court adopted the trialcourt’s memorandum of decision as a statement of the facts and the applicable law.Id. at 189. This case arises from the same facts as Archambault, supra note 18.

33 Id. at 565.34 Id. at 566.35 Id. at 568-69.36 Id. at 570.37 Id. at 574.

generally understood that it was sufficient to show only thatthe accident or injury was connected with, had its origins in,grew out of, flowed from, or was incident to the occurrence,in order for liability for an accident or an injury to arise outof an occurrence.38 The court found that the trenching waspart of Soneco’s work and the injuries to the employees ofSoneco occurred in the performance of that work.39 Thecourt further commented that General Statutes Section 52-572k prohibits clauses purporting to require subcontractors toindemnify and hold harmless general contractors for the gen-eral contractor’s negligence, but that this section does notprohibit general contractors from being included as an addi-tional insured.40 The court found that Konover was an addi-tional insured under the policy issued by the plaintiff.41

III. DAMAGES

In Wasko v. Farley42 the Appellate Court affirmed the trialcourt’s refusal to charge the jury on damages resulting fromadditional costs incurred by the plaintiff ’s dental practice;specifically, the plaintiff claimed that due to her injuries shewas required to hire an additional dental assistant. The Courtstated that the plaintiff brought the action in her individualcapacity and that she was not entitled to recover damagesincurred by a limited liability company of which she was amember.43 The Court also rejected the plaintiff ’s claim thatthe trial court should not have instructed the jury on mitiga-tion of damages since the defendants did not plead mitigationof damages as a special defense. The Court dismissed theplaintiff ’s argument, without any substantive analysis, notingthat the plaintiff failed to set forth any legal analysis as towhy mitigation needs to be specially pled.44

The United States Supreme Court in Exxon Shipping


38 Id.39 Id. at 573-7440 Id. at 575.41 Id.42 108 Conn. App. 156, 167-68, 168, 947 A.2d 978, cert. denied, 289 Conn.

922, 958 A. 2d 155 (2008).43 Id. at 170-71.44 Id. at 171-72.

Company v. Baker45 reviewed a jury award for punitive dam-ages in the exercise of its federal maritime common lawauthority.46 The Court held that given the need to protectagainst the possibility of awards that are unpredictable andunnecessary, either for the purpose of deterrence or measuredretribution, a 1:1 ratio is a fair upper limit in maritimecases.47 The Court adopted the District Court’s calculation of the total relevant compensatory damages of $507.5 mil-lion, vacated the judgment and remanded the case to theCourt of Appeals to remit the punitive damages award.48

Although Peterson v. Woldeyohannes49 arose out of abreach of a partnership agreement and not within the tortcontext, it is procedurally noteworthy. Notwithstanding being defaulted for failing to comply with a discovery order,at the time of the hearing in damages the court permitted thedefendant to file a notice of defenses under Practice BookSection 17-34(a).50 The trial court found for the defendant,despite the entry of a default against the defendant, holding


45 554 U.S., 128 S.Ct. 2605, 171 L.Ed. 2d 570 (2008). A brief summary of thefacts are that on April 24, 1989 the supertanker Exxon Valdez grounded on the BlighReef off the Alaskan coast, breaking its hull and spilling 11 million gallons of crudeoil into Prince William Sound. The tanker’s captain according to experts possesseda blood alcohol level of three times the legal limits.

46 Id. The United States Supreme Court has previously stated that “few awards exceeding a single-digit ratio between punitive and compensatory damages,to a significant degree, will satisfy due process.” State Farm Mut. Automobile Ins.Co. v. Campbell, 538 U.S. 408, 425, 123 S.Ct. 1513, 155 L.Ed 2d 585 (2003). It isnoted that the Excessive Fines Clause of the Eighth Amendment does not apply topunitive damages. Browning-Ferris Industries of Vt., Inc..v. Kelco Disposal, Inc.,492 U.S. 257, 275, 109 S.Ct. 2909, 106 L.Ed.2d 219 (1989).

47 Exxon Shipping Co., supra note 45.48 Id. The jury had awarded $5 billion in punitive damages against Exxon and

the Court of Appeals for the Ninth Circuit twice remanded for adjustments in lightof due process considerations before ultimately itself remitting the award to $2.5 bil-lion. Id.

49 111 Conn. App. 784, 961 A.2d 475(2008). 50 Practice Book §17-34(a) provides: “In any hearing in damages upon default,

the defendant shall not be permitted to offer evidence to contradict any allegationsin the plaintiff's complaint, except such as relate to the amount of damages, unlessnotice has been given to the plaintiff of the intention to contradict such allegationsand of the subject matter which the defendant intends to contradict, nor shall thedefendant be permitted to deny the right of the plaintiff to maintain such action, norshall the defendant be permitted to prove any matter of defense, unless written notice has been given to the plaintiff of the intention to deny such right or to provesuch matter of defense.” This rule derives from General Statutes § 52-221(a), therelevant portion of which mirrors, almost verbatim, the text of the rule.

that no oral partnership had been formed between the par-ties.51 The Appellate Court set forth the standards followingthe entry of a default, noting that the default constitutes anadmission of liability by the defendant and that at the hearingin damages the plaintiff must prove only the amount of dam-ages.52 However, under Practice Book Section 17-34(a), if atimely written notice is furnished to the plaintiff, the defen-dant may present evidence contradicting the allegations in the complaint, and if the defendant sustains her burden ofproof, the plaintiff is entitled to nominal damages only.53

The Appellate Court found error in two respects: (1) the trialcourt should have awarded nominal damages, and (2) the trialcourt should not have permitted the defendant to avail herselfof Practice Book Section 17-34(a) where a disciplinarydefault had been entered against her for failure to complywith a discovery order until she had demonstrated compli-ance with the underlying order.54

IV. DEFAMATION

In Mercer v. Cosley,55 the plaintiff, an inmate serving aforty-five year sentence for felony murder, brought a libelclaim against several television broadcasters and theiremployers. The trial court granted the defendants’ motion forsummary judgment, finding that the defendants’ special


51 Peterson, supra note 49, at 790.52 Id.53 Id. at 790-91. As a reminder, the Supreme Court in Right v. Breen, 277

Conn. 364, 365-66, 890 A.2d 1287 (2006), in reversing the Appellate Court, heldthat a plaintiff in a negligence action is not entitled to an award of nominal damages,thereby making the defendant potentially liable for costs, when the defendant admitsliability but denies having caused the alleged injury, and the tier of fact thereafterconcludes that the plaintiff failed to prove that he or she suffered any injury as aresult of the defendant’s conduct.

54 Peterson, supra note 49, at 791-93.55 110 Conn. App. 283, 285, 955 A.2d 550 (2008). Despite the plaintiff ’s alle-

gations in his complaint that the action sounded in libel per se, since neither the par-ties nor the trial court discussed libel per se, the Appellate Court did not considerwhether the news broadcast was libel per se. Id. at 559-560. “The Court briefly sum-marized the law on libel per se: A plaintiff must show that the libel, on its face, either charged some impropriety in the plaintiff ’s business or profession or that itcharged a crime of moral turpitude.” Id. Libel per se is a libel which on its face isdefamatory and is actionable without proof of actual damages. Id. at 559, footnote9. It is a question for the court whether the publication is libelous per se. Id.

defenses of substantial truth and the fair reporting privilegewere applicable.56 The Appellate Court preliminarilyremarked that televised news broadcasts, which are reducedto permanent form, similar to prepared manuscripts in radioaddresses, give rise to an action in libel, or a written defama-tion, as opposed to slander, or an oral defamation.57 TheCourt affirmed the granting of the summary judgment, hold-ing that the statements in the broadcasts were true, either sub-stantially or literally.58

V. DEFECTIVE HIGHWAY

In Read v. Town of Plymouth59 the plaintiff fell into amoveable dumpster at the town waste transfer station whileattempting to discard waste and subsequently brought a mul-tiple-count complaint setting forth causes of action sounding,inter alia, in nuisance, under General Statutes Section13a-149, negligence, and under Section 52-557n. The trialcourt granted the defendants’ motion to strike the countsalleging nuisance, negligence and Section 52-557n since the defective highway statute provided the exclusive remedyagainst the town.60 On appeal, the Appellate Court acceptedthe plaintiff ’s argument that he was permitted to plead in the alternative since the defendants were contesting that the area was a public highway.61 The Court emphasized thata plaintiff is allowed to adduce alternative, and even inconsis-tent, theories of liability against one or more defendants in asingle complaint.62

The notice provisions found in General Statutes Section13a-144, Connecticut’s defective highway statute, were cen-tral to the disposition of Salgado v. Commissioner of

Transportation.63 The plaintiff Arrow Trucking Company’s


56 Id. at 289.57 Id. at 297.58 Id. at 305. The Appellate Court did not reach whether the fair reporting

privilege applied.59 110 Conn. App. 657, 659-60, 955 A.2d 1255, cert. denied, 289 Conn. 955,

961 A.2d 421 (2008).60 Id.61 Id. at 661-62.62 Id.63 106 Conn. App. 562, 942 A.2d 546 (2008).

(Arrow) trailer sustained property damage and, as a result, itbrought a claim against former commissioners of transporta-tion under the defective highway statute.64 The named plain-tiff Salgado, who was operating the tractor trailer at the timeof the accident, provided written statutory notice of his per-sonal claim to the commissioner of transportation, but theplaintiff Arrow did not provide notice of its claim.65 TheAppellate Court stated that each injured party must place thecommissioner on notice that it intends to claim damages, andsince the plaintiff Arrow had failed to do so, the trial courterred in denying the defendants’ motion to dismiss due tolack of subject matter jurisdiction.66

VI. GOVERNMENTAL IMMUNITY

In Soderlund v. Merrigan67 the Appellate Court reversedthe trial court’s granting of the defendants’ motion for sum-mary judgment, holding that the defendants’ failure to vacatean arrest warrant is a ministerial act and mandatory and, assuch, the plaintiff ’s claim was not barred by the doctrine ofgovernmental immunity. The plaintiff brought a negligenceaction against the defendant police officer and the defendantCity of Meriden claiming that the defendants were negligentin failing to remove an arrest warrant for her from a statewidepolice computer system.68 The Court stated that, generally, amunicipal employee is liable for the misperformance of min-isterial acts, but has a qualified immunity in the performanceof governmental acts which are supervisory or discretionaryin nature.69 The Court stated that the defendants should havetaken steps to vacate the warrant because it was at the direc-tion of the court.70 The Court expressed no opinion as towhether the plaintiff could prove that the defendants were


64 Id. at 563-64.65 Id. at 564-65.66 Id. at 568-71. The Court was neither impressed with the fact that the named

plaintiff and the plaintiff Arrow shared the same counsel, nor with the fact that thedefendants could have inferred from the named plaintiff ’s notice that there was dam-age to the plaintiff Arrow’s trailer. Id.

67 110 Conn. App. 389, 400-01, 955 A.2d 107 (2008).68 Id. at 390.69 Id. at 394-95.70 Id. at 400.

negligent in failing to vacate the warrant.71

In Grignano v. City of Milford72 the Appellate Courtaffirmed the trial court’s granting of the defendant’s motion forsummary judgment since the plaintiff’s claim was barred by the doctrine of governmental immunity. The plaintiffclaimed injuries as a result of a fall on an uneven patio stone.73

The Court stated that since the parties assumed that the immu-nity set forth in General Statutes Section 52-557n(a)(2)(B) isthe same as a municipal employee’s qualified immunity fordiscretionary acts at common law, the Court assumed, withoutruling, that Section 52-557n(a)(2)(B) codified the commonlaw.74 Not withstanding the general rule that the exercise ofduties involving inspection and maintenance are deemed dis-cretionary acts and, as such, entitled to governmental immuni-ty, the plaintiff contended that two city ordinances removed alldiscretion from the defendant’s performance of its duties toinspect, maintain and warn.75 The Court found that the ordi-nance addressing duties to inspect and maintain did not con-vert a discretionary duty into a ministerial function.76

However, the Court concluded that the ordinance regarding theduty to warn actually prescribed the manner and timing of thewarning: namely, by posting a notice or fence or barricade; bylighting the condition at night; and by issuing the warningimmediately upon discovery.77 Nonetheless, the Court foundfor the defendant since the plaintiff failed to establish that thedefendant had notice of the defect and, accordingly, the defen-dant had no duty to perform its ministerial warning function.78

VII. OFFER OF JUDGMENT

Stiffler v. Continental Insurance Company79 held that inan action to recover underinsured motorist benefits, offer of


71 Id. at 401.72 106 Conn. App. 648, 650, 943 A.2d 507 (2008).73 Id.74 Id. at 653.75 Id. at 655-56.76 Id. at 656.77 Id. at 657-58.78 Id. at 656, 660.79 288 Conn. 38, 39-40, 950 A.2d 1270 (2008).

judgment interest awarded pursuant to General StatutesSection 52-192a(b)80 is not based upon the amount of the juryverdict, rather it is based on the amount of the judgment afterthe trial court orders a remitter due to the limits of the plain-tiff ’s underinsured motorist coverage. The Supreme Courtobserved that the underlying purpose of underinsuredmotorist coverage is to provide an insured who is injured with the same resources he would have had if the tortfeasorhad liability insurance equal to the amount of the insured’suninsured/underinsured motorist coverage and that underin-sured protection is not intended to provide greater recoverythan would have been available from the tortfeasor.81 TheCourt stated that to allow a plaintiff to recover offer of judg-ment interest on the verdict amount, an amount that wasexcessive as a matter of law under General Statutes Section38a-336(b),82 would violate the public policy that it wasintended to further.83

In Monti v. Wenkert84 the plaintiffs in a medical malprac-tice action filed separate offers of judgment to the defendantphysician and to the defendant doing business under a ficti-tious name, each in the same amount. The defendant con-tended that the threshold for the offer of judgment interest toattach was the total of the two offers of judgment.85 TheSupreme Court stated that a fictitious or assumed name doesnot create a separate legal entity, that the designation is mere-ly descriptive of the person or corporation that does businessunder some other name and that the individual is personallyliable for the torts and contracts of the business.86 The Courtfound that under the above rules, the defendant was individ-ually liable for the entire verdict, and, since the verdict


80 Public Act 05-275 which amended General Statutes §52-192a by substitut-ing “offer of compromise” for “offer of judgment” did not apply to the subject caseas the action accrued prior to October 1, 2005.

81 Stiffler, supra note 79, at 48-49.82 General Statutes § 38a-336(b) imposes a cap on the amount recoverable and

the trial court pursuant to this section granted the defendant’s motion for remittiturto the limits of the plaintiff ’s underinsured motorist coverage. Id.

83 Id. at 49.84 287 Conn. 101, 134, 947 A.2d 261 (2008).85 Id.86 Id. at 135.

exceeded the offer of judgment, the trial court correctlyawarded offer of judgment interest.87

VIII. PREMISES LIABILITY

In Gargano v. Azpiri88 the plaintiff, an electrician’s assis-tant, fell through a hole in an unoccupied house that wasbeing renovated. The defendants obtained summary judg-ment in their favor and the Appellate Court reversed. Onappeal, the plaintiff first argued that the trial court was cor-rect in determining that she was an invitee.89 The Courtnoted that ordinarily the status of a person upon the propertyof another is a question of fact, but where the facts essentialto such determination are not in dispute, then the status maybe determined as a matter of law.90 The Court found that itwas undisputed that the plaintiff was invited onto the proper-ty for a purpose directly or indirectly connected with thebusiness dealings of the defendants and, therefore, as a mat-ter of law, the plaintiff was a business invitee.91 The plain-tiff next argued that the trial court improperly concluded thatthe defendants owed no duty to the plaintiff since the plain-tiff knew of the hole.92 The Court stated that the defendantsdid not owe the plaintiff a legal duty to warn of an obviouscondition that the plaintiff had actual knowledge of.93

However, the Court held that the possessor of land owes aninvitee two distinct duties: the duty to inspect and maintainthe premises in a reasonably safe condition and the duty towarn of dangers that the plaintiff could not reasonably beexpected to discover.94 The Court found that the defendantswere not entitled to summary judgment with respect to theduty to inspect and maintain the premises.95

The defendants in DeOliveira v. PGM Land Associates,


87 Id.88 110 Conn. App. 502, 504 (2008).89 Id. at 505.90 Id. at 506.91 Id. at 507.92 Id. at 507-08.93 Id. 508-09.94 Id. at 510.95 Id. at 510-11.

L.P.96 faired better than the defendants in Gargano in suc-cessfully arguing that summary judgment was appropriate. InDeOliveira, the plaintiff fell from a second-floor balcony dueto an alleged structural defect in the premises.97 TheAppellate Court resolved the case against the plaintiff statingthat the plaintiff failed to show a genuine issue of material factas to the issue of causation.98 The Court noted that the plain-tiff testified that he had no memory of the accident or his con-duct immediately preceding his fall, there were no eyewit-nesses to the accident, and that although the plaintiff ’s experttestified that the railing did not comply with the buildingcode, the expert could not opine how much force was appliedto the railing at the time of the accident or whether the codeviolation contributed to the failure of the railing.99 The Courtfurther noted that without additional evidence, the plaintiffcould not prove that the guardrail would not have failed butfor the alleged defects and, therefore, the cause of the failureof the guardrail was based on mere conjecture and surmise.100

IX. PRODUCT LIABILITY

Recently, the United States Supreme Court released adecision in Riegel v. Medtronic, Inc.,101 which may have farreaching implications as to viability of tort claims based uponState law. The issue was whether the preemption clause in the Medical Device Amendments of 1976, 21 U.S.C. Section360k, bars common-law claims challenging the safety andeffectiveness of a medical device given premarket approvalby the Food and Drug Administration (FDA).102 The deviceat issue was a catheter marketed by the defendant-respondent


96 105 Conn. App. 369, 939 A.2d 2 (2008).97 Id. at 371-72.98 Id. at 374-75.99 Id. at 375, 378.100 Id. at 378-79.101 128 S.Ct. 999, 169 L.Ed.2d 892 (2008). Law Professor Jeffrey Rosen

recently observed that there has been an ideological sea change at the UnitedSupreme Court: A generation ago, progressive and consumer groups petitioning theCourt could count on favorable majority opinions written by justices who possessedbig business skepticism; however, the current justices have a pro-business outlook as exhibited in the Riegel v. Medronic suit. Jeffrey Rosen, Supreme Court Inc., TheNew York Times Magazine, March 16, 2008, at 38, 40-41.

102 Riegel, supra note, at 101.

that had received premarket approval from the FDA.103 Thepatient brought suit asserting claims of strict liability, breachof implied warranty and negligence after the catheter rup-tured while being inflated in the patient’s coronary artery inan attempt to dilate the artery.104 The Court held that staterequirements were preempted only to the extent that they aredifferent from, or in addition to, the requirements imposed byfederal law and that Section 360k does not prevent a Statefrom providing a damages remedy for claims based on a vio-lation of FDA regulations, wherein the state duties in such acase parallel, rather than add to, the federal requirements.105

The Court affirmed the judgment in favor of the defendant-respondent.

Breen v. Synthes-Stratec, Inc.106 addressed whether thetrial court should have instructed the jury with respect tocomment (k) to Section 402A of the Restatement (Second) ofTorts107 and the learned intermediary doctrine because thesedoctrines where inapplicable to the type of medical deviceinvolved in the case, namely, dynamic condylar screw platesimplanted in the plaintiff during an open reduction and inter-nal fixation of his femur. The plaintiff sued the defendant inproduct liability after two plates that had been implanted intohis left leg broke.108 The Appellate Court stated that underHurley v. Heart Physicians, P.C.109 comment (k) was not lim-ited to prescription drugs but was also applicable to medicaldevices, such as the plates surgically inserted into the plain-tiff ’s body, and that the learned intermediary doctrine wasproperly applied to cases involving prescription implantablemedical devices.110


103 Id.104 Id.105 Id.106 108 Conn. App. 105, 108-09, 947 A.2d 383 (2008). 107 Comment (k) provides although some products are incapable of being made

safe, such products, properly prepared, and accompanied by proper directions andwarnings, are not defective or unreasonably dangerous. Vitanza v. Upjohn, 257Conn. 365, 376-77, 778 A.2d 829 (2001).

108 Breen, supra note 106, at 108-09.109 278 Conn. 305, 898 A.2d 777 (2006).110 Breen, supra note 106, at 113-14.

X. PROFESSIONAL LIABILITY

In Ackerly and Brown, LLP v. Smithies111 the plaintiff lawfirm filed a collection action against a former client and thedefendants filed a counterclaim, alleging legal malpractice.The trial court granted the plaintiff's motion in limine to pre-clude the introduction of any evidence of legal malpracticesince the defendants failed to disclose an expert.112 TheAppellate Court stated that in a legal malpractice case experttestimony is generally necessary to establish the standard ofcare and that the conduct legally caused the injury.113 TheCourt noted a limited exception to this general rule: wherethere is an obvious and gross want of care and skill that theneglect is obvious to even a lay person.114 The basis of themalpractice claim was that a partner in the plaintiff ’s firmwas negligent in making certain tactical decisions, includingwhether to file a motion for summary judgment, the ques-tions asked during voir dire, the questions asked of witness-es, whether to object to evidence and the substance ofrequests to charge.115 The Appellate Court agreed with thetrial court that the alleged negligence required expert testi-mony to assist the trial court, which was the trier of fact, indetermining the standard of care and whether there was abreach thereof.116

Summary judgment in favor of the defendant attorney wasupheld in Viola v. O’Dell.117 The defendant failed to file atimely brief with the superior court resulting in the dismissalof the plaintiffs’ appeal of an adverse board of zoning deci-sion.118 The sole issue on appeal was one of causation;namely, the plaintiffs were required to establish in their


111 109 Conn. App. 584, 585-86, 952 A.2d 110 (2008). The elements to estab-lish the legal malpractice claim are (1) the existence of an attorney-client relation-ship; (2) the attorney’s wrongful act or omission; (3) causation; and (4) damages. Id.at 586, footnote 2.

112 Id. at 586-87.113 Id. at 588.114 Id.115 Id. at 589.116 Id. at 589-90. The Court distinguished the case before it from where the trial

judge’s knowledge of the rules of practice eliminates the necessity of expert opin-ion. See Dubreuil v. Witt, 271 Conn. 782, 860 A. 2d 698 (2004).

117 108 Conn. App. 760, 950 A.2d 539 (2008).118 Id. at 762-63.

underlying zoning matter that they could have recovered.119

The Appellate Court stated that, as a matter of law, substan-tial evidence appeared in the record in support of the zoningboard’s adverse determination with respect to the plaintiffsand, therefore, the plaintiffs could not have succeeded in their underlying zoning appeal.120

The three-year limitations period contained in GeneralStatutes Section 52-577 barred the plaintiff ’s legal malprac-tice action in Weiner v. Clinton.121 The complaint containedtwo counts against the defendant, purportedly setting forthcauses of action in negligence and breach of contract.122 TheAppellate Court noted that a plaintiff may bring an actionagainst an attorney in both negligence and breach of contract,but the contract claim cannot merely allege that that thedefendant breached the standard of care applicable to legalprofessionals as was claimed by the plaintiff in the instantcase.123 The Court concluded that legal malpractice actionsbased on negligence are subject to the tort statute of limita-tions, found in Section 52-577, and, that the plaintiff ’s sec-ond count sounded in malpractice masked in contract garb.124

Gray v. Weinstein125 addressed whether the trial court erredin applying the doctrine of collateral estoppel to preclude theplaintiff from litigating the issue of whether the defendant’sfailure to move to withdraw the plaintiff ’s plea of nolo con-tendere in a prior criminal proceeding caused the plaintiff ’sharm. The plaintiff sued the named defendant for legal mal-practice arising out of the defendant’s representation of theplaintiff in a prior criminal proceeding.126 While the mal-practice case was pending, the plaintiff filed a petition for awrit of habeas corpus, and post hearing, the trial court deniedthe requested relief, holding that although the plaintiff provedthat the defendant had provided improper assistance by using


119 Id. at 764.120 Id. at 766.121 106 Conn. App. 379, 942 A.2d 469 (2008).122 Id. at 381-82.123 Id. at 383-85.124 Id. at 385-86.125 110 Conn. App. 763, 765, 955 A.2d 1246 (2008).126 Id. at 767.

improper tactics to pressure the plaintiff to plead nolo con-tendere, the plaintiff failed to demonstrate a reasonable prob-ability that the outcome would have been different but for thedefendant’s improper conduct.127 The trial court in the mal-practice action concluded that the plaintiff was precludedfrom relitigating the issue of causation and granted the defen-dants’ motion for summary judgment.128 The Appellate Courtstated that the plaintiff had the burden to show that there wasa reasonable probability that he would have been successful inhis defense at his criminal trial and since the habeas courtfound that he would not, the Court rejected the plaintiff ’s con-tention that the issue of causation had not already been decid-ed and affirmed the granting of the summary judgment.129

In Levesque v. Bristol Hospital, Inc.130 the Supreme Courtheld that the trial court properly declined to charge the jurythat the defendant physician was liable for injuries sustainedby the plaintiff as a result of the negligence of a third party (aresuscitation team) in performing an emergency procedureon the plaintiff following his delivery if the jury first foundthat the emergency procedure was necessary due to thedefendant’s negligence in delivering the plaintiff. The juryhad found the defendant negligent but that her negligencewas not a proximate cause of the plaintiff ’s injuries.131 TheCourt stated that a tortfeasor may be held liable for the sub-sequent negligence of a third party if that subsequent negli-gence of the third party was a foreseeable consequence of thetortfeasor’s negligence.132 The Court found that although thejury would have been assisted by such a charge, the trial court did not err in refusing to use the plaintiff ’s request tocharge since the plaintiff ’s request was an inaccurate state-ment of the law since it would have required the jury to findthe defendant negligent, rather than allowing the jury to


127 Id. at 767-770. 128 Id. at 772.129 Id. at 774-76.130 286 Conn. 234, 236-37, 943 A.2d 430 (2008).131 Id. at 241, footnote 11.132 Id. at 248. The Court noted that the principle that each of two successive

tortfeasors can share liability provided that both are found to be a proximate causeof the injuries is embodied in Connecticut’s statutory negligence scheme, CONN.GEN. STAT. §52-572h(c). Id. at 246, footnote 13.

decide the issue, as a matter of fact, whether the defendant’snegligence was a proximate cause of the plaintiff ’s injuries asa result of the third party’s negligence.133 The Court alsofound no error under General Statutes Section 52-260(f) andPractice Book Section 13-4(3) for awarding costs against theplaintiff for the time that the defendant’s expert spent prepar-ing for a deposition that had been noticed and taken by theplaintiff during the course of pretrial discovery.134

Smith v. Andrews135 involved a claim by the plaintiff thatthe trial court improperly admitted evidence of a local stan-dard of care with respect to the method of intubation per-formed on the plaintiff prior to surgery. The Supreme Courtstated that the historical distinction between a statewide anda national standard of care was no longer warranted and thatexpert testimony establishing a standard of care at a particu-lar hospital is relevant only if it comports with an accepted,applicable standard of care.136 The Court found, under thefacts of the case, that evidence establishing the standard ofcare at St. Vincent’s was relevant to support the defendants’argument that the use of standard endotracheal intubationcomported with the applicable national standard of care for apatient in the plaintiff ’s condition.137 The Court went on toaddress the plaintiff ’s contention that some of the costsawarded to the defendants were not warranted. At the outset,the Court stated that costs are a creature of statute and unlessa statute authorizes the recovery of the cost, the court can nottax them.138 The Court stated that the defendant’s offer ofcompromise under General Statutes Section 52-195, aside from the authorization to recover attorney’s fees up to$350, does not provide authority for the taxing of costs.139

The Court rejected an award for the expense of daily expe-


133 Id. at 249-50.134 Id. at 255-63. The Court remarked that prior to an expert’s having his or her

deposition taken, that expert will have already spent time examining records and rel-evant information in preparation of providing an opinion. The Court stated that suchtime is not a recoverable cost. Id. at 263, footnote 30.

135 289 Conn. 61, 63-64, 959 A.2d 597 (2008).136 Id. at 68-69.137 Id. at 70-71.138 Id. at 81.139 Id. at 82-83. The plaintiff had rejected the defendants’ offer of judgment

and failed to recover more than the sum specified in the offer. Id. at 81, footnote 22.

dited trial transcripts as there was no statutory authorizationfor the cost and also rejected the expenses incurred in defen-dants’ attorney’s attending a videoconference deposition ofone of the plaintiff ’s experts since no statute authorized thecost.140 The Court further refused to let stand expenses forhaving the defendants and their employees testify at trialsince the defendants could cite to no statutory authority insupport of the expense.141 Finally, the Court agreed with theplaintiff that the defendants were not permitted to recover thecosts for the defense experts’ trial preparation time sinceGeneral Statutes Section 52-260(f) only permits costs thatarise from an expert’s testimony at trial.142

In Monti v. Wenkert143 the plaintiffs brought a wrongfuldeath action against the defendants for negligent treatment oftheir daughter’s respiratory illness. After the plaintiffs restedtheir case they entered into a settlement agreement whereinthe settling defendant remained in the case, but the plaintiffswere guaranteed certain minimum and maximum awardsdepending on the jury’s verdict; the agreement was not dis-closed to other remaining nonsettling defendant.144 The non-settling defendant argued that the plaintiff should have dis-closed the agreement and that the secrecy of the agreementprejudiced him.145 For guidance the Supreme Court lookedto other jurisdictions that had considered Mary Carter agree-ments.146 The Court noted that these agreements raise athreat to the fairness of the trial for the nonsettling defendant


140 Id. at 83-84. The Court reiterated that under the American rule ordinaryexpenses and burdens of litigation are not allowed to the prevailing party save con-tractual or statutory authority. Id. at ?.

141 Id. at 84-85.142 Id. at 86-88. The Court distinguished Levesque, supra note 130, wherein the

Court concluded that the plain terms of Practice Book §13-4(3) authorized the awardof costs associated with the time spent by an expert in preparation for his or her dep-osition. Id. at 87.

143 Monti, supra note 84.144 Id. at 108. 145 Id. at 119.146 The Court noted that the high-low agreement was not a Mary Carter agree-

ment. A Mary Carter agreement is a contract by which one or more defendants in amulti-party case secretly align themselves with the plaintiff and agree to continue asactive defendants in the suit while working to assist the plaintiff and in return theirown maximum liability will be diminished proportionately by increasing the liabil-ity of the nonagreeing defendant or defendants. Id. at 122.

since they secretly alter the adversarial nature of the relation-ship between the parties.147 The Court noted that althoughsome jurisdictions have found Mary Carter agreements to beinvalid, most states in light of polices to encourage settle-ments have adopted rules to prevent abuses attendant to anytype of verdict contingent settlement, whether Mary Carteror high-low agreements.148 The Court agreed that it wassound policy to encourage settlement, but that to avoid athreat to fairness the following rule was adopted: All verdictcontingent agreements must promptly be disclosed to thecourt and any nonsettling defendant; such agreements maynot be used to prove liability or damages; and the trial court,in its discretion, may permit these agreements to be used forthe limited purpose of evincing bias or prejudice of a witnesswith an appropriate cautionary instruction, provided that theevidence is not otherwise inadmissible.149 Turning to theinstant case, the Court found that the high low agreement,though lacking the liability shifting provision characteristicof Mary Carter agreements, had similar risks, and, therefore,it was improper for the plaintiffs and the settling defendantnot to have disclosed it promptly upon its execution to thecourt and to the nonsettling defendant.150 The Court addi-tionally found that the agreement did not change the adver-sarial relationship between the parties since the defendantswere adverse to each other from the beginning of the litiga-tion and that the agreement was not executed until after theplaintiffs had rested and after the settling defendant had tes-tified, and, accordingly, the nonsettling defendant was not soprejudiced to warrant a reversal.151

In Dimmock v. Lawrence and Memorial Hospital152 theSupreme Court held that neither the cause and effect of aninfection after spinal surgery nor the proper surgical treat-


147 Id. at 123.148 Id. at 124.149 Id. at 125-26. The Court noted that it did not need to decide what other lim-

itations may apply, such as the effect of General Statutes §52-216a, which providesthat agreements not to bring an action or releasing a defendant from liability areinadmissible. Id., footnote 18.

150 Id. at 126.151 Id. at 127-28.152 286 Conn. 789, 813, 945 A.2d 955 (2008).

ment for a synovial cyst on the spine is a matter within thecommon knowledge of laypersons. The Court rejected theplaintiff ’s argument that no expert testimony was necessarybecause gross negligence could be inferred from the facts,holding that the plaintiff ’s claims did not rise to the level ofan obvious and egregious violation of the standard of care.153

The Court similarly rejected the plaintiff ’s contention thatshe did not need an expert under a “lost chance” theory ofrecovery, concluding that this theory did not obviate the needto provide expert testimony.154

“Loss of chance” claims were pivotal to the disposition ofPeterson v. Ocean Radiology Associates, P.C.155 The trialcourt granted the defendants’ motion for summary judgmenton the basis that each of the plaintiffs’ claims of medical mal-practice was properly categorized as “loss of chance”156

claims and that the plaintiffs failed to adduce a factual pred-icate as to the decedent’s chance of survival or successfultreatment of at least 51 percent.157 The plaintiffs did not con-test the portion of the court’s decision regarding the “loss ofchance” claims. The plaintiffs rather claimed that their otherclaims of negligence were not barred; namely, that the man-ner that defendant radiologists reviewed, interpreted, read and reported the results of an X-ray caused the decedent tosuffer pain and suffering, a loss of life’s activities, to experi-ence more medical intervention, and a decrease in life


153 Id. at 813-14. The Court mentioned the types of cases where no expert tes-timony was found to be necessary: needle found in patient after hernia operation;needle left in patient after delivery of child; lacerations to patient’s leg in removal of cast; piece of surgical instrument left in patient after nasal operation; human tis-sue labeled for investigational use and for testing only was grafted onto decedent;and where chiropractor, unlicensed to issue prescriptions, prescribed medication notapproved by FDA to decedent undergoing cancer treatment. Id.

154 Id. at 812-15.155 109 Conn. App. 275, 951 A.2d 606 (2008).156 In a “loss of chance” case, the defendant through his negligent failure to act

or omission, as opposed to an act of commission, causes a person to lose a chance toavoid some form of harm from a preexisting medical condition. Id. at 276, 286, foot-note 5. To establish a “loss of chance” claim the plaintiff must demonstrate (1) thathe has been deprived of a chance for successful treatment and (2) that the decreasedchance for successful treatment more likely than not resulted from the defendant’snegligence. Id. at 278. The plaintiff must prove that had the standard of care been fol-lowed, there was a greater than 50 percent chance of avoiding the harm. Id.

157 Id. at 276, 281.

expectancy.158 The Appellate Court agreed with the plaintiffand reversed, in part, the decision of the trial court; specifi-cally, plaintiff ’s failure to be able to establish “loss ofchance” claims did not preclude the plaintiff from establish-ing other claims of negligence.159

XI. SOVEREIGN IMMUNITY

In Kinney v. State160 the Supreme Court held that SpecialAct 94-13, which authorized the plaintiff to institute an untime-ly complaint, benefitted no member of the public other than theplaintiff and remedied a procedural default arising from theplaintiff’s failure to file a claim with the claims commissionerwithin three years from the date of the act or event complainedof pursuant to General Statutes Section 4-148(a) and, therefore,violated Article First, Section 1, of the state constitution. Thestate argued that Special Act 94-13 was an unconstitutionalexclusive public emolument or privilege in violation of ArticleFirst, Section 1, of the Constitution of Connecticut.161 TheCourt noted that it was hard pressed to find a legitimate publicpurpose where the beneficial effect of the special act applied tono member of the public other than the plaintiff for whom itgrants a personal privilege.162 The Court remarked that theSpecial Act neither excused other persons similarly situatedfrom complying with statutory limitations nor provided cir-cumstances under which such persons could be excused.163

In Hicks v. State164 the defendant appealed from the judg-ment of the trial court, rendered after a verdict in favor of theplaintiff, for damages pursuant to General Statutes Section52-556, which provides a cause of action against the state for


158 Id. at 282-84.159 Id. at 285-287.160 285 Conn. 700, 708-12, 941 A.2d 907 (2008). The complaint alleged that

the state had been negligent in assigning the plaintiff ’s decedent, a judge of the supe-rior court, an extraordinary amount of work resulting in excessive stress and, ulti-mately, his death. Id. at 707.

161 Id. at 708. Article First, §1, of the state constitution provides: “All menwhen they form a social compact, are equal in rights; and no man or set of men areentitled to exclusive public emoluments or privileges from the community.”

162 Kinney, supra note 160, at 714.163 Id.164 287 Conn. 421, 424-25, 948 A.2d 982 (2008).

persons whose injuries are caused by the negligence of a stateemployee when operating a motor vehicle owned and insuredby the state. The defendant argued, inter alia, that since theplaintiff stated that he had no recollection of what caused himto swerve his truck, the plaintiff could not prevail due to theabsence of evidence that the alleged negligent act actuallycaused the accident when there were numerous factual possi-bilities that could have explained how the accidentoccurred.165 The Supreme Court, in finding for the plaintiff,distinguished the line of cases relied upon by the defendantfrom the case before it since the plaintiff in the present caseproduced an eyewitness to the accident.166

XII. STATUTE OF LIMITATIONS

The trial court in Rosenfield v. I. David Marder &

Associates, LLC167 granted the defendants’ motion for sum-mary judgment since the plaintiff ’s claims were barred byGeneral Statutes Section 52-581.168 The plaintiff had sued the defendants for breach of contract; specifically, that thedefendants expressly or impliedly promised the plaintiff aspecific result: that the defendants would be successful in


165 Id. at 437. The defendant relied on a line of cases in which the SupremeCourt concluded that the plaintiff could not prevail in the absence of “evidence that[the alleged negligent act] actually had caused the collision ... [when there] are anumber of factual possibilities that could explain how the accident occurred.” Winnv. Posades, 281 Conn. 50, 56-60, 913 A.2d 407 (2007)(no proof of negligence intwo-car collision at intersection when “[the defendant] was unable to recall how theaccident happened, the [plaintiff's] decedent never regained consciousness, and therewere no witnesses to the accident”); Toomey v. Danaher, 161 Conn. 204, 207, 286A.2d 293 (1971) (no proof of negligence when driver had died as result of injuriessustained in accident, plaintiff passenger was unable to recall anything about acci-dent due to amnesia, and no eyewitnesses to accident); Palmieri v. Macero, 146Conn. 705, 706-708, 155 A.2d 750 (1959) (no proof of negligence when driver ofmotor vehicle that went over embankment did not survive accident, plaintiff passen-ger was asleep at time of accident, and no other witnesses to accident). Comparewith Terminal Taxi Co. v. Flynn, 156 Conn. 313, 317-18, 240 A.2d 881 (1968) (suf-ficient evidence of negligence when plaintiff was struck from behind by defendant'scar and plaintiff proffered testimony as to what he had seen immediately before acci-dent occurred and evidence as to physical facts in police officer's accident report).

166 Hicks, supra note 164, at 437.167 110 Conn. App. 679, 680-81, 956 A.2d 581 (2008).168 CONN. GEN. STAT. § 52-581(a) provides: “No action founded upon any express

contract or agreement which is not reduced to writing, or of which some note or mem-orandum is not made in writing and signed by the party to be charged therewith or hisagent, shall be brought but within three years after the right of action accrues.”

recovering in a prior legal malpractice case.169 The AppellateCourt, in affirming the trial court, stated that in an action forbreach of contract, the cause of action is complete at the timeof breach of the contract, that is, when the injury has beeninflicted.170 The Court further stated that the statute of limi-tations begins to run upon the accrual of the cause ofaction.171 The Court held that the action was time-barredbecause any alleged breach of contractual duty on the defen-dants’ part triggering the statute of limitations would haveoccurred either when the defendants last represented theplaintiff or the date that the summary judgment was grantedin favor of the defendant in the prior legal malpractice case;a difference that did not need to be resolved since undereither scenario, the action was untimely.172

In Cue Associates, LLC v. Cast Iron Associates, LLC173

the Appellate Court held that trial court erred in applying thethree-year statute of limitations found in General StatutesSection 52-577 to bar the plaintiff ’s trespass claim when thedefendant did not plead this statute as a special defense. TheCourt noted that Practice Book Section 10-3(a)174 is directo-ry rather than mandatory and that the critical consideration indetermining the sufficiency of a party's pleading is notice tothe other party.175 The Court stated that the limitations peri-od found in Section 52-577 was procedural rather than juris-dictional and, therefore, it could be waived.176 The Courtconcluded that the defendant had waived the statute of limi-tations defense since it failed to specifically plead it.177


169 Rosenfield, supra note 167 at 683-84. An attorney may be sued for breachof contract; specifically, a claim in which a plaintiff avers that a defendant who isprofessional breached an agreement to obtain a specific result states a true contractclaim. Id. at 685, footnote 4.

170 Id. at 684-85.171 Id. at 685-86.172 Id. at 686-92.173 111 Conn. App. 107, 109, 958 A.2d 772 (2008).174 Practice Book §10-3(a) provides that “[w]hen any claim made in a com-

plaint, cross complaint, special defense, or other pleading is grounded on a statute,the statute shall be specifically identified by its number.”

175 Cue Associates, supra note 173, at 111-12.176 Id. at 112.177 Id. at 117.

XIII. WORKERS’ COMPENSATION

In Jaiguay v. Vasquez178 the Supreme Court, after a choiceof laws analysis, applied the law of New York, rather than thelaw of Connecticut, and held that the plaintiff ’s action wasbarred. The plaintiff ’s decedent, while a passenger in a vehicle operated by a coemployee, was killed in an accident inGreenwich, Connecticut.179 The Court stated thatConnecticut’s Workers’ Compensation Act, General StatutesSection 31-275 et seq., permitted an action for damages aris-ing out of a coemployee’s negligent operation of a motor vehicle, whereas New York’s law did not.180 The Court usedthe case to clarify its choice-of-law rules and, as a result of itsreview, overruled its recent decision in Johnson v. Atkinson181

that held that the same choice-of-law analysis applies to tortclaims and claims for workers’ compensation benefits.182 TheCourt adopted the most significant relationship test of theRestatement (Second) of Conflict of Laws for the purposes oftort actions that, as in the present case, involved a claimbrought under an exception to the exclusivity provisions ofConnecticut’s Workers’ Compensation Act.183 The Courtfound that the factors enumerated under the Restatement mil-itated strongly in favor of applying New York law.184

Specifically, the Court noted that New York had greater con-


178 287 Conn. 323, 325-26, 948 A.2d 955 (2008).179 Id.180 Id.181 283 Conn. 243, 926 A.2d 656 (2007). In Johnson, the plaintiff ’s decedent

died in New Jersey due to a coemployee’s negligent operation of a vehicle. Id. at 245-46. In New Jersey, the plaintiff ’s action was barred by the exclusivity provisions ofthe workers’ compensation law, whereas in Connecticut the plaintiff ’s action fellwithin an exception to the exclusivity provisions of the statute. Id. at 251-52 TheSupreme Court stated that Connecticut law applies where Connecticut is: (1) theplace of the injury; (2) the place of the employment contract; or (3) the place of theemployment relation. Id. at 256. The Court stated that the three-part significant rela-tionship test is the controlling choice-of-law analysis for all workers’ compensationcases and claims involving benefits and third-party tort actions. Id., footnote 4.TheCourt concluded that there was not a significant relationship between Connecticutand the decedent’s employment contract or his employment relationship since thedecedent was employed as a mechanic in the State of New Jersey. Id. at 257.

182 Jaiguay, supra note 178, at 330-348. The Supreme Court stated that thethree-pronged test approved in Johnson would apply only when the case involves aclaim for workers’ compensation benefits and not where the case involves a tortclaim. Id. at 345.

183 Id. at 350.184 Id. at 356.

tacts than Connecticut, including the following: the dece-dent’s employer was from New York, the employment rela-tionship was in New York, the truck was registered in NewYork, the decedent and the coemployee resided in New York;in contrast, Connecticut’s only contact was that the accidentand the conduct causing it were in Connecticut.185

XIV. MISCELLANEOUS

In Rhode v. Milla186 the primary issue was whether a non-party witness’s invocation of the privilege against self-incrimination pursuant to the Fifth Amendment to the UnitedStates Constitution was admissible in a civil case. During thediscovery phase of the case the plaintiff ’s treating chiroprac-tor refused to answer questions at his deposition, assertingthe Fifth Amendment, and, later at the time of trial, he onceagain asserted the privilege outside the presence of thejury.187 The defendants, on appeal, contended that theyshould have been allowed to introduce the chiropractor’sinvocation of the Fifth Amendment at the time of trial.188

The Supreme Court stated that a nonparty’s invocation of theFifth Amendment was not per se inadmissible and stated thatcourts should consider the issue on a case-by-case basis;specifically, whether the probative value of admitting evi-dence exceeded the prejudice to the party against whom itwill be used under Section 4-3 of the Connecticut Code ofEvidence.189 The Court held that under the facts of the case


185 Id. at 353.186 287 Conn. 731, 732, 949 A.2d 1227 (2008). The nonparty witness was the

plaintiff ’s treating chiropractor who was the subject of a criminal investigation intohis treatment and billing practices. Id. at 734.

187 Id. at 734-35.188 Id. at 733.189 Id. at 738. Factors that the court should consider include: (1) the nature of

the relevant relationships—the most significant circumstance—examined from theperspective of a nonparty witness's loyalty to the plaintiff or defendant, as the casemay be; (2) the degree of control of the party over the nonparty witness, such aswhether the assertion of the privilege may be viewed as a vicarious admission; (3)the compatibility of the interests of the party and nonparty witness in the outcomeof the litigation, namely, whether the nonparty witness is pragmatically a noncap-tioned party in interest and whether the assertion of the privilege advances the inter-ests of both the nonparty witness and the affected party in the outcome of the litiga-tion; and (4) the role of the nonparty witness in the litigation, such as whether thenonparty witness was a key figure in the litigation and played a controlling role inrespect to any of its underlying aspects. Id. at 739.

before it the admission of the chiro practor’s invocation of theprivilege could have unfairly prejudiced the plaintiff who haddone nothing more than choose the wrong chiropractor totreat her.190 The defendants additionally contended that thatthe trial court improperly admitted the chiropractor’s medicalbills into evidence pursuant to General Statutes Section 52-174(b) since his invocation of the Fifth Amendment at hisdeposition denied the defendants’ right to cross-examinehim.191 The Court agreed with the defendant, but found thatthe error was not harmful since the Court had a “fair assur-ance” that the evidentiary error did not affect the jury’s ver-dict.192 The Court noted that the bills were admitted whenthe plaintiff testified about her injuries and that it had previ-ously approved the practice for medical bills to be admitted,even though the doctor has not appeared and testified, wherethe plaintiff testifies that the bills have been incurred as aresult of the injuries received.193

In an important yet probably the driest case of the year, theSupreme Court in State v. Peters194 explored the intricacies ofMedicaid. The case involved a challenge to the amount of alien for Medicaid benefits that was claimed by the plaintiff,the State of Connecticut, against an arbitration award receivedby the defendant, an accident victim, from a third-party tort-feasor.195 The precise issue was whether the state can chooseto collect reimbursement from the Medicaid recipient underfederal Medicaid law rather than pursuing the third-party tort-feasor directly, and if so, whether the reimbursement must bereduced pro rata to compensate the recipient for the attorneys’fees and costs expended in obtaining the recovery.196 TheCourt held that the federal statutes that govern Medicaid do


190 Id. at 741. 191 Id. at 742. In Struckman v. Burns, 205 Conn. 542,548-49, 534 A.2d. 888

(1987) the Supreme Court held that the admission of bills under General StatutesSection 52-174 (b) does not violate the defendant’s common-law right to cross-examination in a civil case since the statute did not prevent the taking of the depo-sition of the medical practitioner whose report or bill may be offered into evidenceat the time of trial.

192 Rhode, supra note 186, at 744.193 Id. at 745.194 287 Conn. 82, 946 A.2d 1231 (2008).195 Id. at 83.196 Id.

not require the state to pursue third-party tortfeasors directlyfor reimbursement; or, alternatively, if the state elects to col-lect reimbursement indirectly from the Medicaid recipient, thefederal statutes do not require a reduction in the amount of thereimbursement pro rata to compensate the attorneys and costsincurred in pursuing the tortfeasor.197

The interpretation of General Statutes Section 52-362d (d)was the subject of Torres v. Kunze.198 The plaintiff sued thedefendants and their insurer, Geico Indemnity Company, forfailing to pay him the proceeds of a settlement agreement.199

After the settlement had been reached, Geico’s claim repre-sentative contacted the child support lien network to deter-mine whether there were any outstanding liens and afterlearning of a lien informed the plaintiff ’s attorney that Geicowould not release the settlement funds until the child supportlien was resolved.200 The Appellate Court found that, underSection 52-362d(d), as soon as Geico became aware of theplaintiff ’s child support lien it was required to withhold thesettlement proceeds.201 The Court rejected the plaintiff ’scontention that Geico was not required to ascertain whetherhe was delinquent, noting that Section 52-362d(d) did notprohibit payors from acquiring this information and thatConnecticut had a strong state policy of ensuring that minorchildren receive the support they are entitled to.202

In Kramer v. Petisi203 the Supreme Court agreed with the


197 Id. at 100.198 106 Conn. App. 802, 945 A. 2d 472 (2008).199 Id. at 805. 200 Id. at 804-05.201 Id. at 809.202 Id. at 808-10.203 285 Conn. 674, 681, 940 A.2d 800 (2008). The Appellate Court in Kramer v.

Petisi, 91 Conn. App. 26, 879 A.2d 526, cert. granted in part, 276 Conn. 916, 888A.2d 84 (2005), decided that comparative negligence was applicable to a negligentmisrepresentation action. The plaintiff prior to the closing in a real estate transactiondid not obtain a current survey of the property and instead relied upon an older survey.Id. at 29. After the purchase the plaintiff was put on notice from the owners of adja-cent property that they were asserting their rights to prevent the plaintiff from adverse-ly possessing a portion of their property that was used by the plaintiff. Id. at 30. Theplaintiff instituted suit sounding in negligent misrepresentation against the priorowner, the real estate agency, and the agent. Id. at 28-30. The jury found that the plain-tiff was 60 percent comparatively at fault and found for the defendants. Id. at 30. TheCourt noted the distinction between fraudulent misrepresentation, where comparative

Appellate Court that the trial court properly concluded thatthe doctrine of comparative negligence was applicable to anaction sounding in negligent misrepresentation of a propertyboundary line.

The issue in Taylor v. T. Mucci204 was whether the defen-dant’s liability insurance policy, which provided bodily injury coverage with liability limits of $100,000 for “each person” and $300,000 for “each accident,” provided cover-age for the plaintiff ’s bystander emotional distress claim,notwithstanding the defendant’s insurer’s payment of$100,000 for injuries sustained by the plaintiff's minor son.The plaintiff claimed that the exhaustion of the $100,000 perperson policy limit for the plaintiff ’s minor son did not pre-vent her from recovering on her claim since her claim con-stituted a separate and distinct “bodily injury” pursuant to theterms of the policy.205 The Supreme Court, however, agreedwith the defendant that the plaintiff could not recover undera separate per person limit because her claim did not consti-tute a “bodily injury” under the policy.206

The Appellate Court in Schweiger v. Amica Mutual Insur -

ance Company207 upheld a directed verdict in favor of thedefendant where the plaintiff introduced no evidence beyondthe fact that her vehicle was struck with some force by the tort-feasor’s vehicle. No one testified as to the circumstances thatcaused the tortfeasor’s vehicle to hit the plaintiff’s vehicle andthe plaintiff testified that she did not see the tortfeasor hither.208 The Court noted that the fact that there was a collisionby itself was insufficient to establish legal cause.209 The Courtrejected the plaintiff’s contention that the jury could have rea-


negligence is not a defense, and negligent misrepresentation, where it is consistentwith the purpose of comparative negligence principles to apply it. Id. at 34-36.

204 288 Conn. 379, 381-82, 952 A.2d 776 (2008).205 Id. at 383.206 Id. at 384. The Supreme Court stated that the construction of a contract of

insurance presented a question of law and that an insurance policy is to be inter-preted by the same general rules that govern the construction of any written contract.Id. The question is the intent of the parties, namely, what coverage the insuredexpected to receive and what the insurer was to provide. Id.

207 110 Conn. App. 736, 737-41, 955 A.2d 1241(2008).208 Id. at 742.209 Id. at 740-42. The Court explained that legal cause has two components:

causation in fact and proximate cause. Id. at 740.

sonably inferred that the tortfeasor was traveling at an unrea-sonable speed, observing that proof of excessive speed is insufficient, in and of itself, to establish legal cause.210

Murphy v. Lord Thompson Manor211 involved a suitbrought for, inter alia, negligent infliction of emotional dis-tress by a bride against the defendant wedding and banquetfacility. The case was tried to the court which found that thedefendant’s agent created an unreasonable risk of causing theplaintiff emotional distress due to its failure to perform a con-tract for wedding services.212 The Appellate Court affirmedthe judgment for the plaintiff and rejected the defendant’sargument that the law required a finding that its conduct wasunreasonable, outrageous or egregious.213 The Court statedthat the defendant’s agent created an unreasonable risk ofcausing the plaintiff emotional distress; specifically notingthat the defendant gave the plaintiff no notice that it hadquestions about her wedding plans before it canceled herwedding date seven months before it was to take place.214

Precision Mechanical Services, Inc. v. T.J. Pfund Asso -

ciates, Inc.215 involved a complaint brought by a contractorengaged in the installation and repair of plumbing and firesuppression systems against the defendants, an insuranceagent and brokerage firm. The action sounded in negligenceand breach of contract for causing the plaintiff to be withoutliability insurance.216 The Appellate Court stated that where


210 Id. at 742.211 105 Conn. App. 546, 547, 938 A.2d 1269 (2008). The Court stated that to

prove a claim of negligent infliction of emotional distress the plaintiff must estab-lish (1) the defendant’s conduct created an unreasonable risk of causing the plaintiffemotional distress, (2) the plaintiff ’s distress was foreseeable, (3) the emotional dis-tress was severe enough that it might result in illness or bodily injury, and (4) thedefendant’s conduct was the cause of the plaintiff ’s distress. Id. at 552. The Courtfurther noted that the plaintiff must prove that the defendant should have realizedthat its conduct involved an unreasonable risk of causing emotional distress and thatthat distress might result in illness or bodily harm. Id. at 552-53. A successful claimrequires that the fear or distress experienced by the plaintiff be reasonable in light of the conduct of the defendant since if the fear was unreasonable in light of thedefendant’s conduct, the defendant would not have realized that its conduct couldcause the distress and, therefore, could not be held liable. Id. at 553.

212 Id. at 547, 555.213 Id. at 553.214 Id. at 555.215 109 Conn. App. 560, 561-62, 952 A.2d 818 (2008).216 Id. at 562.

a broker undertakes to procure a policy affording protectionagainst a designated risk, the law imposes an obligation toperform with reasonable care, and the broker may be heldliable for a loss properly attributable to his default, either inbreach of contract or negligence.217 The Court further notedthat an insurance broker becomes an agent for the person thatthe broker is procuring insurance for but that the agency rela-tionship generally terminates upon procurement of therequested insurance policy.218 However, the broker has a duty to notify the insured if the insurer declines to continuethe policy so that the insured is not lulled into a sense ofsecurity.219 The Court, based upon the record, found that thetrial court erred in granting the defendants’ motion for sum-mary judgment since there was a genuine issue as to the exis-tence of an agency relationship between the plaintiff and thedefendants at all relevant times.220

Lefebvre v. Zarka221 involved an action sounding in mali-cious prosecution. The trial court granted the defendants’motions for summary judgment as to the plaintiff ’s claims ofmalicious prosecution and the plaintiff appealed.222 TheAppellant Court affirmed, holding that the plaintiff was notable to establish the first element of malicious prosecutionregarding the initiation or procurement of the institution ofcriminal proceedings against him.223 The Court stated that aprivate person can be said to have initiated a criminal pro-ceeding if he has insisted that the plaintiff should be prose-cuted, whereas a private person has not initiated a criminalproceeding if he has undertaken no more than to providepotentially incriminating information to a police officer and


217 Id. at 565.218 Id. at 565-66.219 Id. at 566.220 Id. at 569-71.221 106 Conn. App. 30, 940 A.2d 911(2008). The elements of an action for

malicious prosecution against a private person include (1) that the defendant initiat-ed or procured the institution of criminal proceeding against the plaintiff: (2) thecriminal proceedings have terminated in favor of the plaintiff; (3) the defendantacted without probable cause; and (4) the defendant acted with malice, primarily fora purpose other than that of bringing an offender to justice. Id. at 36.

222 Id. at 31, 34. 223 Id. at 35.

left the decision to prosecute entirely in the hands of the offi-cer.224 The Court found fatal to the appeal the plaintiff ’s fail-ure to produce any evidence to contest the defendants’ evi-dence that they did not initiate or procure the institution ofthe criminal proceedings against the plaintiff.225

The Appellate Court in Wasko v. Farley226 rejected thatplaintiff ’s argument that the trial court improperly compelledher attendance during jury selection. The Court noted that thetrial court has inherent power to compel a party’s attendanceat jury selection and that the court order did not hinder theplaintiff ’s right to have her counsel exercise the right toexamine each prospective juror.227

The plaintiff in Modugno v. Colony Farms of Colchester,

Inc.228 was reminded that where a jury renders a general ver-dict for one party, and no party requests interrogatories, areviewing court will presume that the jury found every issuein favor of the prevailing party. The jury returned a verdict infavor of the defendant and the plaintiff appealed, arguing thatthe trial court improperly allowed the defendant to argue thatthe plaintiff failed to seek treatment during a certain periodand that the plaintiff had not been prescribed ibuprofen dur-ing that same time frame.229 The Appellate Court stated thatthe general verdict rule applies where there has been a denialof a complaint and the pleading of a special defense, such ascomparative negligence, as interposed by the defendant in the instant case.230 The Court found that the issues raised bythe plaintiff were relevant to the plaintiff ’s claim of premis-es liability, but irrelevant to the issue raised in the defen-dant’s special defense and, accordingly, held that the verdicthad to stand since under the general verdict rule the verdictmust stand unless every ground is improper.231


224 Id. at 36.225 Id. at 37-39.226 Wasko supra note 42, at 161.227 Id. at 161-63.228 110 Conn. App. 200, 201-03, 954 A.2d 270 (2008).229 Id. at 202.230 Id. at 203.231 Id. at 203-206.

The principal issues raised in Saczynski v. Saczynski232

involved the bifurcation of liability and damages and the gen-eral verdict rule. The Appellate Court stated that whether atrial should be bifurcated lies solely within the sound discre-tion of the trial court and, as such, appellate review is limit-ed to whether the discretion has been abused.233 The Courtfound that the trial court did not abuse its discretion, notwith-standing that the trial court, sua sponte, ordered the trialbifurcated. The Court also held that the general verdict ruleprecluded review of the plaintiff ’s claim that the trial courtgave an improper jury instruction on the issue of nondele-gable duty since the defendant denied negligence, interposeda special defense of contributory negligence and neither partysubmitted interrogatories to the jury.234

In Gilmore v. Public Storage, Inc.235 the Appellate Courtreversed the trial court’s granting of the defendant’s motionfor summary judgment since the court granted the motionbefore the expiration of the 30-day extension the plaintiff wasautomatically granted pursuant to Practice Book Section 17-45.

Last, the rules for expert disclosure, as of January 1,2009, have undergone significant changes that will impactlitigators. Whether the revisions contained in Practice BookSection 13-4 will facilitate meaningful expert discovery cannot be predicted at this moment and will be answered only bythe crucible of future litigation. The scope of the revisions isbeyond the parameters of this article, but the briefest sum-mary is warranted: Among the changes, as set forth in theCommentary to the revisions, to the current rule are the fol-lowing. Subsection (a) sets forth the affirmative duty of aparty to disclose each person who may be called by that partyto testify as an expert witness at trial and all documents thatmay be offered in evidence in lieu of such expert testimony.Currently, a party may, through interrogatories, require anyother party to identify each person whom the other partyexpects to call as an expert witness at trial. Subsection (b)identifies specifically the content of the disclosure and allows


232 109 Conn. App. 426, 951 A.2d 670 (2008). 233 Id. at 428.234 Id. at 429-31.235 108 Conn. App. 143, 144-45, 947 A.2d 441 (2008).

the party to contemporaneously produce a written report ofthe expert witness. With respect to health care providers thathave rendered treatment, the disclosure may be satisfied bythe disclosure of medical records and reports. Subsection (d)requires a party to file with the court a list of all documentsor records that the party expects to submit in evidence in lieuof live testimony of an expert witness and sets forth the pro-cedures for taking the deposition of any expert whose recordsare disclosed. Subsection (g) sets forth a schedule governingthe expert discovery required under subsections (b), (c), (d)and (e). The parties within 120 days of the return date shallsubmit to the court for its approval a proposed schedule forexpert discovery. Subsection (h) sets forth sanctions that maybe imposed on a party by the judicial authority for failure tocomply with the requirements set out in this section.


2009] BOOK REVIEW 87

The Activist: John Marhsall, Marbury v. Madison, and the Myth of Judicial Review—Lawrence Goldstone,Walker & Company, New York, 2008, 258 pp.

The principal theme in Lawrence Goldstone’s The Activist

is that the power of judicial review as enunciated by ChiefJustice John Marshall in Marbury v. Madison1 “was a consti-tutional amendment by fiat, a de facto addition to Article III”2

of the Constitution. Goldstone is wrong. It is true thatArticle III does not specifically grant the Supreme Court, orany federal court, the power to declare a law passed byCongress unconstitutional, but it was never necessary thatsuch power be explicitly set forth. The power to rule that astatute violates the Constitution is an inherent judicial power,3

as inherent as the power of a court to draw up rules of prac-tice, which also is not specifically set forth in Article III

Lawrence Goldstone is a student of the United StatesConstitution, and his book is well written and very interest-ing. In addition to his argument that the Framers of theConstitution never intended the Supreme Court to have thepower to nullify congressional acts, he gives us a very goodcapsule biography of John Marshall, his relationship withGeorge Washington, and his rise in Virginia and national politics before being appointed Chief Justice in 1801 byPresident John Adams. Goldstone also presents the interest-ing story of the ratification of the United States Constitutionin both Virginia and New York, the early history of theSupreme Court under Chief Justices John Jay, John Rutledgeand Oliver Ellsworth, and a play-by-play narration of theelection of Thomas Jefferson over Aaron Burr in the House of Representatives.4 During these early days, Supreme Court

1 1 Cranch (5 U. S.) 137 (1803).2 LAWRENCE GOLDSTONE: THE ACTIVIST: JOHN MARSHALL, MARBURY V.

MADISION, AND THE MYTH OF JUDICIAL REVIEW (2008), at 225.3 According to Justice Antonin Scalia, the Supreme Court in Marbury simply

made up judicial review. Scalia, however, does not mean that the Court went out ofbounds to do that. “Now, we made it up very sensibly.” because “what the law meansis the job of the court.” See GOLDSTONE, supra note 2, at 1 (Emphasis added.)

4 In the election of 1800, the Republican candidates were Jefferson for presi-dent and Burr for vice president. Before the Twelfth Amendment changed the sys-tem, each presidential elector voted for two people for president. The candidate with the most electoral votes would be president and the one with the second high-

justices used to sit on the various federal circuit courts—rid-ing the circuit—to decide cases, and in several cases theydeclared state laws unconstitutional. Thus, the power of judi-cial review was not something new when Chief JusticeMarshall for the first time applied it to a federal statute. If alaw violates the Constitution, how is a court supposed to react to it? Enforce it anyway? If the courts do not have thispower, what check is there on a Congress that passes uncon-stitutional laws? The only check left would be a presidentialveto. And then what happens if Congress overrides the veto?Should the President, who takes an oath to support anddefend the Constitution, refuse to enforce it on grounds he isobliged not to enforce unconstitutional legislation? The onlyremedy Congress has in that case is the drastic remedy ofimpeachment. Without the high court’s power of judicialreview, a Congress strongly controlled by one party—even if the President were from another party—could become alegislative tyrant Jeffersonians maintained that Congresswas competent to determine the meaning of the Constitution.They apparently forgot when the Federalist-controlledCongress in 1798 had passed the Sedition Act, a clear viola-tion of the First Amendment. Suppose one of the trial judgesbefore whom a Republican newspaper editor was to be triedfor sedition found that the Sedition Act violated the FirstAmendment and dismissed the case? A case of judicial overreaching? Legislating from the bench? Or defendingthe Constitution as the judge was sworn to do.

The title “The Activist” relates to the name given to judges who conservatives believe are putting their own val-ues into the law instead of interpreting the law the way it waswritten.. Under this paradigm, conservatives prefer judgeswho are “originalists” or “texualists,” who interpret what’sthere without adding what they want or taking away whatthey don’t like. Thus, Chief Justice Marshall was being an“activist” when he ruled a section of the Judiciary Act of


est would be vice president. Because all the Republican electors voted for bothJefferson and Burr, they tied at 73 votes each, beating John Adams, but the choicewas then left to the House, each state casting one vote. Jefferson won on the 36thballot. GOLDSTONE, supra note 2, at 156-159.

1789 unconstitutional in Marbury v. Madison. In the firstparagraph of the book, Goldstone quotes from a speech givenby Justice Antonin Scalia in 1996: “I belong to a school, asmall but hardy school, called ‘textualists’ or ‘originalists.’”Scalia then explained, “If you are a textualist, you don’t careabout the intent, and I don’t care if the framers of theConstitution had some secret meaning in mind when theyadopted its words. I take the words as they were promulgat-ed to the people of the United States, and what is the fairlyunderstood meaning of those words.”5

According to Goldstone, “To an originalist, anything notspecifically enunciated in the Constitution cannot be thelaw.”6 That is not entirely true. The 18th clause in Article I,Section 8 of the Constitution, known as the Necessary andProper Clause or the elastic clause, gives Congress power tomake any laws “necessary and proper” for carrying out itsenumerated powers. Thus Congress may establish govern-ment departments, even though that power is not specifically“enunciated” in the Constitution. Likewise, Article III of theConstitution does not have to specifically enunciate how acourt is to react to a case brought before it, including a casethat depends on a law that violates the Constitution. AsJustice Scalia points out, it’s part of the judge’s job to deter-mine the validity of a statute.7

That is what Chief Justice Marshall did in his Marbury

decision. If a law is in violation of the Constitution, a court isbound to say so, and not enforce it. In Marbury’s case JohnAdams, in the last days of his presidency, appointed a myriadof justices of the peace for the District of Columbia. One ofthem was William Marbury. At the time Adams appointedMarshall as Chief Justice in 1801, Marshall was serving asSecretary of State. Marshall did not get to deliver Marbury’scertificate of appointment to him. After the inauguration ofThomas Jefferson, Marbury brought an original action in theSupreme Court against James Madison, the new Secretary ofState, seeking a writ of mandamus to require Madison to


5 GOLDSTONE, supra note 2, at 1.6 Id.7 See supra note 3.

deliver the certificate. Section 13 of the Judiciary Act of 1789authorized Marbury to bring this original action to the highcourt. Article III, Section 2 of the Constitution limits the orig-inal jurisdiction of the Supreme Court to cases “affectingAmbassadors, other public Ministers and Consuls and those inwhich a State shall be Party.” A justice of the peace is not a“public minister.” Chief Justice Marshall ruled that althoughMarbury was entitled to his commission, the Supreme Courtdid not have jurisdiction to hear his case because the statuteextended the high court’s original jurisdiction in violation ofArticle III. The ruling was certainly political, as Goldstonemaintains. It, however, favored Jefferson’s Republicans. What Marshall avoided by refusing to issue the writ was a sit-uation where Jefferson could ignore his ruling and thus weak-en the Supreme Court.8

Goldstone accuses Marshall of unnecessarily fabricating ajurisdictional question so that Marshall could make sure thatMarbury’s commission was never delivered to him. Marbury, however, after having lost in the Supreme Court,could have brought his petition for mandamus in a lowercourt that did have jurisdiction, and then use part ofMarshall’s opinion in the Supreme Court case to support hisargument that he had a right to the commission. That, how-ever, was not done. The Republicans won the political battleand the Federalists won the judicial battle—strengthening theonly branch of the federal government over which they hadany power. The fact that Marbury v. Madison was part of apower play does not make judicial review bad law.

Goldstone says that Marshall misread Article III, Section2, paragraph 2, which provides for the Supreme Court’s orig-inal jurisdiction.9 It is Goldstone who does the misreading.


8 Id. at 5. When President Andrew Jackson later ignored an order ofMarshall’s court, the Supreme Court was no longer weak and had under Marshallpaved the way for a national economy. It is true that the high court had no way toenforce its rulings unless they were respected. During the Civil War, Chief JusticeRoger B. Taney, sitting as a circuit judge, issued a writ of habeas corpus to free aMarylander being held by Federal troops at Fort McHenry in Baltimore. The com-mander of the fort refused to comply with the writ because he was under presiden-tial orders. Chief Justice Taney had no way to enforce it, as Fort McHenry was anarmed military installation. See JAMES M. MCPHERSON, TRIED BY WAR: ABRAHAM

LINCOLN AS COMMANDER-IN-CHIEF (2008), at 27-28.9 GOLDSTONE, supra note 2, at 222.

The exceptions and regulations that Congress may make tothe Supreme Court’s jurisdiction relate to its appellate juris-diction. Marshall was correct.

In a further attempt to show that Marshall liked to playloose with the Constitution when it suited his needs,Goldstone discusses the case of United States v, Schooner

Peggy,10 a prize case, arising out of the 1799 Quasi-War withFrance, in which the Peggy, a French armed merchant ship,had been condemned as a prize in a federal circuit court inConnecticut. In the meantime the Convention of 1800 wassigned, and this provided that French vessels that had notbeen “definitively condemned” be returned to their owner.After Jefferson took office, he ordered the prize moneyreturned to the ship’s owners. Because there was a questionof whether Jefferson could interfere with the case, the courtclerk refused to release the money and the case went to theSupreme Court. As Goldstone points out, normally an appel-late court must determine whether the lower court committederror. Under the law before the 1800 treaty, the circuit courtwas correct. But Marshall reversed, finding that the 1800treaty should determine the case. Goldstone claims thatMarshall applied an ex post facto law, the treaty, to get theresult he wanted, another chance at not antagonizing theJefferson administration so early in his role as Chief Justice.Goldstone is wrong. The ex post facto clause in Article I,Section 9, paragraph 3 has to do with criminal cases.Furthermore, it is a limitation on Congress, not on the treaty-making power. A treaty is ratified by the Senate, not passed

by both houses of Congress. This is an example of howGoldstone’s misunderstanding of the Constitution skews hisview of Marshall.

Goldstone has some scholarly support for his view of judi-cial review, for example Leonard Levy. But scholars can bewrong. After all, there are generally scholarly opinions onboth sides of each case. But John Marshall also had impor-tant support. Gouverneur Morris, who had drafted the text ofthe Constitution in 1787, spoke in the Senate in 1802 that the


10 Id., at 185-186.

Supreme Court had the power to nullify an act of Congressthat was unconstitutional. When pressed, Morris could notpoint to a specific provision of the Constitution that providesfor such, but such a provision is not necessary, because say-ing what the law means is a part of the judicial process.Marshall also had support from Alexander Hamilton inFederalist No, 78.11 And “Brutus,” who wrote newspaperarticles in opposition to the “Publius” articles that became theFederalist Papers, said he feared that Article III would allowjudicial review, which to him would be a usurpation of leg-islative powers.12 Thus, simply because most of the framersmay not have thought about judicial review does not meanthat the Supreme Court was to be deprived of that power.

Jefferson and his Republicans generally agreed that theSupreme Court should have power to “interpret” theConstitution.13 What they apparently did not understand isthat “interpret” includes determining whether the statute is avalid exercise of congressional power. In a system of checksand balances, how could the judiciary not have a check on thelegislature? How could government be limited if there is noway to enforce the limitations? And in the case of the judi-cial branch, the means of enforcing such limitations is by notenforcing invalid laws.

But, in a democratic society, who should be deciding thevalidity of laws? And should the Supreme Court be the finalarbiter, from which there is no redress? The Republicans were correct that the judiciary should not have an “exclusive

right” to interpret the Constitution.14 Every governmentalofficial, from county clerk to the President, who takes an oathto support and defend the Constitution, may have an occasionto interpret the Constitution. Representatives and Senators inCongress take an oath to abide by the Constitution. But thisdoes not mean that whatever interpretation they make is cor-rect or should prevail. The Constitution has set up a system of countervailing forces. The Supreme Court is not there to


11 GOLDSTONE, supra note 2, at 60-62, 196.12 Id., at 60.13 Id., at 196.14 Id., at 196-197.

rule on the constitutionality of every statute as it gets passedby Congress. The courts can act only when cases are broughtbefore them. Cases are brought only when somebody orsome organization has a complaint. It is the courts’ duty toresolve the complaint. Congress should not get a handicap orextra points. And since the burden of having a law declaredunconstitutional is fairly heavy, the handiwork of Congressdoes not come easily undone. The Supreme Court’s opinionis “final” only in the sense that there is no higher court towhich an appeal may be brought. But because the Court ispart of our political process, there are political ways in whicha losing party may get another chance at bat. Congress mayamend a law to satisfy a constitutional problem but keep therest of the law intact. Congress and the states may amend theConstitution. And then there is the old constant in Americanpolitics: your side will not always be in power and your sidewill not always be out of power. Even after the demise of theFederalists following the 1816 election, their torch was pickedby the new party of John Quincy Adams and Henry Clay.15

Thus, judicial review is not a usurpation. Goldstone, how-ever, appears to be saying that judicial review is an additionto the Constitution, somewhat in the manner of abortionrights, a product of the Constitution as a “living document,”a philosophy he supports as opposed to Scalia’s originalism.His final sentence in Chapter Twenty is that “one conclu-sion is undeniable, what John Marshall achieved with hisdecision in Marbury v. Madison altered the United States asa nation, profoundly and forever, and the impact of his deci-sion in that case is felt by every American every day.”16 Thishas no support in history. The United States Supreme Court


15 The Federalists withered away as a national party after the 1816 election.After the 1824 election, which was the second and last to be decided by the Houseof Representatives, the Republican party split into two new parties, the Democratsunder Andrew Jackson (who lost the 1824 election to John Quincy Adams) and theNational Republicans (later the Whigs) under Adams and Henry Clay. Many for-mer Federalists, like Daniel Webster, joined the Whigs. When the Whig party wasdying in the 1850s, many of its Northern members joined the new Republican party.Incidentally, one of Jefferson’s philosophical heirs, Chief Justice Roger Taney, him-self declared an act of Congress, the Missouri Compromise, unconstitutional in DredScott v. Sandford, 19 How. (60 U. S.) 393 (1857).

16 GOLDSTONE, supra note 2, at 225.

did not declare another congressional act unconstitutionaluntil 1857, when it ruled the already repealed MissouriCompromise invalid.17 During most of his 34 years as ChiefJustice, John Marshall strengthened America’s national economy and secured the supremacy of the national govern-ment over the states. He wasn’t in the business of invalidat-ing acts of Congress. In this reviewer’s opinion, however, itwould benefit the United States immensely if the SupremeCourt would invalidate more federal laws that go beyondCongress’s enumerated powers. Despite the Jeffersonians’contention, members of the House and Senate have long losttheir ability to understand what the Constitution means.

The underlying theme of The Activist is that originalists likeJustice Scalia have adopted “one of the most egregious exam-ples of legislating from the bench [judicial review] as the basisfor their one deviation from literal adherence to theConstitution.”18 But originalism is not literalism. As JusticeScalia said more than ten years ago, originalists are not neces-sarily strict constructionists.19 Also, and most important, find-ing part of the Judiciary Act of 1789 unconstitutional was notlegislating from the bench. Marshall did not make new law. He simply declared what the law is, that Congress could not bystatute increase the Supreme Court’s original jurisdiction. Thatrule was made in 1787 when Article III was drafted.

Despite its defective argument, The Activist provides agood short history of the beginning of governance under theConstitution and the opening years of the Supreme Court. Itshould be in the library of any student of our Constitution.

WILLIAM T. BARRANTE*


17 Dred Scott v. Sandford, 19 How. (60 U.S.) 393 (1857). The MissouriCompromise of 1820 had been repealed by the Kansas-Nebraska Act in 1854.

18 GOLDSTONE, supra note 2, at 233.19 ANTONIN SCALIA, A MATTER OF INTERPETATION: FEDERAL COURTS AND THE

LAW 1997), at 23.* Of the Watertown Bar.

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