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COMMENTS AND CASES

 AC26186 - Longley v. State Employees Retirement Commission http://www.jud.state.ct.us/external/supapp/Cases/AROap/ap92/92AP87.pdf
A case on how State employee retirement benefits are to be calculated if you are interested.

AC25578 - Board of Police Commissioners v. Stanley  http://www.jud.state.ct.us/external/supapp/Cases/AROap/ap92/92AP90.pdf
Affirmed a judgment of the trial court that vacated an arbitration award that a police office be reinstated to his position.  The award was vacated on public policy grounds.  The officer had been accused of sexual misconduct, improper touching, and lying during the internal investigation.  The arbitration panel had concluded that while there was likely some misconduct and improper touching and untruthful statements, the City had violated the officer's rights in taking too long to bring him up on charges.  The Court noted that a challenge to an award on public policy grounds invokes a de novo review of the award. The Court said even the arbitrators found that there was improper conduct and this conduct violates long established public policy defined by both State and Federal law.  The arbitrators exceeded their authority by ordering the reinstatement of a police officer who violated this public policy.
 
AC25692 - Northeast Generation Co. v. Marcello
CGS 16-237 precludes the imposition of adverse possession claims against a utility - in this case the claim of right to maintain a dock on a lake [Candlewood] used as an energy storage facility.  The plaintiff's predecessor in title was not one of the few more cunning farmers who held out in the 30's for a right to use the lake for recreational purposes when they sold their land to the power company up to the 440 elevation.

Albahary v. Bristol
In a follow up to the holding in the Northeast Electronics vs ATC decision, in this case, undeveloped property owners in Town of Southington appealed the award of compensation in an eminent domain case initiated by the City of Bristol to acquire groundwater easements over properties whose groundwater had been contaminated by its adjoining closed landfill.  The property was residentially zoned but being used as a sand & gravel pit.  The Conn. Supreme Court upheld the decision of the Appellate Court that the measure of damages is not always determined as of the date of the taking when as here the condemning party actually caused the pre-taking damage to the property.   This would be an exception to the general rule that collateral issues - such as who caused the contamination [which essentially would be an inverse taking claim] - could not be litigated in the underlying valuation appeal.  The Court rejected the City's arguments that the ATC decision and the dictates of CGS 8-132 precluded this conclusion. Thus, in principal, the property owners here might have been entitled to a measure of damages that consisted of the value of the property in a clean state as compared to its contaminated state , BUT, the plaintiffs had also sued the City in Federal Court over the contamination which Court determined that the pollution was caused by the City's negligence but declined to award them any money damages due to its speculative measure and instead imposed an injunctive order that the City indemnify the owners from any claims and provide the property with a potable water source.  Thus the Appellate Court and the Supreme Court held that the principle of collateral estoppel precluded the land owner from claiming these damages again in the State Court proceedings or they might recover twice - once with a clean water source and again with compensation based on value diminution. 
 Note: These case updates are provided by Edward McCreery of the Municipal Law Practice Group of Pullman & Comley LLC and are not intended as legal advice. 

AC25995 - McCoy v. New Haven
Plaintiff sued the City of New Haven, claiming that it had condoned the conduct of the fellow employee that assaulted the plaintiff.  The City filed a motion to strike, alleging that it was immune from liability for intentional acts committed by employees pursuant to C.G.S. § 52-557n(a)(2)(A).  The motion to strike was granted, and the plaintiff appealed.  The Appellate Court upheld the decision over the plaintiff's argument that the Worker's Compensation Act provided an exception to the City's general immunity under C.G.S. § 52-557n.  The plaintiff argued that C.G.S. § 31-284(a) allowed a direct action against the City.  In reviewing this claim, the Appellate Court noted that the Suarez exception to immunity required a showing that the employer actually intended to injure the employee or created a dangerous condition that made the injuries certain to occur.  This is known as the "substantial certainty test".  The plaintiff had only made conclusory allegations of this, and there was no factual support in their complaint to survive a motion to strike.  A mere allegation that the employer condoned the action of the co-employee was insufficient.  One must allege that the City directed or authorized the assault.
 
AC25827 - Bishop v. Zoning Board of Appeals
The Appellate Court upheld the decision of the Trial Court, sustaining a zoning appeal.  The plaintiff bought a lot in an approved subdivision.  The seller lived across the street.  The buyer applied to the Zoning Commission for coastal site plan approval, which the seller across the street objected to, and appealed the decision granting the permit.  The seller argued that the lot was non-conforming in size because of a vehicular easement access.  A Superior Court dismissed that appeal, finding that the lot was conforming.  Later, the buyer applied for a certificate of zoning compliance and a building permit, which the ZEO issued.  The neighbor then appealed that award to the Zoning Board of Appeals, which overturned the issuance of the permits, adopting the argument of the neighbor that the lot was nonconforming in size.  On appeal again, the Superior Court noted that this issue had already been addressed and the neighbor was collaterally estopped from arguing for a second time that the lot was nonconforming, and the Zoning Board of Appeals had improperly utilized  its power to challenge a lot that was already approved by the Planning & Zoning Commission.  The Appellate Court, in turn, upheld this decision of the Trial Court.

AC26364 - Nolan v. Milford
An assessment appeal by the homeowner, disgruntled that the Trial Court had only reduced their waterfront property assessment from $2.5 million to $2 million.  The appeal was based upon a multi-prong attack on the City's appraiser, but the Appellate Court rejected most of these arguments as evidentiary issues more properly determined by the Trial Court as to the admissibility of evidence.  The Court noted that a tax appeal under 12-117a is a de novo proceeding, where the Trial Court makes an independent judgment on valuation after weighing the opinions of the appraisers of the parties.  The Court may also view the subject property to obtain a clear understanding of the issues.  While the Appellate Court cannot review the actual visual inspection, it can review the conclusions made by the Trial Court from such an inspection.  The Appellate Court held that the splitting of the difference between the appraiser's valuations of improvements and the Court's finding that the plaintiff's suggested land value was significantly too low, were both items within the Trial Court's discretion.
 
Fleming v. Bridgeport 
An appeal from the trial court's finding that a landlord and municipal police officers did not violate the Entry & Detainer Statute (47a-43) and the plaintiff's State & Federal constitutional rights.  Plaintiff was forcibly removed from an apartment after causing a disturbance.  The plaintiff had moved in as a guest of the actual tenant without the landlord's knowledge or consent and had lived there for some time.  The landlord asked the police to remove her as she was not a tenant.  The actual tenant stated to the police she was there only as a guest. The Appellate Court said she was one in "actual possession" and thus the entry & detainer statute was violated by the landlord.  Because the plaintiff failed to show any actual damages however the matter was remanded with direction to award the plaintiff $1.00 nominal damages against the Landlord.  [Not easy being a residential landlord in Connecticut these days.] As for the police officers - the Court found they were immune from the state claims as they were performing a discretionary governmental function and they were immune from the federal claims under the Federal Qualified Immunity afforded to them.
 
 

Biccio v. Brewer.
http://www.jud.state.ct.us/external/supapp/Cases/AROap/ap92/92AP518.pdf  
 Plaintiff's car collided with a state-owned ambulance.  The claims of individual negligence against the driver were dismissed for lack of subject matter jurisdiction, as those negligence claims were barred by the sovereign immunity provisions of C.G.S. Section 4-165.  The Plaintiff unsuccessfully argued that the Court should have known the real defendant-at-interest was the State, and thus, liability should attach under C.G.S. Section 52-556.  The Court held that there could be no judgment effecting or pertaining to the State, as they had not been named in the summons, and the Court would have lacked jurisdiction over it as a party.  While this seems clear on its face, the Appellate Court went to some length to justify its decision with prior precedent that service of process on a party is a prerequisite to the Court exercising personal jurisdiction over them.  The Court also held that the plaintiff's failure to plead a statutory basis for recklessness in the second count of his complaint, left the Court with no alternative but to charge only on common law recklessness.  The brief mention of one statutory cite was only contained in a negligence paragraph  carried over  from the first count.  Therefore, the trial court correctly refused to charge the jury on that statute for the second count in recklessness. 

Stefanoni v. Duncan .  

http://www.jud.state.ct.us/external/supapp/Cases/AROap/ap92/92AP525.pdf  

This was a case involving a prescriptive utility easement, a view restriction, and an access easement for Long Island Sound waters adjacent to Darien, that were subject to tidal variations.  Through a series of deed transfers in the 1970s', utility easements and access easements were created across the properties abutting the tidal pond.  The deeds made reference to a map that showed the location of utility easement and access easements.  During the construction of a residence, the utility lines deviated from the easement boundary before entering the dominant estate.  The underground utility lines, however, were evidenced by above-ground manholes, showing that the utility easement had not been properly followed.  The site plan map was also recorded with the Town Building Department showing the deviation from the easement.  The deeds between the various properties also included a view restriction, but over the years, all of the neighborhood properties had become heavily wooded, and the original access referenced in the deeds to the waterfront became no more than a path through the wooded area.  While the defendant was out of town, the plaintiffs undertook a massive clearcutting of trees on their property, in the easement area, and on the defendant's property, so as to improve their view of the tidal wetland, without prior approval of the Darien Planning & Zoning Commission that would have been required for such activity within a regulated Coastal Area Management Zone.  As part of  a  Town-ordered restoration the plaintiff installed stepping stones along the access path against the defendants' objections.  The plaintiff and the defendant tried to make nice, but when the defendant next left town, the plaintiff unilaterally installed a dock off the access path at the end of the defendant's property, where he could park his boat.  The map submitted with their Application for permission to install the dock implied that they owned the fee.  Needless to say, things heated up.

First, the Court held that the defendant had properly acquired a prescriptive utility easement for his underground sewer and water lines that deviated from the easement path.  The easement by prescription was found to exist pursuant to C.G.S. Section 47-37 in that the use was open, visible, continuous and uninterrupted for fifteen years, and made under a claim of right.  It must be open and visible because adverse possession could not be acquired by secret or by stealth.  Ordinarily, an underground sewer or pipe would be deemed a concealed unknown use, but here it had visible outlets on the surface.  It did not matter that the cleanouts might have been surrounded by trees or thick undergrowth.  The area was otherwise quite clear and accessible.

Next, the Trial Court had concluded that the plaintiff's easement to access the tidal wetlands did not afford afford them the right to construct a walkway and dock.  This finding was overturned by the Appellate Court, holding that the construction of a dock  may be  reasonably necessary for the covenant of enjoyment of an access easement when the access was specifically to the tidal wetlands, even without the conveyance of riparian or littoral rights.  A dock, however, must comply with the provisions of C.G.S. Section 22a-28 of the Inland Wetlands and Watercourse Act.  The Court noted that this was an issue of first impression for Connecticut as to whether or not the grant of an easement for access to water necessarily carries with it riparian rights, so as to be able to construct a dock.  Citing Maine and Maryland law, the Court concluded that such an easement does not alone automatically entitle one to construct a dock,  but if it makes no mention one way or the other, the conveyance is ambiguous.  In such a circumstance, the Court must look to extrinsic evidence.  Here, the attorney who had prepared all the deeds testified that the predecessors had used the waterway for swimming and canoeing.  While an upland owner who does not convey the riparian rights separately from their land, retains  the exclusive riparian right to wharf out from their waters, the Court held when their land is burdened by an easement affording another property owner access to the waters for boating, the upland owners' exclusive right to wharf out may not be absolute.  Thus, if the installation of a dock does not unreasonably burden the serviant estate, it is reasonably necessary for the enjoyment of the easement.  Accordingly, the plaintiff here, subject to wetlands approval, was allowed to install a walkway over the tidal wetlands area of their easement, and to build a dock that extended below the mean high water line.  Responding to the defendant s' concern that he would not be allowed by the State DEP to build his own dock right next to the plaintiff's dock, the Court found that  if  that were to happen, the defendant would have the right to use the plaintiff's dock.  The Court also seemed to stretch a bit by saying that the plaintiff should be allowed to sit outside  the easement to watch their children utilizing the waters, but could not install permanent benches, nor leave  boats there during the daytime.  Finally, on a factual determination, the Court held that the view easement may have been meant to apply to the plaintiff's second floor, but as literally read, should be viewed from the first floor of the plaintiff's house.

Judge McLoughlin dissented, concluding that the dock was not reasonably necessary to the plaintiff's enjoyment of the access, and that it would overly burden the serviant estate. 

 

Jones v. HNS Management Company, Inc.   The Appellate Court upheld a summary judgment in favor of the employer.  The employee claimed that after her office had been painted, she became sick from the fumes, which continued despite being assigned different office space and being given sick leave.  The employer had the office air tested, which reported no toxins, and a physician evaluation concluded that it was medically unlikely that paint fumes were causing the plaintiff symptoms.  Due to the plaintiff's inability to work in her own office, she was assigned different responsibilities, which she claimed was a demotion in violation of an implied covenant of good faith and fair dealing in employment.  The Trial Court's summary judgment in favor of the employer was upheld, finding that there was no evidence that the defendant had violated his policy manual or otherwise acted in bad faith.  The plaintiff's affidavits in opposition consisted mostly of inadmissible evidence and legal conclusions that could not be properly considered.  In upholding this summary judgment, the Appellate Court noted that al employer-employee relationships not governed by express contracts involve some type of implied contract of employment which, in turn, carries an implied covenant of good faith and fair dealing.  To show bad faith in violation of this principle, there must be fraud or deception of another or refusal to fulfill a contractual obligation due to sinister motive.  The plaintiff complained that the employee manual requiring employment reviews should have been complied with before demotion, but the defendant pointed out that the manual did not even address demotions.  The plaintiff's bold assertion that she could continue to perform her old job in opposition to the motion for summary judgment was not supported by any factual explanation how that could have been accomplished without returning to her regular office space.

 

CONNECTICUT SUPREME COURT:
Held that the trial court correctly interpreted CGS 31-76b(2) in holding that a municipality only has to start paying an employee when they punch in the clock at work and not when they are first called and notified they are needed and to report for overtime or special duty.  In so holding the Court rejected the arguments of the Commissioner of Labor who tried to distinguish employees who report to work at a regular time from those who are called with only short notice and lack of ability to organize their affairs.

Green vs HNS Management[Connecticut transit]  http://www.jud.state.ct.us/external/supapp/Cases/AROap/AP91/91AP515.pdf
Plaintiff claimed she fell in a bus and was injured because the bus accelerated suddenly, swerved, there was slush in the aisle, and other reasons.  The Court overturned her personal injury verdict against the bus company after first finding that despite the lack of either side filing written interrogatories to the jury, the General Verdict Rule did not apply to a situation where the plaintiff asserted only one cause of action (negligence) even though multiple factual grounds for the negligence were asserted.   Thus the court said it could reverse the verdict if any ground the jury might have ruled upon was in error.  [If the Rule had applied - it is the opposite - the Court would have to sustain the verdict if any of the grounds might have been valid.]  Here the court instructed the jury on all the negligent things the plaintiff claimed the driver had done.  One of them was failing to warn her that there might be slush in the aisle.  The court should not have done this as there was no evidence of advance notice to the driver of this defect.  Since the jury might have found liability for this reason alone - the entire verdict was thrown out.

SC17308 - New London v. Foss & Bourke, Inc
Another condemnation decision arising out of New London's redevelopment efforts.  In this case the property owner claimed it had not been fairly compensated for certain trade fixtures under the traditional analysis used by the Redevelopment Corporation and instead the court should have required use of The Assembled Economic Use Doctrine to determine fair value.  This doctrine adopted in Pennsylvania requires a separate award for machinery and fixtures that cannot be economically moved.  The Appellate Court rejected  the adoption of this doctrine in Connecticut and the Supreme Court affirmed that holding ,at least on the facts of this case.  The Court said it will decide whether that doctrine applies in Connecticut when it is confronted with a case where the condemnee has met its burden of proving that it required its unique building for its business and no other building within a reasonable distance was adaptable.

SC17387 - Board of Education v. Tavares Pediatric Center
The Board of Education of New Haven appealed the denial of a motion to quash a deposition notice and subpoenas issued in conjunction with letters rogatory issued out of an administrative Education Commission proceeding in Rhode Island about who will share the cost of educating a disabled child.  First the Court rejected the argument that it did not have jurisdiction to review the letters rogatory issued out of Rhode Island and allowed the appeal.  The New Haven Board was not a party to the underlying proceedings and since they were administrative - not judicial - the underlying action for the purposes of the appeal was the Connecticut trial court proceedings.  Turning to the merits of the Board's claims, the Court agreed that CGS 52-148e allowing the appointment of a commissioner to conduct in-state depositions for out-of-state proceedings is limited to either civil actions or probate proceedings - not administrative proceedings.  The trial court should have quashed the subpoenas.

APPELLATE COURT:
AC25554 - Yagemann v. Planning & Zoning Commission http://www.jud.state.ct.us/external/supapp/Cases/AROap/ap92/92ap40.pdf
This decision upheld approval of a special permit for a new church in a residential zone with site plan conditions that there not be simultaneous services at the "old church" 1/4 mile down the road and that the hall not be rented out to non-parishioners ver objection of the neighbors that the conditions were illegal and unenforceable.

Commissioner of Transportation v. Larobina    http://jud.ct.gov/external/supapp/Cases/AROap/ap92/92AP521.pdf
A condemnation appeal holding that its was acceptable for the trial court to reject the conclusions of the appellant's appraiser as not credible when his valuation was 10 X the State's expert's opinion.  Also held [citing a 1942 decision] that a challenge to the condemnation must be by way of a separate lawsuit.   The case also reviewed the law on how severance damages are measured.  In doing so - it held that it was within the discretion of the trial court to award damages as if the taking had been of the entire fee and not just an easement.

Cornfield Point Assn. v. Old Saybrook  - Here the abutting owners were held not to have acquired by adverse possession the town's right in certain unused road ends that ended at the beach which the town had acquired from a homeowner's association in the 1930's.  A town's fee ownership is immune from an adverse possession claim to the extent the property is held for the public's use.  Mere non-use does not defeat ownership for a public use as the use can be in the future.  The town is entitled to a rebuttable presumption that title is held for the public use even though it never maintained or improved the roads and the claimant must show an intent on the part of the town to abandon such use which they failed to do. The town's plan to improve the road ends and allow public parking was not inconsistent with the principal that ownership of a roadway for the public's benefit must allow access and use of the right of way for the enjoyment of the public.  Further as the roads were owned in fee by the town - if the town passes an ordinance to allow parking on the road ends, the roads would not be subject to the homeowner's association power to ban public parking on roadways within the Association as granted by a Special Act as the act said that local laws would trump the Association's rules.

Winn vs Posades - the Appellate Court upheld a PB 15-8 dismissal of the plaintiff administrator's claim of negligence for failure to establish a prima facia case of proximate cause for her decedent's death when she rested her case.  The defendant police officer was traveling up to 75 mph in a 25 mph zone going home on an errand when he crossed the intersection and collided with the defendant going 37 in a 35 mph zone.  The defendant had no recollection of the accident.  Thus the plaintiff only put on evidence of the collision and the speeds.  The Court said that was not enough to establish proximate cause of what caused the accident. [ Seems like a good expert might have been of some help here.]

 
 
 
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