Part

1
Common Law Causes of Action
1A-1 
ABUSE OF PROCESS
An action for abuse of process lies against any person who:
1) Uses a legal process against another;
2) in an improper manner or to accomplish a purpose for which it
was not designed.
Mozzochi v. Beck, 204 Conn. 490, 494 (1987).
Statute of Limitations
Three years from the date of the act complained of. Conn. Gen. Stat. § 52-577;
see Timbers v. Updike, Kelly & Spellacy, P.C., 83 Conn. App. 442, 446,
cert. denied, 271 Conn. 927 (2004).
Notes
“Abuse of process differs from [vexatious litigation] in that the gist of
the tort is not commencing an action or causing process to issue without
justification, but misusing, or misapplying process justified in itself for an
end other than that which it was designed to accomplish. The purpose for
which the process is used, once it is issued, is the only thing of importance.”
(Internal quotation marks omitted.) Lewis Truck & Trailer, Inc. v. Jandreau,
11 Conn. App. 168, 170-71 (1987). As a result, unlike actions for malicious
prosecution or vexatious litigation, the action for abuse of process does not
require proof of 1) the termination of the original proceeding; 2) the lack
of probable cause, or; 3) malice. Id.; see also Shaeffer v. O.K. Tool Co., 110
Conn. 528 (1930). Nonetheless, courts have stricken abuse of process claims
as premature because the original proceeding was still pending. See Cokic v.
Fiore Powersports, LLC, 2017 WL 5244195, at *2-3 (Conn. Super. Ct. Oct. 11,
2017) (citing Wes-Garde Components Grp., Inc. v. Carling Techs., Inc., 2010
WL 1497553 (Conn. Super. Ct. Mar. 10, 2010)). Moreover, an ulterior motive,
by itself, is not enough to establish abuse of process. See McCloskey v.
Angelina, 2017 WL 7053897, at *3 (Conn. Super. Ct. Dec. 22, 2017) (granting

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 1A-2 Accountant Malpractice

motion to strike because “an ulterior primary motive will not expose an actor
to liability if the process is used for its intended purpose”) (citing Ventres v.
Goodspeed Airport, LLC, 301 Conn. 194, 214 (2011)).
In addition, there is a heightened burden of proof for an abuse of process
claim against an attorney in order to balance the attorney’s primary duty of
robust representation of the interests of the client. Thus, a lawyer’s ethical duty
not to pursue groundless litigation “does not give rise to a third party action
for abuse of process unless the third party can point to specific misconduct
intended to cause specific injury outside of the normal contemplation of
private litigation.” Rieffel v. Johnston-Foote, 165 Conn. App. 391, 395 (2016)
(quoting Mozzochi, 204 Conn. at 497; see Suffield Dev. Assocs. Ltd. P’ship v.
Nat’l Loan Invs., L.P., 260 Conn. 766, 776 (2002) (defendants’ wrongful,
excessive and extortionate conduct in execution of judgment supported action
for abuse of process). Courts take the specificity requirement seriously. See
Mario v. Stratton, 2018 WL 1631439, at *2 (Conn. Super. Ct. Feb. 28, 2018)
(granting motion to strike abuse of process complaint against attorney because
allegations of “utterly baseless” litigation, and desire to “avoid and/or recoup
repayment of earned fees” and “force plaintiff to incur costs associated with
defending a lawsuit” are insufficiently specific).
In Larobina v. McDonald, 274 Conn. 394, 406 (2005), the Supreme Court
assumed without deciding that an abuse of process claim may be predicated on
conduct other than the institution and prosecution of a legal action. The Court
also held that, although success in the underlying action is not a prerequisite to
an abuse of process claim, the abuse of process claim is nevertheless premature
until the underlying action is completed, since the evidence in the underlying
claim will be relevant to the abuse of process action and allowing the abuse of
process action to proceed could chill vigorous representation of clients by their
counsel in the underlying action. Id. at 407-08; see MacDermid, Inc. v. Leonetti,
158 Conn. App. 176 (2015) (claim of discriminatory retaliation against workers’
compensation claimant premised solely on litigation misconduct may not be
brought prior to termination of underlying litigation).
Note that the Bankruptcy Code preempts vexatious litigation and abuse of
process actions in state court. Metcalf v. Fitzgerald, 333 Conn. 1, 8, 214 A.3d
361 (2019).

1A-2 ACCOUNTANT MALPRACTICE

To prevail on a claim of accountant malpractice, a plaintiff must establish the
following elements:
(1) a duty to conform to a professional standard of care for the
plaintiff’s protection;

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 Accountant Malpractice1A-2

(2) a deviation from that standard of care;

(3) injury; and
(4) a causal connection between the deviation and the claimed
injury.
Stuart v. Freiberg, 316 Conn. 809, 833 (2015).
Statute of Limitations
The statute of limitations for an action for accountant malpractice is three
years from the date of the alleged malpractice. Conn. Gen. Stat. § 52-577; see
Seeman v. Arthur Anderson & Co., 896 F. Supp. 250, 255 (D. Conn. 1995). The
Seeman court did not specifically decide, but suggested, that the “continuing
duty” doctrine would toll the running of the statute of limitations. Id. at 256.
Though the Seeman case did not decide the issue, logic suggests that the
“continuous representation” or “continuing duty” doctrines, applicable
for example in the context of legal malpractice claims, also should apply
to accountant malpractice. In Iacurci v. Sax, 313 Conn. 786, 807 (2014), the
Supreme Court held that the fraudulent concealment statute may toll the
three-year statute of limitations (but found that the plaintiff had failed to
demonstrate the statute’s applicability). See LEGAL MALPRACTICE, infra.
Notes
An accountant who merely prepares tax returns owes his client a professional
duty, not a fiduciary duty. See Iacurci v. Sax, 139 Conn. App. 386, 406-07
(2012), aff ’d, 313 Conn. 786 (2014). The former “implicates a duty of care,
while breach of a fiduciary duty implicates a duty of loyalty and honesty.”
Id. at 402 (quoting Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff &
Kotkin, 247 Conn. 48, 56-57 (1998)). However, whether a fiduciary relationship
exists depends in large measure on the specific nature of the accounting
services provided. See Iacurci v.Sax, 139 Conn. App. 386, 409-11 (2012)
(discussing numerous cases from other jurisdictions). Whether a fiduciary
duty exists is a question of law, subject to plenary review on appeal. Iacurci v.
Sax, 313 Conn. 786, 796 (2014).
As with other types of malpractice actions, unless a plaintiff offers proof
“that the defendant . . . assured or warranted a specific result,” then the claim
sounds only in tort and not in contract. Arnold v. Weinstein, Schwartz &
Pinkus, 1996 WL 93602, at *2 (Conn. Super. Ct. Feb. 13, 1996). Arnold
is the only case that discusses this question with regard to accountant
malpractice, but there appears to be a split of authority among the trial
courts in Connecticut with regard to medical malpractice. See MEDICAL
MALPRACTICE (STANDARD), infra. As with other species of malpractice,
a plaintiff must provide expert testimony to establish the relevant standard of
care and the breach thereof, unless there “is such an obvious and gross lack of

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 1A-3 Adverse Possession of Real Property

care and skill that it is clear even to a layperson.” Mukon v. Gollnick, 2013 WL
951328, at *2 (Conn. Super. Ct. Feb. 15, 2013). Likewise, a claim of accounting
malpractice does not require privity between the parties; in the absence
of privity, the plaintiff must be “the intended or foreseeable beneficiary of
the professional’s undertaking.” Stuart v. Freiburg, 2011 WL 3671904, at *9
(Conn. Super. Ct. July 15, 2011) (quoting Mozzochi v. Beck, 204 Conn. 490,
499 (1987)) (granting summary judgment on a malpractice claim because
plaintiffs were not intended beneficiaries of reports created by defendant
during the review of their deceased father’s estate). In addition, several courts
have held that accountants are exempt from suit under the judicially created
professional services exemption to the Connecticut Unfair Trade Practices
Act, but there is no appellate authority on the issue. See Baker v. Brodeur,
2012 WL 4040334, at *2 (Conn. Super. Ct. Aug. 21, 2012); see also Haynes v.
Yale-New Haven Hosp., 243 Conn. 17 (1997) (professional services exemption
bars CUTPA claims against health care providers).

1A-3 ADVERSE POSSESSION OF REAL PROPERTY

To acquire title to real property by adverse possession, a plaintiff must:
1) Oust an owner from possession of the property and possess the
property himself in a way that is:
2) actual;
3) open or visible;
4) hostile to the rights of the owner;
5) exclusive;
6) made under a claim of right; and
7) made without the consent of the owner;
8) for an uninterrupted 15-year period.
Alexson v. Foss, 276 Conn. 599, 614 n.13 (2006).
Statute of Limitations
There is, strictly speaking, no limitations period for adverse possession because
an adverse possessor acquires title by satisfying the above elements without
legal action. However, if the land owner ousted from possession wishes to
challenge the adverse possession, he must give notice of entry within the
15-year period and must bring a quiet title action within one year of giving such
notice. Conn. Gen. Stat. § 52-575(a); see Gemmell v. Lee, 59 Conn. App. 572,
578-79, cert. denied, 254 Conn. 951 (2000). The 15-year period is tolled for any
person who acquires title or a right of entry to any disputed piece of property
while “a minor, non compos mentis or imprisoned,” and such person has

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 Adverse Possession of Real Property1A-3

five years “after full age, coming of sound mind or release from prison” in
which to give record notice of his right or title. Conn. Gen. Stat. § 52-575(b).
Notes
The burden of proof for adverse possession is on the party claiming adverse
possession, Bennett v. Bowditch, 163 Conn. App. 750, 755 (2016), and requires
a showing of “clear and positive proof.” Smith v. Muellner, 283 Conn. 510,
536 (2007). There is a presumption against adverse possession for claims
between cotenants “based on a recognition that one cotenant’s possession
is not necessarily inconsistent with the title of the others.” O’Connor v.
Larocque, 302 Conn. 562, 581-82 (2011). Consequently, “possession taken
by one is ordinarily considered to be the possession by all and not adverse
to any cotenant.” Id. at 581 (citing Ruick v. Twarkins, 171 Conn. 149, 157
(1976)) (additional citations omitted); see also 3 Am. Jur. 2d 243-44, Adverse
Possession § 201 (2002). It is a substantial task to overcome this presumption.
“A cotenant claiming adversely to other cotenants must show actions of such
an unequivocal nature and so distinctly hostile to the rights of the other
cotenants that the intention to disseize is clear and unmistakable. Not only
must an actual intent to exclude others be demonstrated; but there also must
be proof of an ouster and exclusive possession so openly and notoriously
hostile that the cotenant will have notice of the adverse claim.” O’Connor,
302 Conn. at 582 (internal quotation and citation omitted); see also Hill v.
Jones, 118 Conn. 12, 16 (1934) (“[o]uster will not be presumed from mere
exclusive possession of the common property by one cotenant”). Similarly,
any interruption in the hostility of the possession is fatal to the adverse
possessor’s claim. See Brander v. Stoddard, 173 Conn. App. 730, 748-49, cert.
denied, 327 Conn. 928 (2017) (plaintiff’s reconciliation with owner and “gift
of lamb meat in appreciation for being able to use the disputed property”
negated claim of uninterrupted hostility for statutory period).
Property held by the state or a municipality is immune from a claim of adverse
possession, as long as the property in question is held for public use; there is
a rebuttable presumption of public use for any publicly-held property. See
American Trading Real Estate Props., Inc. v. Town of Trumbull, 215 Conn. 68,
77 (1990); Benjamin v. City of Norwalk, 170 Conn. App. 1, 18 (2016) (requiring a
clear and positive proof that the land is not held for public use).
A party cannot defend a summary process action—seeking to eject him from a
parcel of real property—by claiming he had permission to occupy the property,
and then seek title to the property in a separate action for adverse possession.
Under those circumstances, the party is collaterally estopped from making the
adverse possession claim by his concession in the summary process action that
his possession of the property was not “hostile.” (Note, however, that the party
could allege adverse possession as a counterclaim to the original summary

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 1A-4 Aiding a Tort

process action; it is only after the conclusion of that action that collateral
estoppel attaches). See Pollansky v. Pollansky, 162 Conn. App. 635, 655 (2016).

1A-4 AIDING A TORT

A person is liable to a third party for harm from the tortuous conduct of
another if the person:
1) Knows that the other’s conduct constitutes a breach of duty;
2) gives substantial assistance or encouragement to the other
person; and
3) the encouragement or assistance is a substantial factor in causing
the resulting tort.
Krawshuk v. Hollaway, 2017 WL 715585, at *2 (Conn. Super. Ct. Jan. 2,
2017) (citing Connecticut Nat’l Bank v. Giacomi, 233 Conn. 304, 329 (1995));
Carney v. DeWees, 136 Conn. 256, 262 (1949).
Statute of Limitations
Three years from the date of the act complained of. Conn. Gen. Stat. § 52-577.
Notes
“In Connecticut cases, the tort of aiding and abetting is often used
interchangeably with the principles outlined in § 876 of 4 Restatement
(Second), Torts.” Stein v. Gipstein, 2012 WL 4901093, at *1 (Conn. Super. Ct.
Sept. 20, 2012); see also Connecticut Nat’l Bank v. Giacomi, 242 Conn. 17, 63
n.42 (1997) (discussing principles of Restatement § 876). See also Katcher v.
3V Capital Partners, LP, 2011 WL 1105724, at *13 (Conn. Super. Ct. Feb. 1,
2011) (citing Palmieri v. Lee, Judicial District of New Haven, 1999 WL 1126317
(Conn. Super. Ct. Nov. 24, 1999) (Levin, J.)). Be aware, though, that not all
torts are created equal: The Supreme Court twice has declined “to decide
whether aiding and abetting a breach of a fiduciary duty is a viable cause of
action in Connecticut[.]” Flannery v. Singer Asset Fin. Co., LLC, 312 Conn.
286, 296 (2014) (citing Efthimiou v. Smith, 268 Conn. 499, 504-07 (2004)).
Also, aiding a tort claim cannot stand alone; there must be a valid underlying
tort claim. Consequently, rules limiting the underlying tort claims, such
as litigation privilege, also limit aiding a tort claim. Peterson v. Laurelhart
Condo. Ass’n, Inc., 2018 WL 4865946, at *5 (Conn. Super. Ct. Sept. 25, 2018).

1A-5 ANTICIPATORY BREACH OF CONTRACT

An action for anticipatory breach of contract requires proof that:
1) One party to a contract has repudiated his duty under the terms
of the contract;

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 Bailment—Loss of or Damage to Goods of Bailor1B-1

2) before the time for performance has arrived;

3) causing damages to the non-repudiating party.
Seligson v. Brower, 109 Conn. App. 749, 755 n.5 (2008).
Statute of Limitations
See BREACH OF CONTRACT, infra.
Notes
An action for anticipatory breach “allow[s] the nonbreaching party to
discharge his remaining duties of performance, and to initiate an action
without having to await the time for performance.” Pullman, Comley,
Bradley & Reeves v. Tuck-It-Away Bridgeport, Inc., 28 Conn. App. 460,
465, cert. denied, 223 Conn. 926 (1992). Such an action requires proof of a
breach similar to an ordinary breach of contract action. Id. The repudiation
element of an action for anticipatory breach “may be either verbal or
nonverbal . . . and can occur either by a statement that the promisor will not
perform or by a voluntary, affirmative act that indicates inability, or apparent
inability, substantially to perform.” Cottman Transmission Systems, Inc. v.
Hocap Corp., 71 Conn. App. 632, 639 (2002). Whether verbal or non-verbal,
express or implied, an “[a]nticipatory breach of contract occurs when a party
communicates a definite and unequivocal manifestation of intent not to
render the promised performance at the contractually agreed upon time.”
Andy’s Oil Service, Inc. v. Hobbs, 125 Conn. App. 708, 722 (2010), cert. denied,
300 Conn. 928 (2011). However, an anticipatory breach may be excused
if the other party could not possibly have performed its own contractual
obligations notwithstanding the breach. See Land Group, Inc. v. Palmieri, 123
Conn. App. 84, 92 (2010) (quoting 2 Restatement (Second), Contracts § 254,
p. 290 (1981)) (“a party’s duty to pay damages for total breach by repudiation
is discharged if it appears after the breach that there would have been a total
failure by the injured party to perform his return promise”). In other words,
he who breaches last sometimes breaches best.

1B-1 BAILMENT—LOSS OF OR DAMAGE TO GOODS OF

BAILOR
An action by a plaintiff for damage to goods entrusted to a defendant
requires proof of the following:
1) The delivery of personal property to the defendant;
2) to which the plaintiff retained title;
3) upon an express or implied contract to return that property to
the plaintiff when the contractual purpose has been fulfilled,

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 1B-1 Bailment—Loss of or Damage to Goods of Bailor

or to otherwise treat the property according to the plaintiff’s

direction;
4) followed by damage to, or loss of, the delivered property;
5) resulting from the defendant’s negligence.
B.A. Ballou & Co., Inc. v. Citytrust, 218 Conn. 749, 753 (1991) [1, 2, 3]; Barnett
Motor Transp. Co. v. Cummins Diesel Engines of Conn., Inc., 162 Conn. 59,
63 (1971) [4, 5].
Statute of Limitations
The statute of limitations for an action for damage to goods of a bailor is
unclear. If “a bailment claim . . . sounds in negligence, the same two-year
time bar as § 52-584 applies,” Brian’s Floor Covering Supplies, LLC v. Spring
Meadow Elderly Apartments, 2006 WL 894929, at *8 (Conn. Super. Ct.
Mar. 22, 2006), but, if the claim sounds in contract, even an implied contract,
then the limitations period is six years. See Suk Semoon v. Wooster Sch.
Corp., 2010 WL 3259705, at *7 (Conn. Super. Ct. July 19, 2010) (citing Conn.
Gen. Stat. § 52-576(a)). Brian’s Floor notwithstanding, query when, if ever, the
shorter period applies, given that, the premise for most bailment claims is an
implied contact between the bailor and bailee.
Notes
A bailment is “a relationship . . . that arises when the owner, while retaining
general title, delivers personal property to another for some particular
purpose upon an express or implied contract to redeliver the goods when the
purpose has been fulfilled, or to otherwise deal with the goods according to
the bailor’s directions . . . . In a bailment, the owner or bailor has a general
property interest in the goods bailed . . . . The bailee, on the other hand,
has mere possession of items left in its care pursuant to the bailment.”
State v. Smith, 148 Conn. App. 684, 707-08 (2014), aff ’d, 317 Conn. 338 (2015)
(ellipses in original). The sine qua non of a bailment is “the express or implied
assumption of control over the property by the bailee.” Hartman v. Black &
Decker Mfg. Co., 16 Conn. App. 1, 6, (1988).
An express or implied contract between the bailor and bailee often creates a
bailment. Separate documents do not need to reference one another in order
to form an integrated, express contract for a bailment. See Abele Tractor &
Equip. Co. v. Sono Stone & Gravel, LLC, 151 Conn. App. 486, 510-11 (2014)
(rental agreements and delivery tickets for construction equipment
constituted integrated contract between parties). However, “[i]n the care of
property, the bailee’s contractual obligation is to exercise due care for the
safekeeping of the bailed property, and, so, essentially, when loss or damage
occurs, liability is based on negligence, even though negligence constitutes
a breach of contract.” Barnett, 162 Conn. at 63; see also Rizzuto v. Baltrush,

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 Battery1B-2

2012 WL 5992701, at *3 (Conn. Super. Ct. Nov. 13, 2012) (“a bailment does
not necessarily depend upon a contractual relation; it is the element of lawful
possession, however created, and the duty to account for the thing as the
property of another that creates the bailment, regardless of whether such
possession is based on contract in the ordinary sense or not”). In this regard,
courts (and litigants) sometimes gloss over the distinction between a strict
bailment and a constructive one. See CONSTRUCTIVE BAILMENT, infra.
A bailment gives rise to a fiduciary relationship between the bailee and the
bailor. See Striegel v. Antiques at Pompey Hollow, LLC, 2012 WL 3264218,
at *2 (Conn. Super. Ct. July 18, 2012). The burden of proving the existence
of a bailment is on the party claiming title to the property. B.A. Ballou, 218
Conn. at 752. However, “once a bailment has been established and the bailee
is unable to redeliver the subject of the bailment in an undamaged condition
a presumption arises that the damage to or loss of the bailed property was the
result of the bailee’s negligence.” Barnett, 162 Conn. at 63. The presumption
remains in effect “unless and until the bailee proves the actual circumstances
involved in the damaging of the property,” at which point the burden of
proof shifts back to the bailor to prove negligence by the bailee. National
Broadcasting Co. v. Rose, 153 Conn. 219, 225 (1965). Such proof by a bailee
requires “substantial contravening evidence . . . [including] the precautions
taken to prevent damage, destruction or loss . . . .” Pacelli v. Butte, 1999 WL
1212227, at *4 (Conn. Super. Ct. Dec. 3, 1999).
The measure of damages for loss of, or damage to, property entrusted to a
bailor “is the value of the property at the time of its [damage] or loss, with
interest from that time . . . .” Griffin v. Nationwide Moving & Storage Co., Inc.,
187 Conn. 405, 419 (1982).

1B-2 BATTERY
To prevail on a claim of battery, a plaintiff must establish the following
elements:
1) Another person;
2) acts with the intent to cause harmful or offensive contact, or
to create the imminent apprehension of harmful or offensive
contact;
3) to the plaintiff, or to a third person; and
4) a harmful contact with the plaintiff is the direct or indirect result
of that intentional act.
Simms v. Chiasson, 277 Conn. 319, 331 (2006) (citing Restatement (Second) of
Torts, § 13).

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 1B-3 Breach of Contract

Statute of Limitations
The statute of limitations for a claim of battery is three years. Conn. Gen.
Stat. § 52-577.
Notes
The failure to allege a “physical contact” is grounds to strike a complaint
for battery. See Texeira v. Curren, 2014 WL 4814722, at *2 (Conn. Super. Ct.
Aug. 21, 2014) (granting motion to strike). Moreover, the contact must be
with the plaintiff himself; indirect harmful contact is insufficient as a matter
of law. See Meade v. Briarwood Acquisitions, LLC, 2014 WL 7271955, at *1
n.1 & *3 (Conn. Super. Ct. Nov. 12, 2014) (striking claim of battery by tenant
based on allegations that landlord’s agents “entered the dwelling unit on a
false pretext and, employing chain saws, cut holes in an exterior wall of the
unit thus exposing its occupant to harsh winter conditions” and that tenant’s
“protests eventually resulted in his being arrested for breach of the peace”).
So, too, is the failure to allege facts from which a jury could find intent. See
Forsyth v. Richardson, 2015 WL 5134350, at *3 (Conn. Super. Ct. July 29, 2015)
(striking battery count based on allegation that defendant’s drunk driving
caused car accident). However, the degree of harmful contact that must
result from an intentional touching for it to constitute battery is unclear. See
Telkamp v. Vitas Healthcare Corp. Atl., 2016 WL 777906, at *9 (D. Conn.
Feb. 29, 2016) (“[a]lthough battery requires physical contact, actual or
substantial harm need not result from the contact for a defendant to be liable”).
In the context of medical care, battery requires “an absence of consent,”
Gallinari v. Kloth, 148 F. Supp. 3d 202, 212 (D. Conn. 2015), not merely a lack
of informed consent. Thus, “[t]he theory of battery as a basis for recovery
against a physician has generally been limited to situations where he fails
to obtain any consent to the particular treatment or performs a different
procedure from the one for which consent has been given, or where he realizes
that the patient does not understand what the operation entails.” Lambert v.
Stovell, 205 Conn. 1, 4 (1987) (emphasis in original). As a consequence, a
patient does not have to comply with the statutory requirements for a medical
malpractice action to sue her doctor for battery. See Wood v. Rutherford, 187
Conn. App. 61, 74-78 (2019) (trial court improperly struck battery claim for
failure to comply with statute); Conn. Gen. Stat. § 52-190a.

1B-3 BREACH OF CONTRACT

The elements of a breach of contract action are:
1) Formation of an agreement;
2) performance by one of the parties to that agreement;

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 Breach of Contract1B-3

3) breach of a material term or terms of the agreement by another

party; and
4) damages resulting from that breach.
Seligson v. Brower, 109 Conn. App. 749, 753 (2008).
Statute of Limitations
There are two statutes of limitations applicable to breach of contract actions:
Conn. Gen. Stat. §§ 52-576(a) & 52-581(a). The former has a limitations period
of six years; the latter, three years. Section 52-576(a) governs the limitations
period for written contracts. While, at first blush, § 52-581(a) appears to
govern oral contracts, there is some unfortunately broad language in
§ 52-576(a) (“on any simple or implied contract”) that might make it applicable
to oral contracts as well. The Supreme Court “has distinguished the statutes,
however, by construing § 52-581, the three-year statute of limitations, as
applying only to executory contracts . . . . A contract is executory when
neither party has fully performed its contractual obligations and is executed
when one party has fully performed its contractual obligations.” Bagoly v.
Riccio, 102 Conn. App. 792, 799, cert. denied, 284 Conn. 931 (2007) (emphasis
in original). The cause of action accrues “at the time the breach of contract
occurs, that is, when the injury has been inflicted.” Bracken v. Town of
Windsor Locks, 182 Conn. App. 312, 322 (2018).
Notes
The dispositive issue in any contract dispute is the intent of the parties. If
the language of a contract is ambiguous, then construction of that contract
is a question of fact. O’Connor v. Waterbury, 286 Conn. 732, 743 (2008). “In
order for an enforceable contract to exist, the court must find that the parties’
minds had truly met . . . . If there has been a misunderstanding between the
parties, or a misapprehension by one or both so that their minds have never
met, no contract has been entered into by them and the court will not make
for them a contract which they themselves did not make.” Summerhill, LLC v.
City of Meriden, 162 Conn. App. 469, 474-75 (2016) (ellipsis in original).
However, “[i]f a contract is unambiguous within its four corners, intent of
the parties is a question of law . . . .” Montoya v. Montoya, 280 Conn. 605,
612 (2006). The same is true for a contract between sophisticated commercial
parties made with the advice of counsel. See Tallmadge Bros., Inc. v. Iroquois
Gas Transmission Sys., L.P., 252 Conn. 479, 496-97 (2000).
Generally, “a tort cause of action that is based upon the same facts
underlying a contract claim will be dismissed as a mere duplication of
the contract cause of action . . . particularly where . . . both seek identical
damages.” Alpha Beta Capital Partners, L.P. v. Pursuit Inv. Mgmt., LLC,
193 Conn. App. 381, 420 (2019), cert. denied, 334 Conn. 911 (2020) (ellipses

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 1B-3 Breach of Contract

in original), To state a prima facie case for breach of contract, there must
be “an allegation of legal consideration, which consists of a benefit to the
party promising, or a loss or detriment to the party to whom the promise is
made . . . .” Sharp Elecs. Corp. v. Solaire Dev., LLC, 156 Conn. App. 17, 36
(2015) (citation omitted). The exchange of promises, by itself, is sufficient
consideration for a prima facie case. Bilbao v. Goodwin, 333 Conn. 599, 617
(2019). Likewise, if a contract requires a party to comply with a condition
precedent, then the failure to allege such compliance is fatal. See U.S. Bank
Nat’l Ass’n v. Eichten, 184 Conn. App. 727, 761 (2018).
“[C]ausation . . . is . . . part and parcel of a party’s claim for breach of
contract damages.” Meadowbrook Ctr., Inc. v. Buchman, 149 Conn. App. 177,
186, 90 A.3d 219, 226 (2014). “[U]nder Connecticut law, the causation
standard . . . asks not whether a defendant’s conduct was a proximate cause
of the plaintiff’s injuries, but rather whether those injuries were foreseeable
to the defendant and naturally and directly resulted from the defendant’s
conduct.” Id. at 188-89. Thus, any loss must “aris[e] naturally, i.e., according
to the usual course of things, from such breach of contract itself.” Theodore v.
Lifeline Sys. Co., 173 Conn. App. 291, 306 n.5 (2017).
Damages, too, are a necessary element and “are recoverable only to the
extent that the evidence affords a sufficient basis for estimating their amount
in money with reasonable certainty . . . Thus, [t]he court must have evidence
by which it can calculate the damages, which is not merely subjective or
speculative, but which allows for some objective ascertainment of the
amount.” Valley Nat’l Bank v. Marcano, 174 Conn. App. 206, 217 (2017). A
promisee’s lost profits are one proper measure of its damages; RBC Nice
Bearings, Inc. v. SKF USA, Inc., 146 Conn. App. 288, 312, cert. granted in
part, 310 Conn. 962 (2013); as are “punitive damages for attorney’s fees . . . [if]
[e]lements of tort such as wanton or malicious injury or reckless indifference
to the interests of others giv[e] a tortious overtone to a breach of contract
action.” Capstone Bldg. Corp. v. Am. Motorists Ins. Co., 308 Conn. 760, 802
n.40 (2013). However, a plaintiff does not have to prove actual damages to
prevail on a breach of contract claim. Even “[i]f a party has suffered no
demonstrable harm . . . that party may be entitled . . . to nominal damages for
breach of contract[.]” Lydall, Inc. v. Ruschmeyer, 282 Conn. 209, 254 (2007)
(ellipses in original).
An allegation that an “attorney violated the specific instructions of his client
sound[s] in breach of contract[,]” as does an allegation of “an attorney’s
failure to comply with the specific provisions of a contract . . . .” Meyers v.
Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 311 Conn. 282, 292 (2014).
However, “claims alleging that the defendant attorney had performed the
required tasks but in a deficient manner sound[s] in tort . . . .” Id. at 294;

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see LEGAL MALPRACTICE, infra. In addition, a “simple breach of

contract[,]” by itself, does not form the basis for a violation of CUTPA. Milford
Paintball, LLC v. Wampus Milford Assocs., LLC, 156 Conn. App. 750, 764,
cert. denied, 317 Conn. 912 (2015). See UNFAIR TRADE PRACTICES, infra.

1B-4 BREACH OF FIDUCIARY DUTY

To prevail on a claim of breach of fiduciary duty, a plaintiff must establish:
1) The existence of a relationship between the parties;
2) characterized by a unique degree of trust and confidence;
3) in which one party has superior knowledge, skill or expertise,
and is under a duty thereby to represent the interests of the other
party; and
4) a breach of that duty causing harm to the plaintiff.
See Biller Assocs. v. Peterkin, 269 Conn. 716, 723 (2004).
Statute of Limitations
The statute of limitations for a claim of breach of fiduciary duty is three
years. Krondes v. Norwalk Savings Society, 53 Conn. App. 102, 117 (1999).
Notes
Beyond a few “per se categories . . . a flexible approach determines the
existence of a fiduciary duty, which allows the law to adapt to evolving
situations wherein recognizing a fiduciary duty might be appropriate.”
Iacurci v. Sax, 313 Conn. 786, 800 (2014). The sine qua non of a fiduciary
relationship is the duty of loyalty—the obligation to act in the best interests
of the person to whom the duty is owed and to act in good faith with respect
to any matter within the scope of that duty. See Godina v. Resinall Int’l, Inc.,
677 F. Supp. 2d 560, 575 (D. Conn. 2009). There is no bright line rule for
the existence of a fiduciary relationship. However, it often arises when “the
fiduciary was either in a dominant position, thereby creating a relationship
of dependency, or was under a specific duty to act for the benefit of another.”
Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 38 (2000). On the other
hand, no such relationship exists when “the parties were either dealing at
arm’s length, thereby lacking a relationship of dominance and dependence, or
the parties were not engaged in a relationship of special trust and confidence.”
Id. at 38-39. “Once a [fiduciary] relationship is found to exist, the burden of
proving fair dealing properly shifts to the fiduciary.” Konover Dev. Corp. v.
Zeller, 228 Conn. 206, 219 (1994). The burden of proof in such circumstances
has been alternately described as “clear and convincing evidence, clear and
satisfactory evidence or clear, convincing and unequivocal evidence . . . .”
Cadle Co. v. D’Addario, 268 Conn. 441, 455 (2004).

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 1B-4 Breach of Fiduciary Duty

The existence of a fiduciary duty is a question of fact, and the duty does not
exist simply because one or the other party is in a position of trust. However,
documents that create positions of trust often specify that the position
carries with it a fiduciary duty, See, e.g., Pasco Common Condo. Ass’n,
Inc. v. Benson, 192 Conn. App. 479, 511 (2019). The possibility of a fiduciary
relationship is inherent in certain professions; a state marshal, for example,
may owe a fiduciary duty to an ejectee under certain circumstances. See
McLoughlin v. Martin, 2016 WL 1371255, at *13 (Conn. Super. Ct. Mar. 23,
2016) (denying marshal’s motion for summary judgment in suit over failure
to properly store ejectee’s personal property); see also Conn. Gen. Stat. § 49-
22. Similarly, a private boarding school may owe a fiduciary duty to students
who are minors. See Roe v. Hotchkiss Sch., 2019 WL 2912512, at *7 (D.
Conn. July 8, 2019). In addition, “The fact that one party trusts another is
not dispositive of whether a fiduciary relationship exists . . . rather, proof of
a fiduciary duty requires an evidentiary showing of a unique degree of trust
and confidence between the parties such that the [defendant] undertook to
act primarily for the benefit of the plaintiff.” Golek v. St. Mary’s
Hosp., Inc., 133 Conn. App. 182, 197 (2012) (citation omitted; internal
quotation marks omitted). Even in the context of a professional relationship,
professional negligence alone does not automatically support a claim for
breach of fiduciary duty. “Although an attorney-client relationship imposes
a fiduciary duty on the attorney . . . not every instance of professional
negligence results in a breach of that fiduciary duty . . . . Professional
negligence implicates a duty of care, while breach of a fiduciary duty
implicates a duty of loyalty and honesty.” Iacurci v. Sax, 139 Conn. App. 386,
402 (2012), aff ’d, 313 Conn. 786 (2014) (citations omitted; internal quotation
marks omitted) (citing Beverly Hills Concepts, Inc. v. Schatz & Schatz,
Ribicoff & Kotkin, 247 Conn. 48, 56-57 (1998)).
Under Connecticut law, an intentional tort does not require proof of actual
damages, but a negligent tort does. See Right v. Breen, 277 Conn. 364, 376-
77 (2006). In keeping with this distinction, a plaintiff may recover nominal
damages for an intentional breach of fiduciary duty, but must prove actual
harm for a negligent breach of the same duty. See Learning Care Grp., Inc. v.
Armetta, 2016 WL 953212, at *12 (D. Conn. Mar. 11, 2016) (citing Connecticut
Student Loan Found. v. Enter. Recovery Sys., Inc., 2011 WL 1363772, at *3 n.6
(D. Conn. Apr. 11, 2011), and Fazzone, Baillie, Ryan & Seadale, LLC v. Baillie,
Hall & Hershman, P.C., 2007 WL 155161, at *6 (Conn. Super. Ct. Jan. 2,
2007)). Moreover, an award of punitive damages is not a fig leaf if the jury
awards no actual damages because “a demand for punitive damages is not a
freestanding claim; rather, it is parasitic and possesses no viability absent its
attachment to a substantive cause of action.” Rendahl v. Peluso, 173 Conn.

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 Bystander Emotional Distress1B-5

App. 66, 100 (2017) (jury’s failure to award damages after finding for plaintiff
on liability made verdict ambiguous despite award of punitive damages).

1B-5 BYSTANDER EMOTIONAL DISTRESS

A cause of action for bystander emotional distress requires proof of:
1) The death of, or serious physical injury to;
2) a close relative of the plaintiff;
3) where the plaintiff witnesses either the event, or conduct that
causes the harm, or its immediate aftermath; and
4) the plaintiff suffers serious emotional injury as a result.
Clohessy v. Bachelor, 237 Conn. 31, 56 (1996).
Statute of Limitations
The statute of limitations for bystander emotional distress depends on the
nature of the alleged conduct by the defendant that gave rise to the distress.
If the defendant allegedly was negligent or reckless, then the limitations
period is two years; if the defendant allegedly acted intentionally, then the
limitations period is three years. See Schwartz v. Town of Plainville, 483 F.
Supp. 2d 192, 197 n.3 (D. Conn. 2007); see also Conn. Gen. Stat. §§ 52-577 &
52-584.
Notes
Connecticut first adopted a cause of action for bystander emotional distress
in Clohessy, and its basic parameters have not changed since. First, “the
injury to the victim must be substantial,” i.e., either death, or serious physical
injury, because “[a]ny injury to one who is closely related to the bystander
has an emotional impact. To a sensitive parent, witnessing a minor injury to
his or her child could produce an emotional response and result in serious
injury.” Clohessy v. Bachelor, 237 Conn. 31, 53-54 (1996). Second, the plaintiff
and victim must be “closely related.” Id. at 52. So far, the Supreme Court
has held only that parents and siblings qualify, but neither the Supreme nor
Appellate Court has discussed whether other relations—e.g., grandparents—
qualify as well. Cf. Yovino v. Big Bubba’s BBQ, LLC, 49 Conn. Supp. 555,
565 (2006) (noting split of authority among Connecticut trial courts as to
whether fiancée is “closely related” within meaning of Clohessy). Third, “the
bystander’s emotional injury must be caused by the contemporaneous sensory
perception of the event or conduct that causes the injury . . . or by viewing the
victim immediately after the injury causing the event if no material change
has occurred with respect to the victim’s location and condition.” Clohessy v.
Bachelor, 237 Conn. 31, 52 (1996). Finally, the plaintiff “must have sustained
a serious emotional injury—that is, a reaction beyond that which would be

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anticipated in a disinterested witness and which is not an abnormal response

to the circumstance.” Id. at 54.
A bystander emotional distress claim is derivative and, therefore, is viable
only if there is a predicate action by the injured party. Graham v. Friedlander,
334 Conn. 564, 579 (2020); see Gilman v. Shames, 189 Conn. App. 736,
752 (2019) (affirming motion to dismiss bystander emotional distress
claim not brought in conjunction with wrongful death claim). Likewise,
several Superior Court decisions hold that bystander emotional distress is
derivative of the predicate cause of action—and so, a settlement of the latter
extinguishes the former. See Pascola-Milton v. Millard, 2018 WL 7709953,
at *2 (Conn. Super. Ct. Nov. 6, 2018); Boyd v. New London Hous. Auth., 2018
WL 3967618, at *4 (Conn. Super. Ct. Aug. 7, 2018); Austin v. Safeco Ins. Co.
of Ill., 2016 WL 6237633, at *3 (Conn. Super. Ct. Sept. 22, 2016). Note that
the derivative nature of bystander emotional distress is not jurisdictional; a
defendant must raise the issue properly, i.e., by a timely motion to dismiss
for lack of personal jurisdiction, or a motion for summary judgment. See
Pascola-Milton, 2018 WL 7709953, at *2 (denying untimely motion to dismiss).
Though Connecticut courts have not weighed in on whether other relations
can make a bystander emotional distress claim, at least one Superior Court
has refused to strike a claim for bystander emotional distress resulting
from the death of a pet. The court in Vaneck v. Drew, 2009 WL 1333918
(Conn. Super. Ct. Apr. 20, 2009) held that a pet owner could meet all of
the established criteria for a bystander emotional distress claim and noted
that the legislature had acknowledged the intrinsic value of the relationship
between an individual and his or her pet by passing Public Act No. 07-78, now
codified as Conn. Gen. Stat. § 46b-15(b), explicitly providing that Superior
Court judges may issue family protective orders with respect to family pets.
In Squeo v. Norwalk Hosp. Ass’n, 316 Conn. 558 (2015), the Supreme Court
overruled Maloney v. Conroy, 208 Conn. 392 (1988), and held that, “subject
to the four conditions we established in Clohessy . . . a bystander to medical
malpractice may recover for the severe emotional distress that he or she
suffers as a direct result of contemporaneously observing gross professional
negligence such that the bystander is aware, at the time, not only that the
defendant’s conduct is improper but also that it will likely result in the
death of or serious injury to the primary victim.” Squeo, 316 Conn. at 580-
81. However, Squeo only opens the door a crack: The opinion opens with
the admonition “that bystander claims should be available in the medical
malpractice context only under extremely limited circumstances[,]” id. at 560,
and “emphasize[s] . . . that the contemporaneous perception requirement is
an important limitation on any claim for bystander emotional distress.” Id.
at 581 n.13. The Appellate Court has heeded this admonition. See Marsala v.

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 Civil Conspiracy1C-1

Yale-New Haven Hosp., Inc., 166 Conn. App. 432, 456 (2016) (affirming
summary judgment because family members did not “contemporaneously
observe” hospital’s removal of patient’s ventilator).

1C-1 CIVIL CONSPIRACY

The elements of a civil action for conspiracy are:
1) A combination between two or more persons;
2) to do a criminal or an unlawful act or a lawful act by criminal or
unlawful means;
3) an act done by one or more of the conspirators pursuant to the
scheme and in furtherance of the object;
4) which act results in damage to the plaintiff.
American Diamond Exch., Inc. v. Alpert, 101 Conn. App. 83, 99-100 (2007);
Pellet v. Keller Williams Realty Corp., 177 Conn. App. 42, 59 (2017).
Statute of Limitations
Three years from the date of the act complained of. Conn. Gen. Stat. § 52-577;
Labow v. Rubin, 95 Conn. App. 454, 469-70 (2006).
Notes
The existence of a conspiracy, by itself, is not actionable because a conspiracy
causes no harm by the mere fact of it. See Charter Oak Lending Group, LLC v.
August, 127 Conn. App. 428, 446 (2011). Rather, “[t]he action is for damages
caused by acts committed pursuant to a formed conspiracy . . . .” Id. As such,
“to state a cause of action, a claim of civil conspiracy must be joined with an
allegation of a substantive tort.” Macomber v. Travelers Prop. & Cas. Corp.,
277 Conn. 617, 636 (2006). If the substantive tort fails to pass muster, the civil
conspiracy claim dies along with it. See McClancy v. Bank of Am., N.A., 2016
WL 785409, at *8-9 (Conn. Super. Ct. Jan. 28, 2016); Stradinger v. Griffin Hosp.,
2015 WL 9694334, at *7 (Conn. Super. Ct. Dec. 11, 2015) (dismissing civil
conspiracy claim because absolute immunity barred statutory theft claim that
formed basis for conspiracy allegation). In addition, the conspirators must
agree “to do a criminal or unlawful act[,]” and merely filing an “untruthful”
lawsuit does not satisfy this element. Bozelko v. Cote, 2014 WL 7714341, at *2
(Conn. Super. Ct. Dec. 18, 2014) (granting motion to strike conspiracy count).
However, the unlawful act can be a tort, if the tort involves nefarious conduct.
See Elm City Food Coop., Inc. v. McElroy, Deutsch, Mulvaney & Carpenter,
LLP, 2020 WL 918797, at *8 (Conn. Super. Ct. Jan. 27, 2020) (“Connecticut
jurisprudence makes clear that a viable civil conspiracy claim only requires
an allegation of underlying tortious conduct”) (citing Larobina v. McDonald,
274 Conn. 394, 408 (2005)). Under the intracorporate conspiracy doctrine,

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 1C-2 Club or Association—Wrongful Expulsion From

“[e]mployees of a corporation acting in the scope of their employment cannot

conspire with one another or with the corporation that employs them; each acts
for the corporation and the corporation cannot conspire with itself.” Harp v.
King, 266 Conn. 747, 781 (2003) (emphasis in original).
As in a criminal conspiracy, proof of agreement does not require the plaintiff
“to establish that the defendant and his coconspirators signed papers,
shook hands, or uttered the words we have an agreement . . . . The requisite
agreement or confederation may be inferred from proof of the separate acts
of the individuals accused as coconspirators and from the circumstances
surrounding the commission of these acts.” American Diamond Exch.,
Inc. v. Alpert, 101 Conn. App. 83, 100 (2007) (ellipses in original) (quoting
State v. Patterson, 276 Conn. 452, 462 (2005)).

1C-2 CLUB OR ASSOCIATION—WRONGFUL EXPULSION

FROM
Although courts generally will not interfere in the activities of private
clubs or associations, a member wrongfully expelled in violation of the
association’s by laws will have a cause of action for mandamus or for
damages. See Sterner v. Saugatuck Harbor Yacht Club, Inc., 188 Conn. 531
(1982); Davenport v. Society of Cincinnati in State of Conn., 46 Conn.
Supp. 411 (1999). See also Marcinszyk v. Miamogue Yacht Club, 2008 WL
5540475 (Conn. Super. Ct. Dec. 19, 2008).

1C-3 CONCEALMENT OF DEFECT BY SELLER OF REAL

PROPERTY
In order to prevail on a claim that a seller of real property has concealed a
defect in that property, a plaintiff must establish the following elements:
1) A material defect in a piece of real property sold to the plaintiff;
2) concealed by the defendant, or not disclosed by him at the time
of the sale; and
3) the defect was not reasonably discoverable by the plaintiff prior
to the sale.
Siudyla v. ChemExec Relocation Sys., Inc., 23 Conn. App. 180, 185 (1990) [3];
American Home Assurance Co. v. Briem, 1992 WL 79830, at *2 (Conn. Super.
Ct. Apr. 10, 1992) [1, 2].
Statute of Limitations
Because such an action sounds in breach of contract, and because—pursuant
to Connecticut’s Statute of Frauds—contracts for the purchase of real

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 Constructive Bailment1C-4

property must be in writing, the limitations period for a claim of concealment

of a defect in real property by the seller is likely six years. See Conn. Gen.
Stat. § 52-576(a). However, both Siudyla and American Home Assurance
describe this cause of action as a species of common-law fraud. See Siudyla,
23 Conn. App. at 185; American Home Assurance, 1992 WL 79830, at *2.
As such, the limitations period potentially is three years and not six. See
FRAUD, infra.
Notes
Many contracts for the purchase of real estate contain an “as is” clause,
which state that the buyer has examined the property, is satisfied with its
condition and accepts it “as is.” However, those clauses usually contain an
exception for concealed/hidden defects and the breach of that exception often
gives rise to an action by the plaintiff-buyer once he learns of a previously
unknown defect. See, e.g., Sosin v. Scinto, 1998 WL165056, at *5 (Conn.
Super. Ct. Apr. 2, 1998).

1C-4 CONSTRUCTIVE BAILMENT

A cause of action for constructive bailment requires proof of the following
elements:
1) Lawful possession of personal property belonging to the plaintiff
by the defendant;
2) in the absence of a bailment contract;
3) under such circumstances that the law requires the defendant to
keep that property safe and redeliver it to the plaintiff.
H.J. Kelly & Assocs. v. City of Meriden, 2008 WL 496688, at *7 (Conn. Super.
Ct. Jan. 17, 2008).
Statute of Limitations
If a plaintiff seeks to impose a constructive bailment to recover for damage
to his property caused by the constructive bailor, the statute of limitations
likely is two years from the date the damage is, or reasonably should have
been discovered. See BAILMENT, supra; Davis v. McDermott Chevrolet, Inc.,
2005 WL 525558, at *1 (Conn. Super. Ct. Jan. 14, 2005). However, given the
equitable nature of a constructive bailment, it may be possible to argue that,
as with other equitable remedies, no limitations period applies (but, if that
argument is made, beware the doctrine of laches).
Notes
Although a legal cause of action, constructive bailment has an equitable
character. As with equitable remedies such as unjust enrichment, the law
often imposes a constructive bailment, in the absence of any contractual

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 1C-5 Constructive Discharge

relationship between the parties, when the facts and circumstances make that
the just result. See H.J. Kelly & Assocs. v. City of Meriden, 2008 WL 496688,
at *7 (Conn. Super. Ct. Jan. 17, 2008). Indeed, “[a] constructive bailment may
occur even in the absence of the voluntary delivery and acceptance of the
property which is usually necessary to create a bailment relationship. For
example, a constructive bailment arises when possession of personal property
passes from one person to another by mistake or accident.” H.J. Kelly &
Assocs. v. City of Meriden, 2008 WL 496688, at *7 (Conn. Super. Ct. Jan. 17,
2008) (citing 8A Am. Jur. 2d 476 Bailments § 12 (1997)). “The fulfillment of
the bailor’s duty generally requires it to inspect the premises to ensure they
are appropriate for storing the bailed items . . . and storing bailed items in a
location that exposes them to a risk that was not known to the bailee can be
a violation of that duty”; Martin, Lucas & Chioffi, LLP v. Bank of Am., N.A.,
714 F. Supp. 2d 303, 314 (D. Conn. 2010) (internal citation omitted), but see
Cichon v. Walsh, 2010 WL 797161, at *2 (Conn. Super. Ct. Feb. 5, 2010) (no
actual or constructive bailment over car belonging to nightclub’s audiovisual
technician because he “never gave his car keys to anyone connected to the
club”).

1C-5 CONSTRUCTIVE DISCHARGE

A cause of action for constructive discharge requires proof of the following
elements:
1) An employer intentionally created an intolerable work
atmosphere;
2) that forced an employee to quit involuntarily.
See Karagozian v. USV Optical, Inc., 186 Conn. App. 857, 866-67 (2019), aff ’d,
2020 WL 1889057 (Slip. Op., Apr. 15, 2020); Brittell v. Dep’t of Corr., 247
Conn. 148, 178 (1998).
Statute of Limitations
Though no case specifically addresses the limitations period for a constructive
discharge action, the three-year limitations period in Conn. Gen. Stat.
§ 52-577 governs wrongful discharge claims generally. See Arciuolo v. Tomtec,
Inc., 2018 WL 915048, at *5 (Conn. Super. Ct. Jan. 19, 2018); Chance v. Leno’s
Lawn Serv., LLC, 2009 WL 3740645, at *2 (Conn. Super. Ct. Oct. 16, 2009)
(“[u]nder Connecticut law, the three-year statute of limitations [in] § 52-577 applies
to a common-law cause of action in tort for wrongful discharge”).
Notes
Constructive discharge requires “[w]orking conditions . . . so difficult or
unpleasant that a reasonable person in the employee’s shoes would have

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felt compelled to resign.” Karagozian, 186 Conn. App. at 867. Though an

employer’s subjective intent to force an employee to resign is relevant, it is
not an element of the cause of action. Karagozian, 2020 WL 1889057, at *6-7.
Unlike wrongful discharge, an employer may be held liable without violating
the public policy. See WRONGFUL DISCHARGE, infra.

1C-6 CONSTRUCTIVE EVICTION

A cause of action for constructive eviction requires proof of the following
elements:
1) An act or omission by a landlord rendered a rented premises
untenantable; and
2) the tenant vacated the premises after giving the landlord
reasonable time to correct the problem.
Heritage Square, LLC v. Eoanou, 61 Conn. App. 329, 332 (2001); Welsch v.
Groat, 95 Conn. App. 658, 662 (2006).
Statute of Limitations
The statute of limitations for a constructive eviction is three years from the
date of the act complained of. Conn. Gen. Stat. § 52-577.
Notes
Whether a constructive eviction has occurred is a question of fact on which
an appellate court shows the customary deference to the factfinder. See
Fernwood Realty, LLC v. AeroCision, LLC, 166 Conn. App. 345, 382-84
(2016) (rejecting defendant’s claim for plenary review). Myriad circumstances
can give rise to an action for constructive eviction. See, e.g., Conference
Center, Ltd. v. TRC, 189 Conn. 212, 220-21 (1983) (tenant compelled to yield
premises to third party with title paramount to that of landlord). However,
there must be a landlord-tenant relationship. See Mendez v. JP Morgan
Chase Bank, N.A., 2015 WL 897253, at *4 (Conn. Super. Ct. Feb. 10, 2015)
(striking constructive eviction claim by property owner against mortgagee).
The relevant considerations are “the situation of the parties to the lease,
the character of the premises, the use to which the tenant intends to put
them, and the nature and extent by which the tenant’s use of the premises is
interfered with by the injury claimed.” Welsch v. Groat, 95 Conn. App. 658,
662 (2006). The common and necessary factor is that the “problem or
interference is so severe as to render the premises unusable as a result.”
Ginsberg v. Lathrop, 2007 WL 613656, at *1 (Conn. Super. Ct. Feb. 8, 2007). A
recurring lacuna in proof of constructive eviction is the failure of the plaintiff
to have vacated the premises, or to have given the landlord reasonable time
to correct the problem prior to vacating. See, e.g., Lamar Central Outdoor,

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LLC v. Joyce, 2009 WL 2603121 (Conn. Super. Ct. July 30, 2009) (commercial
lessee failed to establish constructive eviction, in spite of numerous
environmental problems with building, due to failure to allege vacation of
premises or reasonable time to correct problems). However, a landlord’s
actual notice of a problem that renders the premises unusable suffices even
if the tenant’s lease requires written notice. See 31 Tobey Rd., Ltd. v. Wright,
2016 WL 5798712, at *4-5 (Conn. Super. Ct. Aug. 16, 2016) (refusing to “exalt
form over substance” because tenant repeatedly complained to landlord
about leaky roof). Even though whether a premises is untenantable is a
question of fact; see Welsch, 95 Conn. App. at 662, several Superior Court
judges have stricken constructive eviction claims because the plaintiffs did
not clearly and expressly allege that element. See, e.g., Haven Skate Park,
LLC v. G.J. Zurolo Real Estate, LLC, 2013 WL 6989496, at *3 (Conn. Super.
Ct. Dec. 18, 2013) (failure to allege that tenant vacated premises due to
problem).
In Commerce Park Assocs., LLC v. Robbins, 193 Conn. App. 697 (2019), cert.
denied, 334 Conn. 912 (2020), the Appellate Court followed the “instructive
and persuasive” rule for damages in Restatement (Second) of Property § 10.2
(in the absence of a governing provision in the lease):
“Damages may include one or more of the following items as may be
appropriate so long as no double recovery is involved:
(1) if the tenant is entitled to terminate the lease and does so, the fair
market value of the lease on the date he terminates the lease;
(2) the loss sustained by the tenant due to reasonable expenditures
made by the tenant before the landlord’s default which the
landlord at the time the lease was made could reasonably have
foreseen would be made by the tenant;
(3) if the tenant is entitled to terminate the lease and does so,
reasonable relocation costs;
(4) if the lease is not terminated, reasonable additional costs of
substituted premises incurred by the tenant as a result of the
landlord’s default while the default continues;
(5) if the use of the leased property contemplated by the parties is for
business purposes, loss of anticipated business profits proven to a
reasonable degree of certainty, which resulted from the landlord’s
default, and which the landlord at the time the lease was made
could reasonably have foreseen would be caused by the default;
(6) if the tenant eliminates the default, the reasonable costs incurred
by the tenant in eliminating the default; and

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(7) interest on the amount recovered at the legal rate for the period
appropriate under the circumstances.”
Id. at 737-38.

1C-7 CONSTRUCTIVE FRAUD

The breach of a confidential or special relationship forms the basis of an
action for constructive fraud. To prove constructive fraud, a plaintiff must
establish:
1) The existence of a confidential or special relationship; and
2) the breach of that relationship.
Once a confidential or special relationship is found to exist, the burden shifts
to the defendant fiduciary to prove fair dealing by clear and convincing
evidence.
Mitchell v. Mitchell, 31 Conn. App. 331, 334-35 (1993).
Statute of Limitations
See FRAUD.
Notes
Constructive fraud and breach of fiduciary duty are different names for the
same thing. See Iacurci v. Sax, 313 Conn. 786 (2014); St. Bernard School of
Montville, Inc. v. Bank of Am., 312 Conn. 811 (2014). The confidential or
special relationship required for a claim of constructive fraud generally is
a fiduciary one. See, e.g., Iacurci v. Sax, 139 Conn. App. 386, 400-02 (2012),
aff ’d, 313 Conn. 786 (2014); Golek v. St. Mary’s Hosp., Inc., 133 Conn.
App. 182, 197 (2012). However, it does not have to be. See Mitchell, 31 Conn.
App. at 333-34 (special relationship between family members). Thus, while
“equity has carefully refrained from defining a fiduciary relationship in
precise detail and in such a manner as to exclude new situations[,]” Falls
Church Grp., Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 109
(2007) (citations omitted), the crucial question is whether “relationship is
characterized by a unique degree of trust and confidence between the parties,
one of whom has superior knowledge, skill or expertise and is under a duty to
represent the interests of the other.” Id. at 108; see BREACH OF FIDUCIARY
DUTY, supra.

1C-8 CONSTRUCTIVE TRUST

In order for a constructive trust to be imposed, the plaintiff must establish
that the defendant:
1) Obtained or holds the legal right to property;

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 1C-9Conversion

2) which he ought not, in equity and good conscience, hold;

3) which he obtained through actual or constructive fraud,
duress, abuse of confidence, or another form of unconscionable
conduct; and
4) that he has an equitable duty to convey the property to another
because he would be unjustly enriched if he were permitted to
retain it.
Stornawaye Props., Inc. v. O’Brien, 94 Conn. App. 170, 175-76 (2006);
Mitchell v. Redvers, 130 Conn. App. 100, 112-13 (2011).
Statute of Limitations
A constructive trust is an equitable remedy. Consequently, there is no statute
of limitations, but laches might act as a time bar in certain circumstances.
Notes
“A constructive trust is the formula through which the conscience of equity
finds expression. When property has been acquired in such circumstances
that the holder of the legal title may not in good conscience retain the
beneficial interest, equity converts him into a trustee.” Town of New
Hartford v. Conn. Res. Recovery Auth., 291 Conn. 433, 466 (2009). The
central issue in a constructive trust claim “is, in essence, whether a party has
committed actual or constructive fraud or whether he or she has been unjustly
enriched.” Trevorrow v. Maruccio, 125 Conn. App. 141, 147 (2010) (emphasis
in original). A constructive trust “arises by operation of law at the time of
a conveyance when the purchase money for property is paid by one party
and the legal title is taken in the name of another . . . . The presumption of
the existence of such a trust, however, is one of the facts rather than law and
may be rebutted by proof of contrary intent.” Friedman v. Gomez, 172 Conn.
App. 254, 264 (2017). Nonetheless, specificity is crucial: A plaintiff “who
cannot identify [the] property in the hands of the defendant, is not entitled to
the remedy of constructive trust.” Wall Sys., Inc. v. Pompa, 324 Conn. 718,
742 (2017). Though a constructive trust is a remedy, the common practice
appears to be to plead it as a separate count, or even as an independent cause
of action. See Macomber v. Travelers Prop. & Cas. Corp., 261 Conn. 620, 623
n.3 (2002) (separate count in plaintiff’s complaint); Scalise v. E. Greyrock,
LLC, 148 Conn. App. 176, 179, n.1, cert. denied, 311 Conn. 946 (2014).

1C-9 CONVERSION
To establish a cause of action for conversion, a plaintiff must demonstrate
that:
1) The defendant, without authorization;

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2) assumed and exercised ownership over property belonging to

another;
3) to the exclusion of the owner’s rights.
News America Marketing In-Store, Inc. v. Marquis, 86 Conn. App. 527 (2004),
aff ’d, 276 Conn. 310 (2005).
Statute of Limitations
Three years from the date of the act complained of. Conn. Gen. Stat. § 52-577.
Notes
Conversion requires “a legal right or possessory interest in the property at
issue[,]” Stamatopoulos v. ECS N. Am., LLC, 172 Conn. App. 92, 96 (2017),
and falls into two “general classes . . . (1) that in which possession of the
allegedly converted goods is wrongful from the onset; and (2) that in which
the conversion arises subsequent to an initial rightful possession.” Luciani v.
Stop & Shop Cos., Inc., 15 Conn. App. 407, 410, cert. denied, 209 Conn. 809
(1988). “The essence of the wrong is that the property rights of the plaintiff
have been dealt with in a manner adverse to him, inconsistent with his right
of dominion and to his harm.” Label Sys. Corp. v. Aghamohammadi,
270 Conn. 291, 329 (2004). Civil theft and conversion are identical, with two
exceptions: The former requires proof of intent, while the latter requires
proof that the owner of the property suffered harm from the defendant’s
conduct. See Deming v. Nationwide Mut. Ins. Co., 279 Conn. 745, 771 (2006).
While “an essential element of conversion is proof of an immediate right to
possession at the time of conversion”; Gager v. Sanger, 95 Conn. App. 632,
642, cert. denied, 280 Conn. 905 (2006); “[c]onversion may arise subsequent to
an initial rightful possession.” Howard v. MacDonald, 270 Conn. 111, 129 n.8
(2004). This may be due to wrongful detention, wrongful use, or continued
exercise of unauthorized dominion. See Luciani, 15 Conn. App. at 410. This
concept represents the flip side of the principle of “equitable conversion,”
whereby the purchaser of land under an executory contract is regarded as the
owner, subject to the seller’s lien for the unpaid purchase price. Micek-Holt v.
Papageorge, 180 Conn. App. 540, 552 (2018) (citing Southport Congregational
Church-United Church of Christ v. Hadley, 320 Conn. 103, 111 (2016)).
However, “[t]he mere right to payment cannot be the basis for a cause of
action alleging conversion . . . [nor can] a mere breach of contract[.]” Alpha
Beta Capital Partners, L.P. v. Pursuit Inv. Mgmt., LLC, 193 Conn. App. 381,
419-20 (2019), cert. denied, 334 Conn. 911 (2020). Conversion requires the
alleged converter to have “breach[ed] . . . a duty distinct from, or independent
of, the breach of contract.” Id. at 420.

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 1D-1 Declaratory Judgment

1D-1 
DECLARATORY JUDGMENT
A plaintiff may maintain a declaratory judgment action if all of the following
conditions are met:
1) The party seeking the declaratory judgment has an interest, legal
or equitable, by reason of danger of loss or of uncertainty as to
the party’s rights or other jural relations;
2) there is an actual bona fide and substantial question or issue in a
dispute or substantial uncertainty of legal relations that requires
settlement between the parties; and
3) in the event that there is another form of proceeding that can
provide the party seeking the declaratory judgment immediate
redress, the court is of the opinion that such a party should be
allowed to proceed with the claim for the declaratory judgment
despite the existence of such an alternate procedure.
Conn. Practice Book § 17-55.
Statute of Limitations
A declaratory judgment action must be based on a cause of action that would be
cognizable outside of the declaratory context. Wilson v. Kelley, 224 Conn. 110,
116 (1992). The statute of limitations for the underlying cause of action on which
the claim for a declaratory judgment is based controls the limitations period. Id.
Notes
Connecticut has an “unusually liberal” declaratory judgment statute,
Conn. Gen. Stat. § 52-29, which is broader in scope than the statutes in
“most, if not all, other jurisdictions.” Travelers Cas. & Sur. Co. of Am. v.
The Netherlands Ins. Co., 312 Conn. 714, 727 (2014). Section 52-29 authorizes
“[t]he Superior Court in any action or proceeding [to] declare rights and
other legal relations on request for such a declaration, whether or not further
relief is or could be claimed. The declaration shall have the force of a final
judgment.” The procedural rules for declaratory judgment actions—which
are quite complex—are set forth in Practice Book §§ 17-54, et seq. However,
a party must exhaust any available administrative remedies before it brings
a declaratory judgment action. See Metropolitan Dist. v. Comm’n on Human
Rights & Opportunities, 180 Conn. App. 478, 496-97, cert. denied, 328
Conn. 937 (2018) (plaintiff’s failure to file petition for declaratory ruling by
defendant barred court action for declaratory judgment).
A court is “not limited by the issues joined or by the claims of counsel” in a
declaratory judgment action, Stueck v. The G.C. Murphy Co., 107 Conn. 656,
661 (1928), but the pleadings still constrain its authority. See Prime Locations
of CT, LLC v. Rocky Hill Dev., LLC, 167 Conn. App. 786, cert. denied, 323

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Conn. 935 (2016). A court may outpace the parties’ claims only if there is a
jurisdictional issue, or a question about a necessary predicate to the parties’
actual claims. Id. at 805-07. Otherwise, “despite the broad and remedial
nature of a declaratory judgment action,” id. at 808, a party cannot prevail
on a ground that it has not pleaded, briefed or argued. Id. However, a “court
may, in determining the rights of the parties, properly consider equitable
principles in rendering its judgment.” 21st Century N. Am. Ins. Co. v. Perez,
177 Conn. App. 802, 814 n.8 (2017), cert. denied, 327 Conn. 995 (2018).
Though declaratory judgment actions are relatively broad in scope, the
underlying claim must still be justiciable. Mendillo v. Tinley, Renehan &
Dost, LLP, 329 Conn. 515, 524 (2018) (“The declaratory judgment
procedure . . . does not relieve the plaintiff from justiciability requirements.”).
In Mendillo, an attorney’s declaratory judgment action, seeking a judgment
declaring that the Appellate Court’s decision finding that the attorney had
violated the Rules of Professional Conduct unconstitutional, was dismissed
because he did not have a justiciable claim.
A claim for declaratory relief can be made against the state or state officers
acting in their official capacities, in spite of the state’s sovereign immunity, but
only where the claim is based on “a substantial claim that the state or one of its
officers has violated the plaintiff’s constitutional rights.” In order to plead such
a claim, the allegations of the declaratory judgment complaint “must clearly
demonstrate an incursion upon constitutionally protected interests.” (Emphasis
in original.) Braham v. Newbould, 160 Conn. App. 294, 311-12 (2015) (citing
Columbia Air Services, Inc. v. Dep’t of Transp., 293 Conn. 342, 350 (2009)).
The superior court lacks jurisdiction over a declaratory judgment claim made
in a probate appeal because, in that procedural context, the superior court
sits as a court of probate. See Southport Congregational Church—United
Church of Christ v. Hadley, 152 Conn. App. 282, 293 & n.8 (2014), rev’d on
other grounds, 323 Conn. 103 (2016).

1D-2 DECLARATORY JUDGMENT ACTION—INSURANCE

The elements for a declaratory judgment action based on a policy of
insurance are:
1) The existence of an insurance policy; and
2) a dispute concerning the meaning of that policy.
See Colony Ins. Co. v. Oracle Lounge, Inc., 2008 WL 2068270, at *2 (Conn.
Super. Ct. May 1, 2008), and cases cited therein; see generally Conn. Gen.
Stat. § 52-29.

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Statute of Limitations
“[I]n analyzing whether a declaratory judgment action is barred by a
particular statutory period of limitations, a court must examine the
underlying claim or right on which the declaratory action is based.” Wilson v.
Kelley, 224 Conn. 110, 116 (1992). Consequently, the appropriate limitations
period for a declaratory judgment action concerning the interpretation of an
insurance policy is the six-year statute for written contracts. See Conn. Gen.
Stat. § 52-576(a).
Notes
Declaratory judgment actions are a common staple of insurance coverage
practice. Insurers and insureds routinely file such actions to obtain a judicial
determination of the existence and scope of coverage under an insurance
policy, whether an insurer has a duty to defend or indemnify its insured, and
to resolve myriad other issues. See Colony, 2008 WL 2068270; New London
County Mut. Ins. Co. v. Nantes, 303 Conn. 737, 748 (2012), and cases cited
therein. While it is more common for the action to be between the insurer and
its insured, there is no bar to one insurer bringing a declaratory judgment
action against another insurer in order to have the court determine the scope
of that insurer’s contractual obligations to its insured. See Travelers Cas. &
Sur. Co. of Am. v. The Netherlands Ins. Co., 312 Conn. 714, 730 (2014) (prior
insurer had standing to bring declaratory judgment action against current
insurer, even though underlying claim was one for breach of contract and
prior insurer was not a party to current insurer’s contract with insured).
Collateral estoppel does not bar an insurer from “litigat[ing] coverage issues
previously litigated [in the underlying action] on which it had a conflict of
interest with its insured or coverage issues on which material facts were not
litigated and necessary to the underlying judgment.” Nationwide Mut. Ins.
Co. v. Pasiak, 327 Conn. 225, 267-68 (2017) (insurer entitled to trial de novo
on business pursuits exclusion because parties in underlying action had no
incentive to litigate scope of exclusion). Moreover, an insurer may introduce
evidence that was not a part of the underlying trial as long as coverage
“was not litigated or insufficient factual findings were made to make a
determination on the coverage issue.” Id. at 268.

1D-3 DEFAMATION
To establish a claim of defamation, a plaintiff must prove:
1) The defendant published a defamatory statement;
2) the defamatory statement identified the plaintiff to a third
person;

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3) the defamatory statement was published to a third person; and

4) the plaintiff’s reputation suffered injury as a result of the
statement.
Hopkins v. O’Connor, 282 Conn. 821, 838 (2007).
Statute of Limitations
Two years from the date of the act complained of. See Conn. Gen. Stat
§ 52-597.
Notes
“A defamatory statement is defined as a communication that tends to
harm the reputation of another as to lower him in the estimation of the
community or to deter third persons from associating or dealing with
him. To be actionable, the statement in question must convey an objective
fact, as generally, a defendant cannot be held liable for expressing a mere
opinion.” Rafalko v. Univ. of New Haven, 129 Conn. App. 44, 54 (2011). In
addition, “the statement must be false and truth is an affirmative defense.”
Nodoushani v. S. Conn. State Univ., 152 Conn. App. 84, 96 (2014). Id. Written
defamation is libel; oral defamation is slander. Gambardella v. Apple Health
Care, Inc., 86 Conn. App. 842, 850 (2005). An appellate court reviews any
“underlying findings of historical fact for clear error, but also . . . engage[s] in
an independent review of those determinations by the trial court that carry
constitutional significance, such as whether those facts constituted clear
and convincing evidence of actual malice justifying an award of punitive
damages.” Gleason v. Smolinski, 319 Conn. 394, 436 (2015). This fact-specific
fence-straddling has many permutations. See id. at 437-38 (independent
review of actual malice, but not “for example, the falsity of the factual
statement that constitutes the alleged defamation”).
“A claim of defamation must be pleaded with specificity, as the precise
meaning and choice of words employed is a crucial factor in any evaluation
of falsity . . . . [It] must, on its face, specifically identify what allegedly
defamatory statements were made, by whom, and to whom.” Stevens v.
Helming, 163 Conn. App. 241, 247 n.3 (2016). Thus, a plaintiff may not
recover for a defendant’s “[o]ther actionable words not pleaded, although
published at the same time . . . .” Id. at 247 n.4. Certain statements require
no proof beyond their occurrence; they are slander per se and entitle the
plaintiff to damages. See Guerrera v. Cunningham, 2015 WL 1727584, at *2
(Conn. Super. Ct. Mar. 17, 2015) (slander per se includes false statements of
“(a) incompetence or dishonesty in the workplace; (b) general incompetence
in a trade, business or profession; or (c) theft or a crime punishable with
imprisonment”). On the other hand, proof of actual malice—i.e., “that
a statement was made with knowledge that it was false or with reckless

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disregard for its truth[,]” Gleason, 319 Conn. at 447—entitles a plaintiff

to punitive damages. Id. at 432. Gleason leaves for another day whether a
plaintiff must prove actual malice by clear and convincing evidence because
“neither the trial court nor the Appellate Court ever expressly considered
whether the plaintiff proved the falsity of the defamatory statements under
any standard of proof.” Id. at 446 & n.44.
Statements published in the course of judicial proceedings are subject to an
absolute privilege, and thus may not form the basis of a claim for damages for
libel or slander. Simms v. Seaman, 308 Conn. 523, 548 (2013) (citing Gallo v.
Barile, 284 Conn. 459, 465-66 (2007), and Hopkins v. O’Connor, 282 Conn.
821, 830-31 (2007)). This absolute privilege extends to statements made during
administrative proceedings that “are quasi-judicial in nature.” Villages, LLC v.
Longhi, 166 Conn. App. 685, 700 (2016), cert. denied, 323 Conn. 915 (2016).
Absolute privilege also extends to statements made by non-parties, such as
an expert. Ravalese v. Lertora, 186 Conn. App. 722 (2018) (holding plaintiff’s
defamation claim against psychologist, who submitted a report in a prior child
custody case, was barred by absolute immunity). However, the “strong medicine”
of absolute privilege does not apply to members of local zoning boards; id.; who
enjoy only qualified immunity under Conn. Gen. Stat. § 52-557n(c). Id. at 703.
In other circumstances, a qualified privilege may protect the speaker, i.e.,
protection from liability, but not from being sued. See Gambardella v.
Apple Health Care, Inc., 291 Conn. 620, 628-29 (2009). For example, there
is “a qualified privilege for the employment references of current or former
employers that were solicited with the employee’s consent.” Nelson v.
Tradewind Aviation, LLC, 155 Conn. App. 519, 537, cert. denied, 316 Conn.
918 (2015) (emphasis in original); see Kruger v. Grauer, 173 Conn. App. 539,
541, cert. denied, 327 Conn. 901 (2017) (individuals “who report abuse or
neglect pursuant to General Statutes § 17a-101e(b)”); Gallo, 284 Conn. at 463
(“statements that a complaining witness makes to the police”); Hopkins,
282 Conn. at 846 (statements made by persons acting under psychiatric
commitment statute); Chadha v. Charlotte Hungerford Hosp., 272 Conn. 776,
789 (2005) (statements made to professional licensing board or peer review
panel). However, a communication sheds its qualifiedly privileged skin if
made with actual malice, or “malice in fact” (bad faith or improper motive).
Nelson, 155 Conn. App. at 538.
The amount of proof necessary to satisfy the injury element of defamation
depends on whether the defamatory words are actionable per se or actionable
per quod. Urban v. Hartford Gas Co., 139 Conn. 301 (1952). Defamatory
statements that are actionable per se do not require a showing of special
damages because the law presumes general damages. “Our state has generally
recognized two classes of defamation per se: (1) statements that accuse a party of

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 Dog-Bite Action (Common Law)1D-4

a crime involving moral turpitude or to which an infamous penalty is attached,

and (2) statements that accuse a party of improper conduct or lack of skill or
integrity in his or her profession or business and the statement is calculated to
cause injury to that party in such profession or business.” Silano v. Cooney, 189
Conn. App. 235, 242 (2019) (holding that trial court erred by requiring plaintiff
to prove that the crime the defendant alleged was both a crime involving moral
turpitude and one imposing an infamous penalty, because the law only requires
either). Defamatory statements that are actionable per quod do require a
showing of special damages. Urban, 139 Conn. at 308.

1D-4 DOG-BITE ACTION (COMMON LAW)

To prevail in a common-law dog bite action, a plaintiff must prove that:
1) The defendant was the owner or keeper of a dog;
2) the defendant had knowledge of the dog’s ferocity or mischievous
propensity;
3) the plaintiff was bitten by that dog; and
4) damages resulted from the bite.
Griffin v. Flegert, 2007 WL 2593793, at * 3 (Conn. Super. Ct. Aug. 28, 2007) [1, 2];
see Verrilli v. Damilowski, 140 Conn. 358, 360-62 (1953) [3, 4].
Statute of Limitations
The statute of limitations for a common-law dog bite action is two years.
Conn. Gen. Stat. § 52-584; see Gretkowski v. Coppola, 26 Conn. Supp. 294, 296
(1966).
Notes
“A person injured by a dog has for election one of two causes of action to
pursue. One such action is in negligence at common law, and the other is
under the statute which is presently [Conn. Gen. Stat. § 22-357].” Id. The
principal distinction between the two is the common-law scienter requirement
for the owner—i.e., knowledge of the dog’s vicious nature. Verrilli v.
Damilowski, 140 Conn. 358, 360-62 (1953). A landlord that knows of the
dangerous propensities of a dog owned by one of its tenants and kept on
common premises owned by the landlord may be held liable for injuries to
another of its tenants who was bitten by the dog, even though the landlord did
not have direct care of, or control over, the dog. Giacalone v. Hous. Auth. of
the Town of Wallingford, 306 Conn. 399, 401 (2012).
Where city official’s acts or omissions were discretionary in nature, city
official and the city are immune from liability for common-law dog bite claim.
Thivierge v. Witham, 150 Conn. App. 769, 778 (2014).

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 1E-1 Easement by Implication

1E-1 EASEMENT BY IMPLICATION

The elements for an easement by implication are:
1) The imposition of an apparently permanent and obvious
servitude on one part of an estate in favor of another part of that
estate;
2) which, when the estate is severed, is in use and is reasonably
necessary for the use and normal enjoyment of the dominant
estate.
Deane v. Kahn, 179 Conn. App. 58, 71 (2018) (quoting Rischall v. Bauchmann,
132 Conn. 637, 642-43 (1946)).
Statute of Limitations
There is, strictly speaking, no statute of limitations period for an easement
by implication, which arises by operation of law if the above elements are
satisfied. However, if the owner of the dominant estate wishes to confirm the
legal existence of his easement, he must give notice of entry within 15 years
and must bring an action to quiet his title thereto within one year of that
notice. See Conn. Gen. Stat. § 52-575(a).
Notes
An easement by implication entitles the dominant estate to continue its use
of an easement following a split in ownership with the servient estate. See
Deane, 179 Conn. App. at 70-71. Further, “in so far as necessity is significant
it is sufficient if the easement is highly convenient and beneficial for the
enjoyment of the portion granted . . . . The reason that absolute necessity is
not essential is because fundamentally such a grant by implication depends
on the intention of the parties as shown by the instrument and the situation
with reference to the instrument, and it is not strictly the necessity for a right
of way that creates it.” (Citation omitted; internal quotation marks omitted.)
D’Amato v. Weiss, 141 Conn. 713, 717 (1954); see Utay v. G.C.S. Realty, LLC,
72 Conn. App. 630, 636-37 (2002).
“The extent of an easement created by implication generally is determined
by the circumstances which existed at the time of conveyance and gave rise
to the implication. Among these circumstances is the use being made of the
dominant tenement at that time.” McBurney v. Paquin, 302 Conn. 359, 380
(2011) (quoting Bovi v. Murray, 601 A.2d 960, 962 (R.I. 1992)). Where the
easement was created long ago, “[e]vidence of present, or relatively recent,
actual use of the easement bears little relation to what was considered
reasonably necessary for its use and normal enjoyment more than one
hundred years ago.” McBurney, 302 Conn. at 380 (citing 25 Am. Jur. 2d,
Easements & Licenses § 79, pp. 577-78 (2004)).

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 Easement by Necessity1E-2

The parcels in question no longer have to share a unity of interest to find

an easement by implication. See Bolan v. Avalon Farms Prop. Owners
Ass’n, Inc., 250 Conn. 135 (1999). A map may create an implied easement
to the extent that it establishes the intent of the grantor to convey one. See
Murphy v. EAPWJP, LLC, 123 Conn. App. 316, 334 (2010), appeal dismissed,
306 Conn. 391 (2012). Moreover, “[a] description of the land conveyed that
refers to a plat or map showing streets, ways, parks, open space, beaches,
or other areas for common use or benefit, implies creation of a servitude
restricting the use of the land shown on the map to the indicated uses.”
McBurney v. Cirillo, 276 Conn. 782, 802-03 (2006).

1E-2 EASEMENT BY NECESSITY

An action to impose an easement by necessity arises in two distinct, but
interrelated circumstances. Either:
1) Property is conveyed to the plaintiff;
2) that is inaccessible except over the property retained by the
defendant grantor.
Or:
1) The plaintiff conveys property to the defendant;
2) but retains an adjoining parcel that is inaccessible except over the
property so conveyed.
First Union Nat’l Bank v. Eppoliti Realty Co., Inc., 99 Conn. App. 603, 608
(2007); see Deane v. Kahn, 317 Conn. 157, 178 (2015) (claim of easement by
necessity may be based on either limited access to portion of plaintiff’s
property (if remainder of property has access), or limited waterfront access
(if an integral part of property’s value), but neither claim established).
Statute of Limitations
See EASEMENT BY IMPLICATION, supra.
Notes
An easement by necessity flows from the “public policy that no land should be
left inaccessible or incapable of being put to profitable use.” Hollywyle Ass’n,
Inc. v. Hollister, 164 Conn. 389, 400 (1973). In either of the two above scenarios,
the need for access “need only be a reasonable one.” First Union Nat’l Bank v.
Eppoliti Realty Co., Inc., 99 Conn. App. 603, 608 (2007). Unity of ownership
is no longer a requirement for the imposition of an easement by necessity.
See Bolan v. Avalon Farms Prop. Owners Ass’n, Inc., 250 Conn. 135, 144
(1999). An easement by necessity is distinct from an easement by
implication by virtue of the fact that the former “requires the party’s parcel

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 1E-3 Easement Use Damaging Servient Estate

to be landlocked[,]” Sanders v. Dias, 108 Conn. App. 283, 289 (2008), but
does not require proof that the parties intended to create an easement. See
Thomas v. Primus, 148 Conn. App. 28, 36 (2014) (court need not consider intent
in establishing an easement by necessity). Note, however, that “a common-
law right-of-way based on necessity expires when the owner of a dominant
estate acquires access to a public or private road through another means.”
Montanaro v. Aspetuck Land Trust, Inc., 137 Conn. App. 1, 28, cert. denied, 307
Conn. 932 (2012); Thurlow v. Hulten, 173 Conn. App. 694, 718 (2017).
A plaintiff whose property is cut off from access to commercial utilities
may claim an easement by necessity to access utility services, even if there
is physical access to the property. Francini v. Goodspeed Airport, LLC, 164
Conn. App. 279, 287 (2016), aff ’d, 327 Conn. 431 (2018).

1E-3 EASEMENT USE DAMAGING SERVIENT ESTATE

The owner of an easement may be held liable for damages caused by his
negligent use of the easement, and this liability extends to damages to the
servient estate. Center Drive-In Theatre, Inc. v. City of Derby, 166 Conn.
460, 464 (1974) (citing Gager v. Carlson, 146 Conn. 288, 293 (1959)); Schwab v.
Charles Parker Co., 55 Conn. 370, 372 (1887). See generally NEGLIGENCE.
Statute of Limitations
Consult applicable limitation for underlying action upon which damage claim
is based (negligence, intentional tort, etc.)
Notes
While the cases discuss the possibility of negligent use of an easement causing
damage to the servient estate, intentional damage also would be actionable.
Note also that damage to the servient estate could constitute an unreasonable
use, and thus a violation of the easement. See, e.g., Zhang v. Omnipotent
Enters., Inc., 272 Conn. 627, 636-37 (2005).

1E-4 EJECTMENT
The elements of a cause of action for ejectment are:
1) A defendant has wrongfully entered onto land owned by the
plaintiff;
2) dispossessed the plaintiff of that land;
3) deprived the plaintiff of the use of that land and rents or profits
therefrom;
4) the defendant remained in possession of the land; and
5) the plaintiff suffered damages as a result.

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 Ejectment1E-4

Mitchell Trust, LLC v. Birmingham, 2004 WL 1326078, at *2 (Conn. Super. Ct.

May 25, 2004).
Statute of Limitations
The statute of limitations for an ejectment action is 15 years from the
date when the plaintiff “was ousted from possession.” Conn. Gen. Stat.
§ 52-575.
Notes
An ejectment action seeks to oust an unlawful possessor from land owned by
another. Proof of legal title by the plaintiff is a requirement of an ejectment
action. Waterbury Trust Co. v. G.L.D. Realty Co., 121 Conn. 50, 51 (1936).
A defendant in an ejectment action “who has, in good faith, believing
his title to the land in question absolute, made improvements on the land
before the commencement of the action, or whose grantors or ancestors
have made the improvements” may be entitled to the excess value of those
improvements over the amount due to the plaintiff for the defendant’s use and
occupation of the land. Conn. Gen. Stat. § 47-30. Under § 47-30, a court may
not enter final judgment until it has ascertained the present value of those
improvements in order to determine if that value exceeds the value of the
defendant’s use and occupancy.
Note also that “the title to property and possession of that property
are separate questions and that title to property may be obtained via a
foreclosure action without acquiring the right to possession. A foreclosing
mortgagee has two options to obtain possession of the property from a
tenant: the mortgagee may name the tenant as a party in the foreclosure
action and obtain a judgment of ejectment; or, the mortgagee separately may
pursue a summary process action after obtaining title.” (Citation omitted.)
Housing Dev. Fund, Inc. v. Burke Real Estate Mgmt., LLC, 155 Conn.
App. 451, 461-62 (2015). In other words, while proof of title is a prerequisite
to a successful ejectment action, ejectment is not a necessary result of a quiet
title action. At least one Superior Court judge has held that mortgagees
are required under the Protecting Tenants at Foreclosure Act of 2009 and
Conn. Gen. Stat. § 49-31p, to provide 90-day notice prior to the ejectment of
bona fide tenants, regardless of whether the tenants were made parties in the
foreclosure action. Nutmeg Fin. Holdings, LLC v. 249 River St., LLC, 2018
WL 4656028, at *3 (Conn. Super. Ct. Sept. 11, 2018). A bona fide tenant is one
who makes periodic monetary payments or periodic payments of something
of value to the landlord in satisfaction of the tenant’s obligation. Id. at *4
(citing Customers Bank v. Boxer, 148 Conn. App. 479, 486 (2014)).
A writ of error is the proper mechanism for a tenant to challenge an ejectment
if the tenant was not made a party to the underlying foreclosure action.

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 1E-5 Equitable Subrogation

See Tappin v. Homecomings Fin. Network, Inc., 265 Conn. 741, 745-46 (2003).
However, a writ of error is not available if the tenant was a party to the
underlying action. See Micek-Holt v. Papageorge, 326 Conn. 915, 919 (2017).

1E-5 EQUITABLE SUBROGATION

A plaintiff may recover under a theory of equitable subrogation if the
plaintiff:
1) Not acting as a mere volunteer or intruder;
2) pays a debt for which another is primarily liable;
3) which in equity and good conscience should have been
discharged by the latter.
Warning Lights & Scaffold Service, Inc. v. O&G Indus., Inc., 102 Conn.
App. 267, 272 (2007).
Statute of Limitations
“Statute of limitations do not apply in a strict fashion to causes of action
arising in equity.” Government Emps. Ins. Co. v. Barros, 184 Conn. App. 395,
399 (2018) (holding that equitable subrogation claim was not barred by
statues of limitations applicable to underlying tort claims). There is thus no
clearly controlling statute of limitations for equitable subrogation. See Great
Am. Ins. Cos. v. Hartford Acc. & Indem. Co., 1999 WL 195950, at *2 (Conn.
Super. Ct. Mar. 12, 1999) (“the doctrine of equitable subrogation is not subject
to a statute of limitations”); see also Dunham v. Dunham, 204 Conn. 303,
326-27 (1987), overruled in part on other grounds, Santopietro v. New Haven,
239 Conn. 207 (1996) (“in an equitable proceeding, a court may provide
a remedy even though the governing statute of limitations has expired”).
However, courts sometimes impose the statute of limitations applicable to the
equivalent legal cause of action in an equitable case if the plaintiff also could
have requested legal relief. See Certain Underwriters at Lloyd’s, London v.
Cooperman, 289 Conn. 383, 407 (2008) (constructive trust). Under that theory,
it is not clear whether the six-year limitations period for contract actions,
see Conn. Gen. Stat. § 52-576(a), or the three-year period for indemnification
actions, see Conn. Gen. Stat. § 52-598a, would apply to equitable subrogation.
See Alfred Chiulli & Sons, Inc. v. Hanover Ins. Co., 2007 WL 4239788 (Conn.
Super. Ct. Nov. 14, 2007) (discussing three-year limitations period for other
claims in which plaintiff also pled equitable subrogation); Great Am.,
1999 WL 195950, at *3 (assuming arguendo that six-year limitations period
would apply). In a similar vein, if the underlying theory of liability is
negligence—e.g., in an uninsured motorist case—several courts have applied
the two-year limitations period for negligence actions. See GEICO v. Planz,

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 Equitable Subrogation1E-5

2017 WL 4508753, at *5 (Conn. Super. Ct. Aug. 28, 2017) (citing cases); see also
Conn. Gen. Stat. § 52-584.
Notes
The right of equitable subrogation is not a matter of contract and does not
arise from any contractual relationship between the parties. It is a matter
of equity, designed to prevent injustice. Westchester Fire Ins. Co. v. Allstate
Ins. Co., 236 Conn. 362, 371 (1996). While a claim for equitable subrogation
traditionally had to be brought in the name of the injured party (sometimes
referred to as the subrogor, or nominal party in interest), Connecticut has
moved away from overly strict pleading requirements in equitable subrogation
cases. In ruling that the claim may be made in the name of the real party in
interest (the subrogee), the Supreme Court referenced an ancient case that
applied the old rule and stated that “[w]hat might have been procedurally true
in 1856 is not necessarily true today.” Pacific Ins. Co., Ltd. v. Champion Steel,
LLC, 323 Conn. 254, 263 n.4 (2016).
Practice Book § 10-27 requires that a party seeking equitable relief
specifically demand it as such, unless the nature of the demand itself
indicates that the relief sought is equitable. “[S]ubrogation is a highly
favored doctrine . . . which courts should be inclined to extend rather than
restrict.” Allstate Ins. Co. v. Palumbo, 296 Conn. 253, 260 (2010) (ellipses in
original). However, there is no bright-line rule to determine whether a right of
subrogation exists; it depends on the balance of equities under the facts and
circumstances of each case. See id. The Allstate case illustrates the delicate
nature of this equitable balancing act: The Supreme Court split 5-1-1, with
the majority and dissent reaching opposite conclusions as a matter of law
as to what the balance of equities required—an odd juxtaposition noted
by the concurring justice, who would have remanded the case so that the
trial court could consider the issue. See id. at 277 (Rogers, C.J., concurring)
(“[t]he majority and the dissent both claim there is no need to remand this
case to the trial court because the equities are so one-sided that there is only
one proper conclusion for the trial court to reach. Yet, after weighing the
equities, the majority and the dissent reach opposite conclusions regarding
the direction in which the equities tip.”).
Equitable subrogation frequently arises in the context of insurance claims.
A life insurance carrier has no contractual right to bring a claim against
the party who caused the death for which the insurer contracted to pay, but
the insurer may bring a claim for equitable subrogation. (Internal citation
omitted.) Lawrence v. O & G Indus., Inc., 319 Conn. 641, 654 n.11 (2015).
Though the “default rule” is that a landowner’s property insurer may not
bring an equitable subrogation action against a tenant who causes damage to
the entire building, DiLullo v. Joseph, 259 Conn. 847, 854 (2002), the exception

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 1F-1 Failure to Render Aid/Emergency Assistance

nearly swallows it whole: A landlord’s property insurer may sue a tenant, even
if the tenant’s lease does not mention equitable subrogation, so long as the
lease states that the tenant (1) is responsible for his negligence and (2) should
get his own insurance to cover that responsibility. See Amica Mut. Ins. Co. v.
Muldowney, 328 Conn. 428, 441-42 (2018).
In the context of property foreclosure law and the determination of which
creditor holds priority, the doctrine of equitable subrogation can “provide an
exception to the first in time, first in right rule and has been applied in certain
limited circumstances to rearrange the priorities of parties in a case . . . . The
object of [equitable] subrogation is the prevention of injustice . . . . Where
fairness and justice require, one who advances money to discharge a prior
lien on real or personal property and takes a new mortgage as security is
entitled to be subrogated to the rights under the prior lien against the holder
of an intervening lien of which he was ignorant.” Deutsche Bank Nat’l Trust
Co. v. DelMastro, 133 Conn. App. 669, 675 (2012) (citations omitted); see
Rathbun v. Health Net of the Ne., Inc., 315 Conn. 674 (2015).

1F-1 FAILURE TO RENDER AID/EMERGENCY ASSISTANCE

Notes
Connecticut adheres to the traditional concept that, absent a special
relationship of custody or control, the common law imposes no obligation
to render emergency assistance or protect a stranger from the conduct of
a third person. See Bohan v. Last, 236 Conn. 670, 679 (1996). A contract
may create the obligation to protect third parties from foreseeable, physical
harm, but the contract either must expressly say so, or the parties to it must
unambiguously intend the scope of the contractual services to include the
obligation. Demond v. Project Serv., LLC, 331 Conn. 816, 845-46 (2019); see
Restatement (Second) of Torts, § 324A.
The principal “exception to this general rule arises when a definite
relationship between the parties is of such a character that public policy
justifies the imposition of a duty to aid or to protect another.” Cannizzaro v.
Marinyak, 312 Conn. 361, 366-67 (2014). However, it is a “limited exception[,]”
id. at 367, and our courts have treated it as such. See id. at 371 (upholding
summary judgment for defendant property owner; no duty to protect driver
injured in auto accident with worker who drank on defendant’s property);
see Roe No. 1 v. Boy Scouts of Am. Corp., 147 Conn. App. 622 (2014) (no duty
to protect Boy Scout from sexual assault by troop leader). The emphasis is
on the conduct of the party in question, not on the relationship between that
party and other individuals involved in a given incident. Thus, in Bohan,
the court noted that Conn. Gen. Stat. § 30-86 imposes liability on a person

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 False Arrest/Imprisonment1F-2

who provides alcoholic beverages to a minor, but that it does so where the
individual has provided or otherwise facilitated consumption of alcohol, not
because of some relationship between the individual and the minor. Bohan,
236 Conn. at 679. Following this logic, the court in Rangel v. Parkhurst,
64 Conn. App. 372, 380 (2001), held that parents were not responsible for
injuries caused by intoxicated minors where they had not provided alcohol or
otherwise assisted in the negligent conduct.
A person who has no duty to render aid or assistance may create such a
duty, however, if he “gratuitously or for consideration . . . render[s] services
to another which he should recognize as necessary for the protection of
the other’s person or things . . . .” Grenier v. Comm’r of Transp., 306 Conn.
523, 547 (2012) (once fraternity offered to drive student to mandatory event,
fraternity assumed duty to protect him and transport him safely). To be
liable, the person’s actions must increase the risk of harm, or cause harm due
to the other person’s reliance on those actions. See id.
In Biron v. G.E.M. Manufacturing, 2009 WL 1707480 (Conn. Super. Ct.
May 28, 2009), the court held that the plaintiff had pleaded a legally sufficient
claim by alleging that the defendants assumed a duty to the plaintiff by
taking the keys away from a drunk driver but then subsequently allowing the
same driver to operate a motor vehicle.
Conn. Gen. Stat. § 52-557b exempts certain classes of emergency and
school personnel from civil liability for negligence in rendering emergency
assistance.

1F-2 FALSE ARREST/IMPRISONMENT

In order to prevail on a claim of false arrest/imprisonment, a plaintiff must
prove that the defendant:
1) Unlawfully restrained the physical liberty of the plaintiff;
2) with the intent to impose a confinement, or with the knowledge
that a confinement was the substantially certain result of his
conduct;
3) against the plaintiff’s will and without his consent;
4) causing damages to the plaintiff.
Berry v. Loiseau, 223 Conn. 786, 820 (1992) [1, 3, 4]; Green v. Donroe, 186
Conn. 265, 268 (1982) [2].
Statute of Limitations
If the plaintiff alleges intentional conduct by the defendant, the limitations
period is three years; if not, it is two years. See Conn. Gen. Stat. §§ 52-577 &

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 1F-2 False Arrest/Imprisonment

52-584; Rivera v. Double A Transp., Inc., 248 Conn. 21, 31-34 (1999) (noting
distinction between claims of intentional false imprisonment and claims of
non-intentional false imprisonment for limitations purposes).
Notes
Connecticut courts appear to use the terms “false arrest” and “false
imprisonment” interchangeably to refer to a single tort cause of action.
See, e.g., Green, 186 Conn. at 267; LoSacco v. Young, 20 Conn. App. 6, 19,
cert. denied, 213 Conn. 808 (1989). “Any period of such [unlawful] restraint,
however brief in duration, is sufficient to constitute a basis for liability.”
Berry, 223 Conn. at 820 (quoting Green, 186 Conn. at 267). The willing
acquiescence of a plaintiff is fatal to an action for false arrest/imprisonment.
LoSacco, 20 Conn. App. at 19. A cause of action for false arrest/imprisonment
will not lie if “the plaintiff’s arrest results from the . . . institution of and
compliance with proper legal authority . . . .” Id. A plaintiff must prove “that
the arresting officer did not have probable cause to arrest [him][,]” Beinhom v.
Saraceno, 23 Conn. App. 487, 491 (1990), cert. denied, 217 Conn. 809 (1991), in
order to prevail.
Thus, if “the defendant has attempted to comply with legal requirements, and
has failed to do so through no fault of his own, false imprisonment will not
lie . . . . The policy is to give the defendant the privilege of making reasonable
efforts to bring his case properly before the court, without liability unless his
ultimate purpose is an improper one.” Nodoushani v. S. Conn. State Univ.,
152 Conn. App. 84, 93 (2014). In addition, judges enjoy absolute immunity
“from an action for false imprisonment when the imprisonment was ordered
(however erroneously) by a judgment in a proceeding in which he had
jurisdiction over the person, the process, and the subject-matter.” McVeigh v.
Ripley, 77 Conn. 136, 139 (1904).
In addition, “[a] false arrest claim is defeated by the plaintiff’s conviction for
the offense for which he was arrested.” Phelan v. Sullivan, 541 F. App’x 21,
23 (2d Cir. 2013) (summary order). It is not clear whether Connecticut law
makes “favorable termination” of any subsequent prosecution an element
of false arrest. See Roesch v. Otarola, 980 F.2d 850, 852-53 (2d Cir. 1992)
(holding that it is); but see Weyant v. Okst, 101 F.3d 845, 853 (2d Cir. 1996)
(questioning Roesch, albeit in a case under the New York law). However,
the Second Circuit and the District Court both have held that participation
in accelerated rehabilitation is not a “favorable termination” for purposes
of a suit for false arrest. See Miles v. City of Hartford, 445 F. App’x 379, 383
(2d Cir. 2011) (summary order); Murphy v. Kearney, 2010 WL 2640041, at *4
(D. Conn. June 28, 2010).

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 Fraud1F-3

1F-3 FRAUD
The elements of a cause of action for fraud are:
1) A false representation was made as a statement of fact;
2) the statement was untrue and known to be untrue by the party
making it;
3) the statement was made to induce the other party to act upon it;
and
4) the other party did so act upon that false representation to his
injury.
Capp Indus., Inc. v. Schoenberg, 104 Conn. App. 101, 116, cert. denied,
284 Conn. 941 (2007).
Statute of Limitations
Three years from the date of the act complained of. Conn. Gen. Stat.
§ 52-577; see Szynkowicz v. Bonauito-O’Hara, 170 Conn. App. 213, 228 (2017).
(Note the distinction between the elements of an action for fraud and the
elements of fraudulent concealment, which will toll the running of the statute
of limitations in some cases. The original fraudulent conduct may not be
sufficient to establish fraudulent concealment. See World Wrestling
Ent., Inc v. THQ, Inc., 2008 WL 4307568 (Conn. Super. Ct. Aug. 29,
2008)).
Notes
Courts sometimes use the terms “fraud” and “misrepresentation”
interchangeably. Fraud is intentional misrepresentation; unlike negligent
or innocent misrepresentation, it requires the intent to induce the deceived
party to act. See Warner v. Brochendorff, 136 Conn. App. 24, 33 n.9, cert.
denied, 306 Conn. 902 (2012). Generally, fraud concerns present or past facts;
however, “a promise to do an act in the future, when coupled with a present
intent not to fulfill the promise, is a false representation.” Brown v. Otake, 164
Conn. App. 686, 706 (2016). Specific intent to induce the defrauded party to
act is an essential element of fraud. See Villages, LLC v. Longhi, 187 Conn.
App. 132, 146 (2019).
Though mere silence is not fraud, “[a] party who assumes to speak must
make a full and fair disclosure as to the matters about which he assumes
to speak.” Saggese v. Beazley Co. Realtors, 155 Conn. App. 734, 753 (2015).
Similarly, “in cases involving claims of financial fraud . . . a false claim of
objectivity may render a statement actionable.” NetScout Sys., Inc. v. Gartner,
Inc., 334 Conn. 396, 423 n.14 (2020) (noting “significant difference[,]” in fraud
action, between “predictive” and “standardized” rating of securities and
“inherently subjective” rating of products and services). So-called “[f]raud

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 1F-4 Fraudulent Conveyance

by non-disclosure” requires a “request or an occasion or a circumstance”

to speak, id. at 753, and, as the objective of a half-hearted disclosure, “an
intent or expectation that the other party will make or will continue in
a mistake . . . .” Reville v. Reville, 312 Conn. 428, 441 (2014). In addition,
fraud requires proof of the first three elements by clear and convincing
evidence (even if our courts have been a little less than clear when stating
the plaintiff’s burden of proof). See Saggese, 155 Conn. App. at 753 (“which
higher standard we have described as clear and satisfactory or clear, precise
and unequivocal”). The litigation privilege provides an attorney with absolute
immunity from a claim of fraud for his conduct during judicial proceedings.
See Simms v. Seaman, 308 Conn. 523, 545 (2013).
A successful fraud action entitles the plaintiff to recover punitive damages
because the perpetrator of a fraud necessarily has “show[n] a reckless indifference
to the rights of others or an intentional and wanton violation of those rights.”
Aurora Loan Servs., LLC v. Hirsch, 170 Conn. App. 439, 455 n.12 (2017).
In addition to providing a claim for damages, fraud also is a basis for opening
a prior judgment. See Chapman Lumber, Inc. v. Tager, 288 Conn. 69, 107
(2008).

1F-4 FRAUDULENT CONVEYANCE

A party alleging a fraudulent transfer or conveyance bears the burden of
proving either:
1) That the conveyance was made without substantial consideration
and rendered the transferor unable to meet his obligations; or
2) that the conveyance was made with a fraudulent intent in which
the grantee participated.
Litchfield Asset Mgmt. Corp. v. Howell, 70 Conn. App. 133, 140-41, cert.
denied, 261 Conn. 911 (2002), overruled on other grounds by Robinson v.
Coughlin, 266 Conn. 1, 9 (2003).
Statute of Limitations
Three years from the date of the act complained of. Conn. Gen. Stat. § 52-577;
see Einbinder & Young, P.C. v. Soiltesting, Inc., 36 Conn. Supp. 277, 279-80
(1980).
Notes
The two elements are alternative grounds to set aside a fraudulent
conveyance; a party “need not satisfy both of these tests.” Kosiorek v.
Smigelski, 138 Conn. App. 695, 724 (2012), cert. denied, 308 Conn. 901
(2013). As with other claims of fraud, the elements of a claim for fraudulent
conveyance, including whether the defendants acted with a fraudulent

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 Implied Contract, Breach of1I-1

intent, must be proven by “clear, precise and unequivocal” evidence. Tyers v.

Coma, 214 Conn. 8, 11 (1990). This “requires a reasonable belief that the
facts asserted are highly probably true or that the probability that they are
true . . . is substantially greater than the probability that they are false.” 19th
Hole Rest., Inc. v. Steiber Realty, LLC, 2015 WL 5893834, at *3 (Conn. Super.
Ct. Sept. 4, 2015) (ellipsis in original) (quoting Patrocinio v. Yalanis, 4 Conn.
App. 33, 35-36 (1985)). A successful fraudulent conveyance action entitles
the plaintiff to the wrongly-conveyed property, or to money damages for the
property’s value. See Crepeau v. Gronager, 41 Conn. App. 302, 316-17 (1996);
Foisie v. Foisie, 2017 WL 3011555, at *5 (Conn. Super. Ct. June 12, 2017).
The legislature has codified the common law of fraudulent conveyances
in order to “provide[ ] relief to unsecured creditors when there has been
a transfer of a debtor’s assets and the circumstances establish that the
transfer was fraudulent.” Geriatrics, Inc. v. McGee, 332 Conn. 1, 3 (2019).
The Connecticut Uniform Fraudulent Transfer Act expressly shares power
with pre-existing common-law principles and defenses. See Conn. Gen. Stat.
§ 52-552k. Indeed, “CUFTA is largely an adoption and clarification of the
standards of the common law of fraudulent conveyances, except that the act’s
remedies are broader than those available under the common law.” Geriatrics,
Inc., 332 Conn. at 13. This includes common-law agency principles; id.; as
a consequence, a transfer by an authorized agent qualifies as a potentially
fraudulent transfer “made by a debtor” under CUFTA. Id. at 23-24.
CUFTA lists eleven factors that a court “may” consider when deciding whether
a transfer was made with actual intent to defraud. See Conn. Gen. Stat. § 52-
552e(b). The existence of actual intent is question of fact subject to the clearly
erroneous standard. See McKay v. Longman, 332 Conn. 394, 417 (2019).

1I-1 IMPLIED CONTRACT, BREACH OF

The elements of an action for breach of an implied contract are:
1) Formation of an implied agreement;
2) performance by one of the parties to that agreement;
3) breach of a material term or terms of the agreement by another
party;
4) damages resulting from that breach; and
5) the lack of an express contract governing the same subject
matter.
Pelletier v. Galske, 105 Conn. App. 77, 81 (2007), cert. denied, 285 Conn. 921
(2008); see also Janusauskas v. Fichman, 264 Conn. 796, 804 (2003) (“[w]hether

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 1I-1 Implied Contract, Breach of

a contract is styled express or implied involves no difference in legal effect,

but lies merely in the mode of manifesting assent”).
Statute of Limitations
Six years after the right of action accrues. Conn. Gen. Stat. § 52-576(a); see
Amoco Oil Co. v. Liberty Auto & Electric Co., 262 Conn. 142, 153 (2002)
(action accrues “at the time the breach of contract occurs . . . when the injury
has been inflicted.”)
Notes
The elements of an action for breach of an implied contract are the same
as for breach of an express contract. Courts also refer to such agreements
as constructive contracts. A cause of action for breach of an implied
contract merely is one of several methods of obtaining restitution in the
absence of an express contract. See QUANTUM MERUIT, infra; UNJUST
ENRICHMENT, infra.
Although the underlying rationale is essentially the same, Connecticut law
describes implied contracts in two different ways, depending on whether the
contract arises in the employment context.
Outside the employment context, the Supreme Court has said the following:
A true implied [in fact] contract can only exist where there is no
express one. It is one which is inferred from the conduct of the
parties though not expressed in words. Such a contract arises
where a plaintiff, without being requested to do so, renders
services under circumstances indicating that he expects to be
paid therefore, and the defendant, knowing such circumstances,
avails himself of the benefit of those services. In such a case, the
law implies from the circumstances, a promise by the defendant
to pay the plaintiff what those services are reasonably worth.
Janusauskas, 264 Conn. at 805 (internal quotation marks omitted; internal
citations omitted).
With respect to implied contracts of employment, the Appellate Court has
stated that a plaintiff must show “that the defendants had agreed, either
by words or action or conduct, to undertake any form of actual contract
commitment to the plaintiff under which she could not be terminated
without just cause.” Reynolds v. Chrysler First Com. Corp., 40 Conn.
App. 725, 730, cert. denied, 237 Conn. 913 (1996) (internal quotation omitted);
Morrissey-Manter v. Saint Francis Hosp. & Med. Ctr., 166 Conn. App. 510,
520, cert. denied, 323 Conn. 924 (2016).

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 Implied Indemnification1I-2

1I-2 IMPLIED INDEMNIFICATION

The elements of a cause of action for implied indemnification are:
1) The plaintiff and defendant were joint tortfeasors in an
underlying civil action;
2) in which the defendant’s active negligence was the direct,
immediate cause of the injuries suffered in that underlying
action;
3) that active negligence superseded the plaintiff’s passive
negligence;
4) the defendant was in control of the situation to the exclusion of
the plaintiff; and
5) the plaintiff had no reason to know of, or anticipate, that the
defendant would act in a negligent fashion and could reasonably
rely on the defendant not to be negligent.
ATC P’ship v. Coats N. Am. Consol., Inc., 284 Conn. 537, 551-52 (2007).
Statute of Limitations
The statute of limitations for an implied indemnification action is three years
“from the date of the determination of the action against the party which is
seeking indemnification by either judgment or settlement.” Conn. Gen. Stat.
§ 52-598a.
Notes
There is “[o]rdinarily . . . no right of indemnity or contribution between
joint tort-feasors.” Crotta v. Home Depot, Inc., 249 Conn. 634, 642 (1999).
An action for implied indemnification—also called “common-law,” or
“tortious” indemnification—thus arises only in the narrow circumstances set
forth in ATC Partnership and Smith v. New Haven, 258 Conn. 56, 66 (2001),
namely, “[t]he presence of two tortfeasors . . . one, whose passive negligence
resulted in a monetary recovery by the plaintiff; and a second, whose active
negligence renders him liable to the first by way of reimbursement.” Id.
Implied indemnification is distinct from a cause of action based on an express
contractual indemnification provision. The payment of money damages,
and/or the incursion of legal costs, are a prerequisite to an action for implied
indemnification. ATC Partnership, 284 Conn. at 552; see Chicago Title Ins.
Co. v. Accurate Title Searches, Inc., 173 Conn. App. 463, 480-82 (2017). Because
of its limited scope, a party claiming implied indemnification “may bring an
action for such indemnity only with regard to liability it incurred through
tortious conduct, not for any liability arising from contract.” Horace Mann Ins.
Co. v. Nationwide Mut. Ins. Co., 337 Fed. Appx. 13, 14 (2d Cir. Conn. 2009).

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 1I-3 Injurious Falsehood

The “situation” in a claim for common-law indemnification is the dangerous

condition that allegedly exposed the plaintiff to harm and not the allegedly
negligent conduct of the defendant. See Pellecchia v. Conn. Light & Power
Co., 139 Conn. App. 767, 775 (2012), cert. denied, 308 Conn. 911 (2013) (“the
dangerous condition, or ‘situation,’ that allegedly caused such harm by virtue
of the defendant’s negligence was plainly the downed power line, not the
negligent conduct itself”). In addition, it “is possible to have common-law
indemnification between unrelated parties whose separate and independent
streams of negligence, one active and the other passive, give rise to a
foreseeable risk of harm from the same condition of danger.” Id. at 777. If one
party is in exclusive control of a situation, it does not bar an indemnification
claim if another party with an independent duty of care to the plaintiff
separately breached that duty—so long as that breach and the breach by
the active tortfeasor exposed the plaintiff to the same dangerous condition.
Id. at 777-78 (independent failure of company hired to provide emergency
communication services to notify town or power company of downed power
line did not preclude claim for indemnification against power company for
failing to de-energize line).
There is no common law right to indemnification against municipal
defendants in an action brought pursuant to the highway defect statute
(Conn. Gen. Stat. § 13a-149). In such an action, “as a matter of law, the
allegations regarding the actions of the town defendants legally can only
be construed as allegations that the town defendants breached their
statutory duty pursuant to § 13a-149 and not as allegations of negligence . . .”
Pellecchia v. Conn. Light & Power Co., 147 Conn. App. 650, 659 (2014). As a
result, the plaintiff cannot demonstrate that the defendant was negligent and
thus cannot prove the elements of an indemnification claim.

1I-3 INJURIOUS FALSEHOOD

The elements of a cause of action for injurious falsehood are:
1) Publication by the defendant;
2) of a statement harmful to interests of the plaintiff having
pecuniary value;
3) if the defendant intends for publication of the statement to
result in harm to those interests, or either recognizes, or should
recognize, that publication of the statement is likely to result in
such harm; and
4) the defendant either knows the statement is false, or acts with
reckless disregard for its truth or falsity.

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 Innocent Misrepresentation1I-5

National Distrib. Sys., Inc. v. Steinis, 1999 WL 476686, at *3 (Conn. Super. Ct.
June 25, 1999) (citing Restatement (Second) of Torts § 623A).
Statute of Limitations
Although no Connecticut court has addressed the issue, the statute
of limitations for injurious falsehood likely comes under the two-year
limitations period for libel or slander actions. Conn. Gen. Stat. § 52-597.
Notes
It is not clear whether injurious falsehood is a “distinct tort” under Connecticut
law, National Distrib. Sys., Inc. v. Steinis, 1999 WL 476686, at *3 (Conn.
Super. Ct. June 25, 1999), or merely a broad category of tort actions that
includes such species as slander of title and commercial disparagement. See
Elm St. Builders, Inc. v. Enter. Park Condo. Ass’n, Inc., 63 Conn. App. 657, 670
(2001). Quite a few trial courts, however, have discussed injurious falsehood
as its own tort cause of action—e.g., in the context of the proper measure of
damages for slander of title. See Peterken v. Epright, 2002 WL 2005698, at *3
(Conn. Super. Ct. July 29, 2002) (“[l]iability for the publication of an injurious
falsehood is limited to pecuniary loss”). Moreover, injurious falsehood imposes
three more stringent proof requirements than does defamation: (1) falsity of the
statement, whereas in a defamation action, falsity is presumed and truth is an
affirmative defense; (2) fault, whereas defamation is, in essence, a strict liability
tort; and (3) proof of pecuniary loss. See Time Was Garage, LLC v. Giant
Steps, Inc., 2011 WL 1888096, at *7 (Conn. Super. Ct. Apr. 29, 2011) (citing
Restatement (Second), Torts § 623A, p. 334 (1977)).

1I-4 INJURY ON OWNER’S LAND

See LANDOWNER LIABILITY FOR INJURIES ON PROPERTY.

1I-5 INNOCENT MISREPRESENTATION

To prevail on a claim of innocent misrepresentation, a plaintiff must establish:
1) A representation of material fact;
2) made for the purpose of inducing the plaintiff to act:
3) which representation is untrue, and as to which the declarant has
the means of knowing, ought to know, or has the duty to know
the truth;
4) justifiable reliance by the plaintiff on the representation by the
defendant; and
5) damages.

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 1I-6 Insurance Agent/Broker Malpractice

Johnnycake Mountain Assocs. v. Ochs, 104 Conn. App. 194, 204 n.13 (2007),
cert. denied, 286 Conn. 906 (2008) [3]; Matyas v. Minck, 37 Conn. App. 321,
333 (1995) [1, 2, 4, 5].
Statute of Limitations
The statute of limitations for innocent misrepresentation is three years from
the date of the act complained of. Conn. Gen. Stat. § 52-577.
Notes
Innocent misrepresentation, “in contrast to the tort of negligent
misrepresentation, is predicated on principles of warranty.” Kramer v. Petisi,
285 Conn. 674, 686 n.10 (2008). Indeed, innocent misrepresentation comes
close to imposing strict liability on a defendant. It requires no showing of
intent, fault, or a failure of reasonable care, see Sturm v. Harb Dev.,
LLC, 298 Conn. 124, 144 (2010), although courts have tended to apply the
doctrine in a few, relatively narrow contexts—e.g., the sale of goods and
construction. See Johnson v. Healy, 176 Conn. 97, 101 (1978) (discussing
history of innocent misrepresentation in Connecticut); see also United
Concrete Prods., Inc. v. NJR Constr., LLC, 2017 WL 6888843, at *4 (Conn.
Super. Ct. Dec. 13, 2017) (CUTPA proscribes a broader range of conduct
than common-law action for innocent misrepresentation) (citing Hinchliffe v.
Am. Motors Corp., 184 Conn. 617 (1981)). The Supreme Court has declined to
extend the theory of innocent misrepresentation to the provision of medical
services because they cannot be considered a “sale, rental, or exchange
transaction.” Farrell v. Johnson & Johnson,    A.3d   , 2020 WL 1887720
(Conn. Apr. 15, 2020). As the theory of innocent misrepresentation is based
on principles of warranty, claims under the theory primarily apply to
business transactions between a buyer and seller. Id.
The proper measure of damages for an innocent misrepresentation claim
involving damage to property is not the cost of repair. Damages are measured
by the difference between the value of the property as warranted and the
value of the property as it actually is (at least where the cost of repair is
substantially greater). Little Mountains Enters., Inc. v. Groom, 141 Conn.
App. 804, 810 (2013) (citing Johnson v. Healy, 176 Conn. 97 (1978)).

1I-6 INSURANCE AGENT/BROKER MALPRACTICE

To prevail on a malpractice claim against an insurance agent or broker, a
plaintiff must prove the following elements:
1) The requisite standard of care for a reasonable insurance agent
or broker under the circumstances;
2) a deviation from that standard of care;

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 Insurance Agent/Broker Malpractice1I-6

3) a causal connection between the deviation and the claimed

injury; and
4) damages.
See Byrd v. Ortiz, 136 Conn. App. 246, 253 (2012) (citing Dimeo v. Burns,
Brooks & McNeil, Inc., 6 Conn. App. 241, cert. denied, 199 Conn. 805 (1986) and
Ursini v. Goldman, 118 Conn. 554, 559-60 (1934)) [1, 2, 4]; Erickson Metals Corp. v.
McManus, 2008 WL 1734880, at *2-3 (Conn. Super. Ct. Mar. 27, 2008) [3]; Pine
Orchard Yacht & Country Club, Inc. v. Sinclair Ins. Grp., Inc., 2017 WL
3080801, at *2 (Conn. Super. Ct. June 12, 2017).
Statute of Limitations
The statute of limitations for an insurance broker/agent malpractice action
is two years from the date the injury is first sustained or discovered or in the
exercise of reasonable care should have been discovered, and in no event more
than three years from the date of the act complained of. See Conn. Gen. Stat.
§ 52-584. However, if a plaintiff sues under a breach of contract theory, then
the limitations period is six years. See Conn. Gen. Stat. § 52-576(a).
Notes
A plaintiff is not required to allege or prove that the insurance broker
engaged in fraud or inequitable conduct in order to prevail on a claim for
agent or broker malpractice. Byrd, 136 Conn. App. at 252. As with other
types of malpractice, “Connecticut recognizes a cause of action against
an insurance agent for failure to obtain insurance under a theory of either
professional malpractice or breach of contract.” Erickson, 2008 WL
1734880, at *2 (citing Ursini, 118 Conn. at 559-60). The latter theory likely
requires proof that the agent violated the client’s specific instructions, or
failed to perform specific tasks set forth in the contract. See Meyers v.
Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 311 Conn. 282, 292-94
(2014) (distinguishing between tort and contract theories of liability for legal
malpractice). Although Ursini involved the outright failure to obtain any
insurance for a client, at least one superior court decision has expanded the
scope of an insurance agent’s duty potentially to include a duty to advise a
client of the proper insurance coverage that he should purchase. See Berlin
Corp. v. Cont’l Cas. Co., 2006 WL 3360298, at *1-2 (Conn. Super. Ct. Nov. 2,
2006) (denying motion to strike count of plaintiff’s malpractice claim alleging
that the defendant “negligently failed to provide adequate insurance coverage
to the plaintiffs, to advise the plaintiffs to purchase liquor liability coverage,
and to review and explain the terms of the plaintiffs’ policy”).
A claim that an insurance agent or broker breached a fiduciary duty
to the plaintiff is insufficient to support an action for violation of the
Connecticut Unfair Insurance Practices Act (“CUIPA”). Such a claim also

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 1I-7 Insurance—Bad Faith by Insurer

cannot establish a violation of the Connecticut Unfair Trade Practices Act

(“CUTPA”), since an insurance-related CUTPA claim must allege a violation
of CUIPA. State v. Acordia, Inc., 310 Conn. 1, 37 (2013) (“unless an insurance
related practice violates CUIPA or, arguably, some other statute regulating a
specific type of insurance related conduct, it cannot be found to violate any
public policy and, therefore, it cannot be found to violate CUTPA.”). Thus, as
with other types of professional malpractice, an allegation of insurance agent/
broker malpractice does not form the basis for a valid unfair trade practices
claim. See Silk, LLC v. Cowles & Connell, 2004 WL 1245915, at *2-4 (Conn.
Super. Ct. May 25, 2004). Assignment of the right to bring such an action is
not against public policy. Scacca v. Todd & Cassanelli, Inc., 2008 WL 2169159,
at *2-3 (Conn. Super. Ct. May 6, 2008).

1I-7 INSURANCE—BAD FAITH BY INSURER

The elements of a cause of action against an insurer for bad faith are:
1) The existence of an insurance policy;
2) under which the plaintiff was entitled to recover benefits;
3) a refusal to pay by the insurer that had no reasonable basis; and
4) the insurer knew, or recklessly disregarded, the fact that it had no
reasonable basis to withhold payment.
Bergen v. Standard Fire Ins. Co., 1997 WL 809957, at *16 (Conn. Super. Ct.
Dec. 31, 1997) [1, 2, 3, 4]; see Grand Sheet Metal v. Protection Mut. Ins. Co.,
34 Conn. Supp. 46, 51 (1977) [1, 2].
Statute of Limitations
The statute of limitations for a bad faith claim against an insurer is six years.
Conn. Gen. Stat. § 52-576(a).
Notes
The foundation of a claim for bad faith against an insurer is the “implied
covenant of good faith and fair dealing [that] has been applied by this court in
a variety of contractual relationships, including . . . insurance contracts . . . .”
Buckman v. People Express, Inc., 205 Conn. 166, 170 (1987). A plaintiff must
prove that he is entitled to recover under the subject policy before an insurer
can be shown to have acted in bad faith. Id.
An insurer has the right to fairly dispute a claim made under one of its
policies. McCauley Enters. v. New Hampshire Ins. Co., 716 F. Supp. 718, 721
(D. Conn. 1989). Therefore, a plaintiff must show that the insurer’s refusal to
pay was “egregious,” and done with “reckless indifference to the rights of the
insured.” Bergen, 1997 WL 809957, at *15. Mere breach of contract will not

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 Insurance—Breach of Contract1I-8

suffice. Id. (citing Buckman, 205 Conn. at 170-71). Moreover, “[b]ad faith in
general implies both actual or constructive fraud, or a design to mislead or
deceive another, or a neglect or refusal to fulfill some duty or some contractual
obligation, not prompted by an honest mistake as to one’s rights or duties,
but by some interested or sinister motive . . . . Bad faith means more than
mere negligence; it involves a dishonest purpose.” De La Concha of Hartford,
Inc. v. Aetna Life Ins. Co., 269 Conn. 424, 432-33 (2004) (internal citations and
quotation marks omitted); PSE Consulting, Inc. v. Frank Mercede & Sons, Inc.,
267 Conn. 279, 305 (2004). Do not overlook the motive element of bad faith;
several trial courts have struck bad faith claims for failure to allege a dishonest
purpose by the insurer. See, e.g., Family Garage, Inc. v. Liberty Mut. Fire Ins.
Co., 2017 WL 5202841, at *4 (Conn. Super. Ct. Oct. 2, 2017) (no allegation “that
the defendant acted with a furtive design . . . from a sinister motive or with
malice toward the plaintiff”); Chestnut Inv., LLC v. Nautilus Ins. Co., 2012
WL 310761, at *4 (Conn. Super. Ct. Jan. 6, 2012); Mauro v. Cashman, 2010 WL
5573758, at *2 (Conn. Super. Ct. Dec. 14, 2010).
For a discussion of the factual allegations necessary to properly allege bad faith,
see Marder v. Nationwide Ins. Co., 61 Conn. L. Rptr. 269 (Conn. Super. Ct. 2015).

1I-8 INSURANCE—BREACH OF CONTRACT

As with any contract claim, a plaintiff seeking to prevail on a claim for
breach of an insurance contract must prove:
1) The formation of an agreement;
2) performance by one party;
3) breach of the agreement (failure to perform) by the other party;
and
4) damages.
Chiulli v. Zola, 97 Conn. App. 699, 706-07 (2006).
Statute of Limitations
Six years. Conn. Gen. Stat. § 52-576(a).
Notes
In the liability context, claims of breach of contract against insurers generally
fall under two categories: breach of the duty to defend and breach of the duty
to indemnify. Under property and uninsured/underinsured motorist policies,
the claim generally is simply for failure to pay a covered claim.
Note also that breach of contract claims are not limited to claims against
insurers. Insureds also will be liable for claims of failure to pay premiums,
breach of notice/cooperation clauses, breach of conditions, etc. Breaches by

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 1I-9 Insurance—Breach of Duty to Defend

the insured that may result in the forfeiture of coverage will be subject to an
analysis of the prejudice to the insurer, in order to avoid “disproportionate
forfeiture.” See Aetna Cas. & Sur. Co. v. Murphy, 206 Conn. 409, 419 (1988),
overruled in part by Arrowood Indem. Co. v. King, 304 Conn. 179, 201 (2012)
(holding that insurer must prove it was prejudiced by insured’s breach).
In addition, insurance breach of contract claims may be brought by third-
party beneficiaries. Hilario’s Truck Ctr., LLC v. Rinaldi, 183 Conn. App. 597,
604 (2018). A third-party beneficiary is someone to whom the contracting
parties intended to confer enforceable rights under the terms of the contract.
Id. at 605. Simply being a foreseeable beneficiary of a contract is not sufficient
to confer standing. Id. at 604.

1I-9 INSURANCE—BREACH OF DUTY TO DEFEND

To prevail on a claim that an insurer breached its duty to defend, a plaintiff
must establish the following elements:
1) The existence of an insurance policy;
2) an underlying civil action against the plaintiff that alleges facts which
bring the injury possibly within the coverage of that policy; and
3) a denial of coverage and refusal to defend the underlying civil
action by the insurer.
Hartford Cas. Ins. Co. v. Litchfield Mut. Fire Ins. Co., 274 Conn. 457, 463-64
(2005).
Statute of Limitations
The statute of limitations for a breach of the duty to defend is six years.
Conn. Gen. Stat. § 52-576(a).
Notes
The duty to defend is extremely broad and is measured not by the insured’s
ultimate liability, but by the allegations of the underlying complaint. Hartford
Cas. Ins. Co. v. Litchfield Mut. Fire Ins. Co., 274 Conn. 457, 463 (2005). Thus,
“[i]f an allegation of the complaint falls even possibly within the coverage,
then the insurance company must defend the insured.” Moore v. Continental
Cas. Co., 252 Conn. 405, 409 (2000). However, an insurer has a duty to defend
“only if the underlying complaint reasonably alleges an injury that is covered
by the policy.” Misiti, LLC v. Travelers Prop. Cas. Co. of Am., 308 Conn. 146,
156 (2013) (emphasis in original). Thus, a court will not predicate the duty to
defend on “a reading of the complaint that is . . . conceivable but tortured and
unreasonable.” Id. at 156. In addition, a court may consider facts extrinsic to
the underlying complaint only if they support the duty to defend. Id. at 161 (it
may not consider them if they support a denial of coverage).

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 Intentional Infliction of Emotional Distress1I-11

1I-10 INTENTIONAL ASSAULT

To prevail on a claim of intentional assault, a plaintiff must establish the
following elements:
1) The defendant;
2) intentionally;
3) caused the plaintiff;
4) imminent apprehension of harmful or offensive contact; and
5) that apprehension is one which would be normally aroused in the
mind of a reasonable person under similar circumstances.
Dewitt v. John Hancock Mut. Life Ins. Co., 5 Conn. App. 590, 594 (1985)
(citing Restatement (Second) of Torts, § 21).
Statute of Limitations
The statute of limitations for a claim of intentional assault is three years.
Conn. Gen. Stat. § 52-577.
Notes
The feared contact in question must be bodily contact; “[a]n assault cannot
be accomplished by words alone. There must be an overt act evidencing some
corporal threat.” Kindschi v. City of Meriden, 2006 WL 3755299 (Conn. Super.
Ct. Nov. 28, 2006). As in the criminal context, justification is a viable defense
to a civil assault claim. See Burke v. Mesniaeff, 177 Conn. App. 824, 844-46
(2017), aff ’d, 334 Conn. 100 (2019) (upholding finding that defendant was
protecting house guests when he “took the plaintiff by the arm to escort her
from the house”). In the civil context, the burden to prove justification is on
the defendant. See id.; Housing Auth. of City of Stamford v. Morrow, 1995 WL
348025, at *10 (Conn. Super. Ct. May 16, 1995).
A person may be found guilty of both intentional and reckless assault at
the same time, the two are not mutually exclusive. State v. Alicea, 191 Conn.
App. 421, 426 (2019), cert. granted, 333 Conn. 937 (2019).

1I-11 INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

To prevail on a claim of intentional infliction of emotional distress, a plaintiff
must prove four elements:
1) That the actor intended to inflict emotional distress; or that he
knew or should have known that emotional distress was a likely
result of his conduct;
2) that the conduct was extreme and outrageous;

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 1I-11 Intentional Infliction of Emotional Distress

3) that the defendant’s conduct was the cause of the plaintiff’s

distress; and
4) that the emotional distress sustained by the plaintiff was severe.
Marsala v. Yale-New Haven Hosp., Inc., 166 Conn. App. 432, 451 (2016) (citing
Perez-Dickson v. City of Bridgeport, 304 Conn. 483, 526-27 (2012)).
Statute of Limitations
The statute of limitations for a claim of intentional infliction of emotional
distress is three years from the date of the act complained of. Conn. Gen.
Stat. § 52-577; see DeCorso v. Watchtower Bible & Tract Society of New
York, Inc., 78 Conn. App. 865, 873, cert. denied, 266 Conn. 931 (2003). The
continuing course of conduct doctrine may be applied to toll the limitations
period for a claim of intentional infliction of emotional distress. Watts v.
Chittenden, 301 Conn. 575, 587 (2011).
Notes
Liability for intentional infliction of emotional distress requires conduct
that exceeds “all bounds usually tolerated by decent society . . . .” Petyan v.
Ellis, 200 Conn. 243, 254 n.5 (1986). “Liability has been found only where
the conduct has been so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community. Generally, the
case is one in which the recitation of facts to an average member of the
community would arouse his resentment against the actor, and lead him to
exclaim, Outrageous.” Carrol v. Allstate Ins. Co., 262 Conn. 433, 443 (2003).
Thus, behavior “that merely is insulting or displays bad manners or results
in hurt feelings” does not give rise to a viable claim. Perez-Dickson v. City
of Bridgeport, 304 Conn. 483, 527 (2012). Of course, one man’s joke may
be another man’s insult; as long as “reasonable minds” could disagree on
whether a defendant’s conduct is the former or the latter, it is a question of
fact for a jury to decide. See id. Given this formulation, the Supreme Court
has suggested that inherently stressful professions make poor breeding
grounds for emotional distress claims. See Sepega v. Delaura, 326 Conn.
788, 800 n.6 (2017) (“[i]t is therefore doubtful that, under Connecticut law,
a policeman or firefighter would be able to present a claim for negligent or
intentional infliction of emotional distress”). Nor can mere cooperation
with a criminal investigation give rise to a claim of intentional infliction
of emotional distress. Parnoff v. Aquarion Water Co. of Conn., 188 Conn.
App. 153, 179 (2019). Without more, the failure to remedy a difficult
environment, at least where some effort is made to do so, is rarely, if ever, the
kind of behavior that can give rise to this type of claim. Strano v. Azzinaro,
188 Conn. App. 183, 192 (2019).

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 Intentional Infliction of Emotional Distress1I-11

A plaintiff may allege intentional and negligent infliction of emotional

distress based on the same conduct, but the two causes of action are
“mutually exclusive, such that establishing the elements of one precludes
liability on the other . . . intentional conduct and negligent conduct, although
differing only by a matter of degree . . . are separate and mutually exclusive.”
Meribear Prods., Inc. v. Frank, 328 Conn. 709, 721 (2018) (brackets omitted).
A claim for intentional infliction of emotional distress generally may not
be premised on conduct that constitutes protected speech under the first
amendment. Gleason v. Smolinski, 319 Conn. 394, 406 (2015). In order for
the protection to apply, the speech in question must be of public concern
and not of a purely private nature. Speech will not be protected, however,
even if it relates to a matter of public concern, if it is uttered merely to
harass, with no intent to persuade, inform or communicate. Id. at 421 (citing
State v. Carpenter, 171 P.3d 41, 59 (Alaska 2007)). Thus, a plaintiff making
an intentional infliction claim based on conduct that potentially constitutes
protected free speech should, in addition to the elements above, allege that
the speech was purely private in nature or, if of a public nature, was uttered
with no intent to persuade, inform or communicate. An intentional infliction
claim similarly cannot be based upon the conduct of an attorney during the
course of litigation, as that conduct is protected by the absolute immunity
of the litigation privilege. Simms v. Seaman, 308 Conn. 523, 570 (2013). Nor
can an arrest, if made on probable cause, give rise to a claim of intentional
infliction of emotional distress. Lamar v. Brevetti, 173 Conn. App. 284, 290
(2017) (citing Brooks v. Sweeney, 299 Conn. 196, 209 (2010)).
The “existence of an original duty is not necessary to apply the continuing
course of conduct doctrine to a claim for intentional infliction of emotional
distress.” Watts, 301 Conn. at 586. However, at least one additional act must
occur during the three-year limitations period for a plaintiff to recover—
under the continuing course of conduct doctrine—for the defendant’s prior
conduct. See id. at 596-97. In other words, if a defendant inflicts no further
emotional distress on a plaintiff during the three years that follow his prior
tortious conduct, then the slate is wiped clean, but only with respect to the
prior conduct.
Where family members make a claim for intentional infliction of emotional
distress against a hospital that terminated a patient’s life, but do not
allege that any of the hospital’s conduct was directed toward them, they
properly allege a claim for bystander emotional distress, not a direct claim
for intentional infliction of emotional distress. Marsala v. Yale-New Haven
Hosp., Inc., 166 Conn. App. 432, 453 (2016). See BYSTANDER EMOTIONAL
DISTRESS, supra.

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 1I-12 Intentional Interference with a Business Relationship

1I-12 INTENTIONAL INTERFERENCE WITH A BUSINESS

RELATIONSHIP
In order to prevail on a claim for intentional interference with a business
relationship, a plaintiff must prove the following elements:
1) A business relationship between the plaintiff and another party;
2) that the defendant intentionally interfered with that relationship
while knowing of the relationship’s existence; and
3) actual loss as a result of the defendant’s interference.
Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20, 27 (2000); Landmark
Inv. Grp., LLC v. CALCO Const. & Dev. Co., 318 Conn. 847, 873 (2015).
Statute of Limitations
The statute of limitations for a claim of intentional interference with a
business relationship is three years from the date of the act complained of.
Conn. Gen. Stat. § 52-577.
Notes
A business relationship involves prospective profits. Villages, LLC v.
Longhi, 187 Conn. App. 132, 148 (2019). In order to satisfy the first element,
the plaintiff must show that the defendant interfered with a contractual
relationship or a relationship involving the reasonable probability that it
would have entered into a contract or made a profit. Id.
Courts sometimes refer to this cause of action as “tortious interference with
business expectancies.” Hi-Ho Tower, Inc. v. Com-Tronics, Inc., 255 Conn. 20,
27 (2000). The elements are the same, however, regardless of the label. If a
plaintiff claims lost profits as a result of the defendant’s alleged interference,
the plaintiff must prove the amount of damages with reasonable certainty.
The amount of profit the tortfeasor made from the endeavor, for example,
will not necessarily establish the amount of lost profits by the plaintiff.
American Diamond Exch., Inc. v. Alpert, 302 Conn. 494 (2011). An “actual
loss” is synonymous with an “ascertainable loss” under CUTPA, which has
“a broader meaning than the term damage, and has been held synonymous
with deprivation, detriment and injury . . . . A loss is ascertainable if it is
measurable, even though the precise amount of the loss is not known.”
Wellswood Columbia, LLC v. Town of Hebron, 327 Conn. 53, 83-84 (2017)
(ellipsis in original) (applying CUTPA definition of “loss” to claim for
interference with business expectancies).
This cause of action is not available against Native American tribes, as it is
barred by tribal sovereign immunity. Drabik v. Thomas, 184 Conn. App. 238
(2018).

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 Intentional Interference with a Contractual Relationship1I-13

1I-13 INTENTIONAL INTERFERENCE WITH

A CONTRACTUAL RELATIONSHIP
The elements of intentional interference with a contract are:
1) The existence of a contractual or beneficial relationship;
2) the defendants’ knowledge of that relationship;
3) the defendants’ intentional interference with the relationship;
4) the interference was tortious; and
5) a loss suffered by the plaintiff that was caused by the defendants’
tortious conduct.
Appleton v. Bd. of Educ. of the Town of Stonington, 254 Conn. 205, 212-13
(2000). See Blakeman v. Knollbrook Condo. Ass’n, Inc., 2018 WL 5884525
(Conn. Super. Ct. Oct. 19, 2018).
Statute of Limitations
Three years from the date of the act complained of. Conn. Gen. Stat. § 52-577.
The limitations period may be tolled under the continuing course of conduct
doctrine. PMG Land Assocs., L.P. v. Harbour Landing Condo. Ass’n, Inc., 172
Conn. App. 688, 695 (2017) (though the court in that case found that tolling
had not been proved).
Notes
An action for tortious “interference with contractual relations only lies
when a third party adversely affects the contractual relations of two other
parties . . . . There can be no intentional interference with contractual
relations by someone who is directly or indirectly a party to the contract.”
Metcoff v. Lebovics, 123 Conn. App. 512, 520 (2010) (emphasis in original;
citation omitted). This includes an agent who interferes with the performance
of a contract to which its principal is a party “because to hold him liable
would be, in effect, to hold the [principal] liable for breaching its own
contract.” Id. at 520-21 (quoting Wellington Sys., Inc. v. Redding Grp., Inc., 49
Conn. App. 152, 168, cert. denied, 247 Conn. 905 (1998)).
A plaintiff must prove that the defendant’s conduct was in fact tortious.
Varley v. First Student, Inc., 158 Conn. App. 482, 506 (2015) (citing Daley v.
Aetna Life & Cas. Co., 249 Conn. 766, 805-06 (1999)). “This element may be
satisfied by proof that the defendant was guilty of fraud, misrepresentation,
intimidation or molestation . . . or that the defendant acted maliciously.”
1000 Silas Deane Highway v. Elite Beverage, Inc., 2001 WL 175645 (Conn.
Super. Ct. Feb. 8, 2001). The Supreme Court has acknowledged that the
cases have not focused with particularity on what acts of interference are
tortuous. Importantly, not every act that disturbs a contract or business

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 1I-14 Intentional Spoliation of Evidence

expectancy is actionable. A plaintiff can prove that the defendant’s conduct

was in fact tortuous by showing “that the defendant was guilty of fraud,
misrepresentation, intimidation or molestation . . . or that the defendant
acted maliciously.” Blake, 191 Conn. at 260-61. However, a defendant is
absolutely immune from liability for tortious interference for statements
made in the course of a judicial or quasi-judicial proceeding. See Rioux v.
Barry, 283 Conn. 338, 351 (2007). Finally, “[u]nlike other torts in which
liability gives rise to nominal damages even in the absence of proof of actual
loss . . . it is an essential element of the tort of unlawful interference with
business relations that the plaintiff suffers actual loss . . . resulting from the
improper interference with her contract.” Appleton, 254 Conn. at 213 (first
ellipses in original; citation omitted).
Courts have described causes of action for negligent interference with
contractual relations and intentional interference with business relations.
Often, the terms “contractual relations” and “business relations” are
seemingly used interchangeably. Note, however, that at least one trial court
has suggested that an independent action for intentional interference with
contractual relations does not exist under Connecticut law. In either instance,
an “improper motive or improper means” on the part of the defendant is a
required element of the cause of action. See Metcoff v. Lebovics, 123 Conn.
App. 512, 520 (2010).
Given the Supreme Court’s application of the ministerial exception to
subject matter jurisdiction for certain employment-related claims against the
Archdiocese of Hartford in Dayner v. Archdiocese of Hartford, 301 Conn. 759
(2011), it is likely that an employment-based claim for intentional interference
with contract against a church or other religious organization would be
barred. But see Trinity Christian Sch. v. CHRO, 2016 WL 5339514 (Conn.
Super. Ct. Aug. 22, 2016) (suggesting Dayner may be undermined by the
subsequent decision of the United States Supreme Court in Hosanna-Tabor
Evangelical Lutheran Church & School v. EEOC, 132 S. Ct. 694 (2012)).

1I-14 INTENTIONAL SPOLIATION OF EVIDENCE

The elements of a cause of action for intentional spoliation of evidence are:
1) Knowledge of a pending or impending civil action involving the
plaintiff;
2) destruction of evidence relevant to that action that is;
3) in bad faith, that is, done with the intent to deprive the plaintiff
of his cause of action;

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 Interference with an Easement1I-15

4) an inability to establish the elements of that cause of action in

the absence of the spoliated evidence; and
5) damages.
Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 244-45 (2006).
Statute of Limitations
Three years from the date of the act complained of. Conn. Gen. Stat. § 52-577.
Notes
Rizzuto was the first Connecticut decision to recognize a separate cause of
action for intentional spoliation of evidence. It borrows liberally from the
numerous out-of-state decisions that previously had recognized such a cause
of action, Rizzuto, 280 Conn. at 234-51, but does not adopt any one state’s
law wholesale. (Prior to Rizzuto, Connecticut recognized that the trier of fact
in a civil action could draw an inference from the intentional spoliation of
evidence that the destroyed evidence would be unfavorable to the party that
destroyed it. Beers v. Bayliner Marine Corp., 236 Conn. 769, 775 (1996)).
Under the Rizzuto formulation, once a plaintiff satisfies his burden to
prove that the defendant’s “intentional, bad faith destruction of evidence
rendered the plaintiff unable to establish a prima facie case in the underlying
litigation . . . there arises a rebuttable presumption that but for the fact of
the spoliation of evidence the plaintiff would have recovered in the pending
or potential litigation . . . .” Rizzuto, 280 Conn. at 246-47. However, the
defendant “may rebut this presumption by producing evidence showing that
the plaintiff would not have prevailed in the underlying action even if the
lost or destroyed evidence had been available.” Id. at 248. The measure of
damages in a spoliation action is “the full amount of compensatory damages
that he or she would have received if the underlying action had been pursued
successfully.” Id.

1I-15 INTERFERENCE WITH AN EASEMENT

To prevail on a claim for interference with an easement, the plaintiff must
prove that:
1) The owner of the servient estate;
2) has engaged in conduct that results in an unreasonable
impairment to the easement rights of the dominant estate.
See Kelly v. Ivler, 187 Conn. 31, 45 (1982), Weston Street Hartford, LLC v.
Zebra Realty, LLC, 193 Conn. App. 542 (2019).

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 1I-16 Interference with Expected Inheritance

Statute of Limitations
Three years from the date of the act complained of. See Conn. Gen. Stat.
§ 52-577.
Notes
The right to “prevent obstruction or interference” with the use of an easement
is an equitable one. Crescent Beach Ass’n v. Town of East Lyme, 170 Conn.
66, 70 (1976). As a result, in many cases, a claim of interference with an
easement will entitle the plaintiff to injunctive relief. See, e.g., Wambeck v.
Lovetri, 141 Conn. 558, 564 (1954). Normally, the existence of vegetation on
an easement, both cultivated and natural, will not constitute interference with
the easement. Smith v. Muellner, 283 Conn. 510, 525 (2007) (citations omitted).
Likewise, Connecticut law does not recognize a cause of action “based upon
any alleged interference with a plaintiff’s easement of light, air, or scenic
vistas.” Schiavone v. Urban, 2012 WL 1624031, at *5 (Conn. Super. Ct. Apr. 12,
2012).

1I-16 INTERFERENCE WITH EXPECTED INHERITANCE

To prevail on a claim for interference with an expected inheritance, a plaintiff
must plead and prove:
1) the existence of an expected inheritance;
2) the defendant’s knowledge of the expectancy;
3) intentional, tortious conduct by the defendant that prevents
another from receiving an inheritance she otherwise would have
received; and
4) actual damages to the plaintiff resulting from the defendant’s
tortious conduct.
Hart v. Hart, 2015 WL 3555366, at *12 (Conn. Super. Ct. May 11, 2015);
Restatement (Second), Torts § 774B.
Statute of Limitations
Three years from the date of the act complained of. Conn. Gen. Stat. § 52-577.
Notes
For a general discussion see Vaicunas v. Gaylord, 196 Conn. App. 785 (2020).
Trial court decisions have been split on whether the action is valid, but the
better reasoned and more thorough discussion supports its existence within
the body of Connecticut law. See Judge Calmar’s thorough and well-reasoned
opinion in Hart v. Hart, 2015 WL 3555366 (Conn. Super. Ct. May 11, 2015)
for a comprehensive discussion of the elements of the cause of action and the

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 Invasion of Privacy1I-17

arguments for and against it. See also Restatement (Second), Torts § 774B, for
a discussion of the cause of action as applied in other jurisdictions.

1I-17 INVASION OF PRIVACY

The Connecticut Supreme Court has recognized that “the law of privacy
has not developed as a single tort, but as a complex of four distinct kinds of
invasion of four different interests of the plaintiff, which are tied together by
the common name, but otherwise have almost nothing in common except
that each represents an interference with the right of the plaintiff to be let
alone.” Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107,
127-28 (1982) (citation omitted). See Parnoff v. Aquarion Water Co. of Conn.,
188 Conn. App. 153, 172-73 (2019).
The four categories of invasion of privacy are set forth in 3 Restatement
(Second), Torts § 652A [1977] as follows:
a) Unreasonable intrusion upon the seclusion of another.
b) Appropriation of another’s name or likeness.
c) Unreasonable publicity given to another’s private life.
d) Publicity that unreasonably places another in a false light before
the public.
Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 128 (1982);
see Foncello v. Amorossi, 284 Conn. 225, 234 (2007).
The Connecticut courts that have addressed these various types of claims for
invasion of privacy generally have applied the Restatement (Second) criteria
in determining the elements of those claims. The Restatement elements for
each claim are as follows:
1) Unreasonable intrusion upon the seclusion of another
“One who intentionally intrudes, physically or otherwise, upon
the solitude or seclusion of another or his private affairs or
concerns, is subject to liability to the other for invasion of his
privacy, if the intrusion would be highly offensive to a reasonable
person.”
3 Restatement (Second), Torts § 652B. Parnoff v. Aquarion Water
Co. of Conn., 188 Conn. App. 153, 172-73 (2019). See Bonanno v.
Dan Perkins Chevrolet, 26 Conn. L. Rptr. 368 (Feb. 4, 2000)
(Nadeau, J.); Kindschi v. City of Meriden, 2006 WL 3755299
(Conn. Super. Ct. Nov. 28, 2006).

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 1I-17 Invasion of Privacy

2) Appropriation of another’s name or likeness

“One who appropriates to his own use or benefit the name or
likeness of another is subject to liability to the other for invasion
of his privacy.”
3 Restatement (Second), Torts § 652C. See Venturi v. Savitt, Inc.,
191 Conn. 588, 592 (1983).
3) Unreasonable publicity given to another’s private life
“One who gives publicity to a matter concerning the private
life of another is subject to liability to the other for invasion of
his privacy, if the matter publicized is of a kind that (a) would
be highly offensive to a reasonable person, and (b) is not of
legitimate concern to the public.”
3 Restatement (Second), Torts § 652D.
4) Publicity that unreasonably places another in a false light before
the public.
One who gives publicity to a matter concerning another that
places the other before the public in a false light is subject to
liability to the other for invasion of his privacy, if:
(a) The false light in which the other was placed would be
highly offensive to a reasonable person; and
(b) the actor had knowledge of or acted in reckless disregard as
to the falsity of the publicized matter and the false light in
which the other would be placed.
3 Restatement (Second), Torts § 652E. See Goodrich v. Waterbury Republican-
American, Inc., 188 Conn. 107, 131 (1982).
Statute of Limitations
Three years from the date of the act complained of. Conn. Gen. Stat. § 52-577.
See Daoust v. McWilliams, 49 Conn. App. 715, 720 (1998).
Notes
“Privacy actions involve injuries to emotions and mental suffering, while
defamation actions involve injury to reputation.” Davidson v. City of
Bridgeport, 180 Conn. App. 18, 29 (2018). The Connecticut Supreme Court
approved the Restatement’s definition of the cause of action for giving
unreasonable publicity to another’s private life in Perkins v. Freedom of Info.
Comm’n, 228 Conn. 158, 170-72 (1993). The disclosure of private information
must be “highly offensive to a reasonable person” and “not of legitimate
concern to the public.” Pane v. City of Danbury, 267 Conn. 669, 676-77, (2004),
rev’d on other grounds, 294 Conn. 324 (2009). However, “there is no liability

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 Inverse Condemnation1I-18

when the defendant merely gives further publicity to information about the
plaintiff that is already public. Thus, there is no liability for giving publicity
to facts about the plaintiff’s life that are matters of public record.” Doe v.
Town of Madison, 2011 WL 3278530, at *4 (Conn. Super. Ct. July 6, 2011).
“The essence of a false light privacy claim is that the matter published
concerning the plaintiff (1) is not true; . . . and (2) is such a major
misrepresentation of his character, history, activities or beliefs that serious
offense may reasonably be expected to be taken by a reasonable man in his
position.” Jonap v. Silver, 1 Conn. App. 550, 557-58 (1984) (citations omitted;
internal quotation marks omitted).
The Supreme Court has held that the Health Insurance Portability and
Accountability Act of 1996 (HIPAA), 42 U.S.C. §§ 1320d, et seq., does
not preempt a state law cause of action against a medical provider for
negligently disclosing a patient’s medical information. Byrne v. Avery Ctr. for
Obstetrics & Gynecology, P.C., 314 Conn. 433, 435 (2014). For a discussion of
the immunity from invasion of privacy claims provided to website operators
by the federal Communications Decency Act of 1996 (CDA), 47 U.S.C. §§ 230,
et seq., see Vazquez v. Buhl, 150 Conn. App. 117, 120 (2014).

1I-18 INVERSE CONDEMNATION

A cause of action for inverse condemnation requires proof of the following
elements:
1) A government regulation or order;
2) that permanently restricts the plaintiff’s use of his property for
any reasonable purpose; or
3) impermissibly infringes on the owner’s reasonable investment-
backed expectations for the use and enjoyment of his property.
Rural Water Co., Inc. v. Zoning Bd. of Appeals of Ridgefield, 287 Conn. 282,
298-99 (2008).
Statute of Limitations
Three years from the date of accrual of the condemnation action. Conn. Gen.
Stat. § 52-577; see LeStrange v. Town of Oxford, 1997 WL 707106, at *2 (Conn.
Super. Ct. Nov. 4, 1997). An inverse condemnation claim accrues “when the
regulatory action that is alleged to have effectuated a taking becomes final[,]”
Wellswood Columbia, LLC v. Town of Hebron, 327 Conn. 53, 69 (2017), even if
the property owner does not know the extent of his damages, or whether the
taking is temporary or permanent. Id. (citing Chapman Lumber, Inc. v. Tager,
288 Conn. 69 (2008)).

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 1I-18 Inverse Condemnation

Notes
“[A]n inverse condemnation action has been aptly described as an eminent
domain proceeding initiated by the property owner rather than the
condemnor.” Barton v. City of Norwalk, 326 Conn. 139, 147 (2017). As a
general matter, a claim for inverse condemnation arises “when the purpose of
government regulation and its economic effect on the property owner render
the regulation substantially equivalent to an eminent domain proceeding.”
Rural Water, 287 Conn. at 298. “Thus, an inverse condemnation occurs when
either: (1) application of the regulation amounted to a practical confiscation
because the property cannot be used for any reasonable purpose; or (2) under
a balancing test, the regulation’s application impermissibly has infringed
upon the owner’s reasonable investment-backed expectations of use and
enjoyment of the property so as to constitute a taking.” Id. at 299. In short,
because “[t]he word taken in article first, § 11 of our state constitution means
the exclusion of the owner from his private use and possession . . . inverse
condemnation requires total destruction of a property’s economic value or
substantial destruction of an owner’s ability to use or enjoy the property.”
Barton, 326 Conn. at 147. Under the latter prong, “the determination of
whether a taking has occurred must be made on the facts of each case with
consideration being given not only to the degree of diminution in the value
of the land but also to the nature and degree of public harm to be prevented
and to the alternatives available to the landowner.” Chevron Oil Co. v. Zoning
Bd. of Appeals¸ 170 Conn. 146 (1976). Reasonable expectations must, of
course, be reasonable to be compensable. See Santos v. Zoning Bd. of Appeals
of Stratford, 174 Conn. App. 531, 535, cert. denied, 327 Conn. 926 (2017)
(parties’ agreement that regulatory obstacle to building house was “readily
correctible” made plaintiff’s claim “that a reasonable investment-backed
expectation had been thwarted . . . obviously untenable”).
Despite the “any reasonable use” language typically associated with this
cause of action, the Supreme Court has clarified that “[t]he tests for undue
hardship and inverse condemnation are one in the same.” Mayer-Wittmann v.
Zoning Bd. of Appeals, 333 Conn. 624, 642 (2019). “Just as a landowner has
a constitutionally protected right to use his property for some reasonable
purpose, . . . a landowner has a constitutionally protected property right
to the continued use of an existing, legally nonconforming building.” Id.
at 642-43 (internal citations omitted). “Accordingly, the deprivation of
that right by regulation would also constitute an inverse condemnation,
notwithstanding the fact that the landowner could still use the property for
some other permitted or legally nonconforming purpose.” Id.
Note that the “condemnation” of a dilapidated building by city officials will
not necessarily constitute an “inverse condemnation” (i.e., a taking). Courts

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 Landlord/Tenant—Premises Liability1L-1

have recognized that the police power must be distinguished from the power
of eminent domain; the former being exercised in the interests of public
safety and requiring no compensation, and the latter requiring both a public
use and compensation. Thus, in Edgewood St. Garden Apartments, LLC v.
City of Hartford, 163 Conn. App. 219, 237, cert. denied, 321 Conn. 903 (2016),
the Appellate Court affirmed a trial court’s decision that the city’s order
requiring that the plaintiff’s building be demolished for safety reasons did not
amount to an inverse condemnation, since the evidence did not establish the
requisite destruction of the property’s value.
An administrative appeal is not a prerequisite for bringing an inverse
condemnation action because the former “serves the remedial purpose of
reviewing the propriety” of a zoning decision, while the latter is concerned
only with whether a compensable regulatory taking has occurred. Miller v.
Town of Westport, 268 Conn. 207, 216 (2004). However, a property owner
must establish the finality of the administrative determination alleged to
constitute an inverse condemnation prior to bringing suit. Hayes Family
Ltd. P’ship v. Town of Glastonbury, 166 Conn. App. 585, 590 (2016);
A&F Constr. Co., Inc. v. Zoning Bd. of Appeals of West Haven, 60 Conn.
App. 273, 279 (2000). In addition, if a property owner knows enough to
sue for injunctive relief, he likely knows enough to sue for damages, too;
the limitations clock on the latter typically tics in time with the former.
Wellswood, 327 Conn. at 69-71.
Whether private property has been taken by inverse condemnation is a
question of law subject to plenary review on appeal. City of Bristol v. Tilcon
Minerals, Inc., 284 Conn. 55, 83 (2007) (citing Textron, Inc. v. Wood, 167
Conn. 334, 345 (1974)).

1L-1 LANDLORD/TENANT—PREMISES LIABILITY

A landlord has “a duty to maintain the common areas of an apartment
building in a reasonably safe condition for the benefit of the tenants who
reside in the building.” Ruiz v. Victory Props., LLC, 315 Conn. 320, 329
(2015). This duty encompasses any parts of the property over which a
landlord retains control. See id.; LaFlamme v. Dallessio, 261 Conn. 247, 256
(2002). A tenant may hold a landlord liable for failing “to take reasonable
measures to ensure that the space over which it exercises dominion is safe
from dangers . . . .” Ruiz, 315 Conn. at 330 (quoting Giacalone v. Hous. Auth.
of the Town of Wallingford, 306 Conn. 399, 408 (2012)).
Statute of Limitations
Two years from the date the injury is first sustained or discovered or in the
exercise of reasonable care should have been discovered, and in no event more

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 1L-2 Landowner Liability for Injuries on Property

than three years from the date of the act complained of. Conn. Gen. Stat.
§ 52-584.
Notes
A plaintiff sufficiently pleads a cause of action against a landlord for premises
liability if he alleges a landlord/tenant relationship and the failure to keep the
premises under the landlord’s control in a safe condition. See Giacalone, 306
Conn. at 408-09 (affirming Appellate Court’s reversal of striking of plaintiff’s
complaint). This is so even if a plaintiff is imprecise about the exact location
where she was injured; see id. (“at or near” defendant’s property); or does
not specifically allege that the landlord had exclusive possession or control
of that precise portion of the property. See Stein v. Tong, 117 Conn. App. 19,
27-28 (2009). However, a landlord generally is not liable for harm that occurs
on abutting property, e.g., a public sidewalk near his building. See Stokes v.
Lyddy, 75 Conn. App. 252, 260 (2003) (no liability for tenant’s dog that bit
passerby on sidewalk near apartment building because landlord’s “duty does
not, however, extend to uncontrolled land such as neighboring property or
public lands”).

1L-2 LANDOWNER LIABILITY FOR INJURIES ON

PROPERTY
To prevail in a cause of action against a landowner for injuries sustained on
that landowner’s property, a plaintiff must prove:
IF THE PLAINTIFF IS A TRESSPASSER:
1) The landowner was aware of the trespasser’s presence, or aware
that the presence of trespassers was to be expected;
and
2) the landowner failed to take reasonable care or implement
reasonable precautions to avoid injury to the trespasser.
See McPheters v. Loomis, 125 Conn. 526, 531 (1939); Maffucci v. Royal Park
Ltd. P’ship, 243 Conn. 552, 559 (1998).
IF THE PLAINTIFF IS AN INVITEE:
1) The landowner failed to reasonably inspect and maintain the
premises to make them reasonably safe; or
2) the landowner failed to warn of dangers that the plaintiff could
not reasonably be expected to discover; and
3) that the landowner had actual or constructive notice of the
specific danger that was the proximate cause of the plaintiff’s
injuries.

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 Landowner Liability for Injuries on Property1L-2

See Gargano v. Azpiri, 110 Conn. App. 502, 508 (2008).

IF THE PLAINTIFF IS A LICENSEE:
1) The landowner engaged in some active operation on his land;
2) in a negligent manner; and
3) that negligent operation was the proximate cause of the
plaintiff’s injuries.
See Morin v. Bell Court Condo. Ass’n, 223 Conn. 323, 327-28 (1992).
Statute of Limitations
The statute of limitations for an action against a landowner for injuries
sustained on that landowner’s property is two years from the date the injury
is first sustained or discovered or in the exercise of reasonable care should
have been discovered, and in no event more than three years from the date of
the act complained of. Conn. Gen. Stat. § 52-584.
Notes
Generally, “there is an ascending degree of duty owed by the possessor of
land to persons on the land based on their entrant status, i.e., trespasser,
licensee or invitee.” Morin v. Bell Court Condo. Ass’n, 223 Conn. 323, 327
(1992). The principal distinction between invitees and licensees “turns largely
on whether the visitor has received an invitation, as opposed to permission,
from the possessor of the land, to enter the land or remain on the land.”
Gargano, 110 Conn. App. at 506. Sometimes, though, an invitation is in the
eye of the beholder: Under the “misled invitee” doctrine, “if an area appears
to a reasonable traveler to be a safe public highway, the person who created
that misleading impression should assume the risk of injury rather than the
innocent traveler.” Lin v. Nat’l Railroad Passenger Corp., 277 Conn. 1, 9 (2006).
However, the traveler must have been “lured or misled by the appearance that
he was traveling on a highway, and was not on private property.” Stovall v.
Holzner, 2013 WL 2132118, at *2 (Conn. Super. Ct. Apr. 26, 2013).
For licensees, a landowner generally has no duty “to keep the property in a
reasonably safe condition, because the licensee must take the premises as he
finds them.” Morin v. Bell Court Condo. Ass’n, 223 Conn. 323, 327 (1992). A
licensee’s only complaint is if some negligent activity on the property harms
him. Id. For invitees, however, a landowner has the obligation to keep the
land/premises itself reasonably safe from dangerous defects and is charged
with constructive notice of defects. See Kurti v. Becker, 54 Conn. App. 335,
338, cert. denied, 251 Conn. 909 (1999). In addition, there are two classes of
invitees—public and business. “Invitees fall into certain general categories.
A public invitee is a person who is invited to enter or remain on land as a
member of the public for a purpose for which the land is held open to the

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 1L-2 Landowner Liability for Injuries on Property

public . . . . A business invitee is a person who is invited to enter or remain

on land for a purpose directly or indirectly connected with business dealings
with the possessor of the land.” Id. In general, a landowner owes no duty
of care whatsoever to a trespasser. See Lin, 277 Conn. at 19; McPheters v.
Loomis, 125 Conn. 526, 531 (1939). However, once a landowner becomes
aware of the presence of a trespasser on his land, the landowner must exercise
ordinary, reasonable care to avoid injuring the trespasser. See id. Further, if a
landowner “knows that the presence of trespassers is to be expected, then the
common obligation of exercising reasonable care gives rise to the correlative
duty of taking such precautions against injuring trespassers as a reasonable
foresight of harm ought to suggest.” Maffucci v. Royal Park Ltd. P’ship, 243
Conn. 552, 559 (1998).
In Kelly v. Stop & Shop, Inc., 281 Conn. 768 (2007), the Supreme Court
adopted the “mode of operation” rule for certain self-service commercial
establishments. Under that rule, a plaintiff invitee does not have to prove
notice of the defect at issue if a store’s “self service mode of operation
business gave rise to a foreseeable risk of injury to customers and that the
plaintiff’s injury was proximately caused by an accident within the zone of
risk.” Kelly v. Stop & Shop, Inc., 281 Conn. 768, 810 (2007). However, in 2010,
the Supreme Court limited the mode of operation rule to “those accidents
that result from particular hazards that occur regularly, or are inherently
foreseeable, due to some specific method of operation employed on the
premises[,]” and excluded from the rule “accidents caused by transitory
hazards in self-service retail establishments . . . .” Fisher v. Big Y Foods, Inc.,
298 Conn. 414, 423 (2010). Fisher, which involved a slip-and-fall on a puddle
of fruit cocktail syrup at a supermarket, fell into the “transitory hazards”
category because the plaintiff established only that the defendant was
a general self-service establishment, not that some specific aspect of its
operating procedure caused the spill. Id. at 440-41. The mode of operation
rule does not apply only to self-service establishments because “[t]he
dispositive issue is not the presence of self-service, but whether the operating
methods of a proprietor are such that dangerous conditions are continuous
or easily foreseeable.” Konesky v. Post Rd. Entm’t, 144 Conn. App. 128, 140,
cert. denied, 310 Conn. 915 (2013) (applying rule to nightclub, but reversing
jury verdict for plaintiff based solely on service of beer to patrons from ice-
filled tub propped on audio speaker).
Although liability for dog bite claims traditionally has been limited to the
owner or keeper of the dog, under common law theories of premises liability
based on the foreseeability of harm, a landlord may be liable for injuries
caused to a tenant by a dangerous dog kept by another tenant—even where
the landlord has no involvement in the everyday care and keeping of the dog.

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 Legal Malpractice (Tort)1L-3

Giacalone v. Hous. Auth. of the Town of Wallingford, 306 Conn. 399, 403 (2012)
(citing Auster v. Norwalk United Methodist Church, 286 Conn. 152, 165 (2008)).

1L-3 LEGAL MALPRACTICE (TORT)

To prevail on a claim of legal malpractice sounding in tort, a plaintiff must
establish the following elements:
1) The existence of an attorney-client relationship;
2) the requisite standard of professional care;
3) the attorney’s wrongful act or omission;
4) causation; and
5) damages flowing from the wrongful act or omission.
Dixon v. Bromson & Reiner, 95 Conn. App. 294, 297 (2006).
Statute of Limitations
The statute of limitations for a legal malpractice claim sounding in tort
is three years from the date of the alleged malpractice. Conn. Gen. Stat.
§ 52-577; see Pelletier v. Galske, 105 Conn. App. 77, 83 (2007). However, the
limitations period may be tolled under the “continuous representation”
doctrine, if the plaintiff can establish: “(1) that the defendant continued to
represent him with regard to the same underlying matter; and (2) either that
the plaintiff did not know of the alleged malpractice or that the attorney
could still mitigate the harm allegedly caused by that malpractice during the
continued representation period.” DeLeo v. Nusbaum, 263 Conn. 588, 597
(2003). However, the filing of an in lieu of appearance by successor counsel
“preclud[es] the tolling of the statute of limitations through the doctrine of
continuous representation after that date.” Manzo-Ill v. Schoonmaker, 188
Conn. App. 343, 362, cert. denied, 331 Conn. 925 (2019).
Notes
Generally, to prevail on a legal malpractice claim, “a plaintiff must present
expert testimony to establish the standard of proper professional skill or
care . . . . Not only must the plaintiffs establish the standard of care, but they
must also establish that the defendant’s conduct legally caused the injury of
which they complaint.” Moore v. Crone, 114 Conn. App. 443, 446-47 (2009)
(citing DiStefano v. Milardo, 82 Conn. App. 838, 842 (2004), aff ’d, 276 Conn.
416 (2005)). There is a narrow exception for cases in which “there is present
such an obvious and gross want of care and skill that the neglect to meet the
standard of care is clear even to a lay person.” Moore v. Crone, 114 Conn.
App. 443, 447 (2009) (internal quotation and citation omitted) (the so-called
“gross negligence” exception). It is possible (though perhaps not advisable) to

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 1L-3 Legal Malpractice (Tort)

prove the standard of care and a breach thereof through the testimony of the
defendant attorney. See O’Connell, Flaherty & Attmore, LLC v. Richter, 130
Conn. App. 816, 822-23 (2011) (testimony of attorney accused of malpractice
constituted expert opinion on standard of care, but testimony failed to
establish breach of standard of care). In addition, a jury must hear expert
testimony “of the standard of care itself[,]” not merely that the defendant
attorney breached that standard. Jing Hong Song v. Collins, 152 Conn.
App. 373, 379 (2014) (affirming judgment for defendant because no “expert
witness expressly testified as to what an average prudent attorney would have
done under the circumstances”).
Except for those rare instances of gross negligence, “expert testimony also
is a general requirement for establishing the element of causation in legal
malpractice cases.” Bozelko v. Papastavros, 323 Conn. 275, 285 (2016). The
usual method of proving causation is the so-called “case-within-a-case[,]”
i.e., “evidence of what would have happened in the underlying action had the
defendant not been negligent.” Baruno v. Slane, 151 Conn. App. 386, 396, cert.
denied, 314 Conn. 920 (2014). See Kuehl v. Koskoff, 182 Conn. App. 505 (2018)
(judgment for the plaintiff reversed on appeal because the plaintiff failed to
present expert testimony to demonstrate that she would have prevailed in the
underlying action).
In general, “attorneys are not liable to persons other than their clients for
the negligent rendering of services.” Goodyear v. Discala, 269 Conn. 507, 517
(2004). It would invade the sanctity of the attorney-client relationship and
undermine the ethical obligation of zealous advocacy to hold an attorney
liable for malpractice to someone other than his client. See Stone v. Pattis,
144 Conn. App. 79, 90-91 (2013) (granting motion to strike non-client’s
complaint).
Legal malpractice is a tort if a plaintiff alleges that his attorney performed
the tasks for which the plaintiff hired him, but did so “in a deficient manner.”
Meyers v. Livingston, Adler, Pulda, Meiklejohn & Kelly, P.C., 311 Conn. 282,
294 (2014). If, however, a plaintiff claims that “the defendant attorney violated
[his] specific instructions[,]” or the specific tasks set forth in the retainer
agreement, then the suit is for breach of contract. See id. at 292-93. The
distinction is significant with respect to the limitations period. See id. at 301
(plaintiff’s claims barred by three-year tort statute of limitations). Though
a court will not “wade through a poorly drafted complaint to glean from it
the plaintiff’s theories of relief[,]” Costello & McCormack, P.C. v. Manero,
194 Conn. App. 417, 428 (2019), not calling a spade a spade does not make it
a shovel. See id. (two paragraph complaint alleging only that “[a]ttorney[s]”
were “willfully derelict in their representation . . . [and] failed to abide by

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 Loss of Consortium1L-5

their clients’ lawful requests . . . can only be construed as ones advancing

claims of legal malpractice”).
A disgruntled client who files a grievance against her attorney, and who
is dissatisfied with the dismissal of that grievance, does not have a cause
of action for a mandamus or injunction requiring the grievance panel to
revoke its dismissal. D’Attilo v. Statewide Grievance Comm., 329 Conn. 624
(2018) (holding that the disgruntled client is neither statutorily nor classically
aggrieved and thus has no standing to seek a trial court order directed to the
grievance panel).

1L-4 LIBEL
See DEFAMATION, supra.

1L-5 LOSS OF CONSORTIUM

A claim for loss of spousal consortium is derivative and dependent for its
viability on the existence of an underlying claim by the injured spouse.
Cavallaro v. Hosp. of Saint Raphael, 92 Conn. App. 59, 62 n.5 (2005). Under
Connecticut law, “[t]he term consortium is usually defined as encompassing
the services of the [spouse], the financial support of the [spouse], and the
variety of intangible relations which exist between spouses living together in
marriage . . . These intangible elements are generally described in terms of
affection, society, companionship and sexual relations . . . These intangibles
have also been defined as the constellation of companionship, dependence,
reliance, affection, sharing and aid which are legally recognizable, protected
rights arising out of the civil contract of marriage.” Bebry v. Zanauskas, 81
Conn. App. 586, 592-93 (2004) (internal quotation marks omitted).
Statute of Limitations
The statute of limitations for a claim of loss of consortium will be the same as
the limitation period for the underlying claim. See Conn. Gen. Stat. § 52-555c
with respect to claims involving wrongful death.
Notes
Since it is derivative in nature, a loss of consortium claim is barred if
the injured spouse or child cannot succeed on the underlying claim. See
Graham v. Friedlander, 334 Conn. 564, 579 (2020) (parental consortium);
Jacoby v. Brinckerhoff, 250 Conn. 86, 91-92 (1999) (spousal consortium). In a
similar fashion, the settlement of the predicate claim for injury extinguishes a
loss of consortium claim. See Voris v. Molinaro, 302 Conn. 791, 792-93
(2011); Sanzone v. Bd. of Police Comm’rs, 219 Conn. 179, 199 (1991). The
spouse of an injured plaintiff has the right to bring a claim for loss of

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 1L-5 Loss of Consortium

consortium under Connecticut’s Product Liability Act. Lynn v. Haybuster

Mfg., Inc., 226 Conn. 282 (1993). Likewise, a spouse may recover for loss of
consortium arising from their spouse’s death; see Conn. Gen. Stat. § 52-555a;
though a child may not, see infra.
When a jury awards damages to the directly injured spouse and the spouse
claiming loss of consortium, the former is a “natural and meaningful
benchmark” for the reasonableness of the latter. Ashmore v. Hartford Hosp.,
331 Conn. 777, 798 (2019). Moreover, there is “a presumption that a direct
injury to one spouse is no less harmful, everything considered, than the
concomitant loss of consortium suffered by the deprived spouse[.]” Id. at 797.
A plaintiff may rebut this presumption with proof “that the marriage was an
unequal one, in which the deprived spouse relied more heavily on the support
of or derived far more satisfaction than the impaired spouse, or that the
impaired spouse somehow had less to lose.” Id. However, a reviewing court
will view such a disparity with a jaundiced eye. Id. at 798-99.
Connecticut recognizes a cause of action for loss of parental consortium.
See Campos v. Coleman, 319 Conn. 36 (2015) (overruling Mendillo v. Bd. of
Educ., 246 Conn. 456 (1998)). Campos breaks with precedent based on “the
unique emotional attachment between parents and children, the importance
of ensuring the continuity of the critically important services that parents
provide to their children, society’s interest in the continued development of
children as contributing members of society, and the public policies in favor
of compensating innocent parties and deterring wrongdoing . . . .” Campos,
319 Conn. at 43. Cognizant, perhaps, that those “compelling reasons” were
just as compelling when the Court decided Mendillo, Campos imposes five
“restrictions” on an action for loss of parental consortium: (1) the child
must join his claim with the parent’s “whenever possible”; (2) the trial court
must charge the jury that “only the child raising the claim” may recover
damages; (3) like spousal consortium, parental consortium does not survive
the settlement or adverse outcome of the parent’s claim; (4) only a child who
is a minor on the date of the parent’s injury may bring a claim; and (5) the
child may recover damages only for the loss of pecuniary services from the
date of the parent’s injury to the date the child turns 18. Id. at 58-60. Unlike
spousal consortium, loss of parental consortium does not include “damages
for postmortem loss . . . parental consortium claims are limited to claims
resulting from a parent’s injury during the parent’s life.” Id. at 59-60.
Sensibly, Superior Courts have sailed cautiously in Campos’s wake. See
Zamora-George v. Yale New Haven Hosp., Inc., 2020 WL 1656201, at *4
(Conn. Super. Ct. Feb. 21, 2020) (no cause of action for loss of filial
consortium); Christiano v. Conn. Light & Power Co., 2018 WL 1885651, at *5
(Conn. Super. Ct. Apr. 2, 2018) (striking loss of parental consortium claims

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 Malicious Prosecution1M-1

because “normal retroactivity of most civil decisions does not supersede the
operation of the statute of limitations so as to revive old claims which were
not pursued because of a prior contrary rule of law”).
In addition, a same-sex domestic partner may assert a loss of consortium
claim, even if unmarried “when the tortious conduct occurred,” if he or she
“would have been married if the marriage had not been barred by state law.”
Mueller v. Tepler, 312 Conn. 631, 649 (2014). Given that Connecticut legalized
same-sex marriage in 2008, the holding of Mueller is likely to affect a small
number of cases.

1M-1 MALICIOUS PROSECUTION

An action for malicious prosecution against a private person requires a
plaintiff to prove that:
1) The defendant initiated or procured the institution of criminal
proceedings against the plaintiff;
2) the criminal proceedings have terminated in favor of the
plaintiff;
3) the defendant acted without probable cause; and
4) the defendant acted with malice, primarily for a purpose other
than that of bringing an offender to justice.
McHale v. W.B.S. Corp., 187 Conn. 444, 447 (1982).
Statute of Limitations
If the plaintiff’s action for malicious prosecution is based on 42 U.S.C. § 1983,
three years from the date the underlying charges are dismissed, or otherwise
resolved favorably for the plaintiff. Conn. Gen. Stat. § 52-577; Lopes v. Farmer,
286 Conn. 384, 390 (2008). If the action is based solely on the common law, the
accrual date likely is the date when the malicious prosecution began, i.e., the
date when charges were filed. See generally Certain Underwriters at Lloyd’s,
London v. Cooperman, 289 Conn. 383, 408 (2008). As far as the authors are
aware, no Connecticut court has yet to address this dichotomy.
Notes
It is important to remember that the “distinction between malicious
prosecution or vexatious suit and abuse of process as tort actions is that in
the former the wrongful act is the commencement of an action without legal
justification, and in the latter it is in the subsequent proceedings, not in the
issue of process but in its abuse.” (Internal quotation marks omitted.) QSP,
Inc. v. Aetna Cas. & Sur. Co., 256 Conn. 343, 360 n.16 (2001); see also Lewis
Truck & Trailer, Inc. v. Jandreau, 11 Conn. App. 168, 170-71 (1987).

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 1M-2 Medical Negligence (Informed Consent)

So long as a private individual makes “a full and truthful disclosure” of

incriminating information and brings no “pressure of any kind to bear upon
the public officer’s decision to commence the prosecution[,]” that private
individual is immune from suit. Bhatia v. Debek, 287 Conn. 397, 407 (2008).
Likewise, the existence of probable cause is “absolute protection” against
a suit for malicious prosecution. In spite of the logical impossibility of
proving a negative, “the burden is upon the plaintiff to prove affirmatively,
by circumstances or otherwise, that the defendant had no reasonable ground
for instituting the criminal proceeding.” Id. at 410-11. Whether the allegedly
malicious action is criminal or civil, the sine qua non of probable cause “is
a bona fide belief in the existence of the facts essential under the law for the
action and such as would warrant a person of ordinary caution, prudence
and judgment, under the circumstances, in entertaining it.” Byrne v. Burke,
112 Conn. App. 262, 274, cert. denied, 290 Conn. 923 (2009). However, “belief
alone, no matter how sincere it may be, is not enough, since it must be based
on circumstances which make it reasonable.” Dubinsky v. Black, 185 Conn.
App. 53, 61 (2018).

1M-2 MEDICAL NEGLIGENCE (INFORMED CONSENT)

An action for lack of informed consent requires the plaintiff to prove that a
physician:
1) Failed to obtain any consent to the particular treatment,
2) performed a different procedure from the one for which consent
has been given, or
3) realized that the patient does not understand what the procedure
entails but performed it anyway.
Logan v. Greenwich Hosp. Ass’n, 191 Conn. 282, 288-89 (1983).
Statute of Limitations
Two years from the date the injury is first sustained or discovered or in the
exercise of reasonable care should have been discovered, and in no event more
than three years from the date of the act complained of. Conn. Gen. Stat.
§ 52-584.
Notes
“The informed consent doctrine derives from the principle that [e]very
human being of adult years and sound mind has a right to determine what
shall be done with his own body; and a surgeon who performs an operation
without his patient’s consent, commits an assault, for which he is liable in
damages.” Sherwood v. Danbury Hosp., 278 Conn. 163, 180 (2006) (internal
quotation marks omitted). “In Connecticut, lack of informed consent

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 Medical Negligence (Informed Consent)1M-2

is a cause of action based on medical negligence, as distinguished from

medical malpractice.” Amica Mut. Ins. Co. v. Levine, 192 Conn. App. 620,
630, cert. denied, 333 Conn. 935 (2019) (hence the overdue change to the
title for this entry). Thus, “unlike a medical malpractice claim, a claim for
lack of informed consent is determined by a lay standard of materiality,
rather than an expert medical standard of care which guides the trier of
fact in its determination.” Shortell v. Cavanagh, 300 Conn. 383, 388 (2011).
Under this standard, “a physician is obligated ‘to provide the patient with
that information which a reasonable patient would have found material
for making a decision whether to embark upon a contemplated course of
therapy.’” Lambert v. Stovell, 205 Conn. 1, 5 n.3 (1987) (citation omitted).
Whether a physician has obtained a valid informed consent turns on four
factors:
1) The nature of the procedure;
2) the risks and hazards of the procedure;
3) the alternatives to the procedure; and
4) the anticipated benefits of the procedure.
Janusauskas v. Fichman, 264 Conn. 796, 810 n.12 (2003) (internal quotation
marks omitted). The standard of disclosure for informed consent is an
objective standard that does not vary from patient to patient based on
what the patient asks or what the patient would do with the information if
it were disclosed. Logan, 191 Conn. at 292-93. Moreover, informed consent
“require[s] something less than a full disclosure of all information which may
have some bearing, however remote, upon the patient’s decision.” Pedersen v.
Vahidy, 209 Conn. 510, 522 (1989). The consent necessary to preclude a claim
for assault and battery is different from the consent at issue on a claim of
lack of informed consent, where the issue is whether a sufficient disclosure
was made. Godwin v. Danbury Eye Physicians & Surgeons, P.C., 254 Conn.
131, 137 n.3 (2000). In addition, whether a patient was informed of the
risks of a procedure is irrelevant in a medical malpractice action where
the plaintiff has not alleged lack of informed consent. Hayes v. Camel, 283
Conn. 475, 485-88 (2007). Because a lay standard governs informed consent
claims, a plaintiff does not have to comply with the statute requiring medical
negligence claims to be supported by a good faith certificate and written
opinion letter from a similar health care provider. Shortell v. Cavanagh,
300 Conn. 383, 386 (2011) (holding informed consent plaintiff exempt from
Conn. Gen. Stat. § 52-190a).
In order to prevail, a plaintiff must prove that there was a failure to disclose a
known material risk and that such failure was the proximate cause of injury.

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 1M-3 Medical Malpractice (Loss of Chance)

Kompiewska v. Smith House Operating, LLC, 2020 WL 1496529 (Conn. Super.

Ct. 2020) (citing Logan v. Greenwich Hosp. Ass’n, 191 Conn. 282, 293 (1983)).

1M-3 MEDICAL MALPRACTICE (LOSS OF CHANCE)

In order to recover in a medical malpractice case based upon lost chance, a
plaintiff must prove that, more probably than not, the defendant’s negligence
was the direct and proximate cause of a decrease in the chance of successful
treatment of the plaintiff’s injury. “In Connecticut, such cases follow a
traditional approach in the determination of proximate cause.” Poulin v.
Yasner, 64 Conn. App. 730, 744 (2001).
In order to prevail, the plaintiff must show:
1) That the plaintiff (or the plaintiff’s decedent) had in fact been
deprived of a chance for successful treatment; and
2) that the decreased chance for successful treatment more likely
than not resulted from the defendant’s negligence . . .
LaBieniec v. Baker, 11 Conn. App. 199, 207 (1987).
Statute of Limitations
The statute of limitations for a loss of chance claim is two years from the date
the injury is first sustained or discovered or in the exercise of reasonable care
should have been discovered, and in no event more than three years from the
date of the act complained of. Conn. Gen. Stat. § 52-584.
Notes
For example, in order to satisfy the elements of a lost chance claim involving
a death, the plaintiff must first prove that prior to the defendant’s alleged
negligence, the decedent had a chance of survival of at least 51 percent.
Once this threshold has been met, the plaintiff must then demonstrate that
the decedent had a decreased chance for successful treatment and that
this decreased chance more likely than not resulted from the defendant’s
negligence. See Drew v. William W. Backus Hosp., 77 Conn. App. 645, 655
(2003). “Accordingly, it is not sufficient for a lost chance plaintiff to prove
merely that a defendant’s negligent conduct has deprived him or her of some
chance; in Connecticut, such plaintiff must prove that the negligent conduct
more likely than not affected the actual outcome.” Boone v. William W. Backus
Hosp., 272 Conn. 551, 573-74 (2005) (citations omitted; emphasis in original;
internal quotation marks omitted). In Boone, the Supreme Court construed
the plaintiff’s complaint as alleging loss of chance, even though it did not use
the words “lost chance” or “lost opportunity,” because it was “predicated on
the defendant’s alleged acts of omission rather than commission.” Boone v.
William W. Backus Hosp., 272 Conn. 551, 573 n.12 (2005). The authors advise

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 Medical Malpractice (Standard)1M-4

against relying on a similarly generous construction in the future; just plead

loss of chance expressly.
Traditional malpractice claims and loss of chance claims are not
interchangeable. “[T]he use of the lost chance doctrine for deciding an
ordinary medical malpractice action would not be appropriate. Sargis v.
Donahue, 142 Conn. App. 505, 512 (2013).”All medical malpractice claims,
whether involving acts or inactions of a defendant physician, require that
a defendant physician’s conduct proximately cause the plaintiff’s injuries.
Id. (emphasis added, internal quotation marks omitted) (quoting Weaver v.
McKnight, 134 Conn. App. 652, 658, cert. granted on other grounds, 305 Conn.
907 (2012)). “To prove proximate cause under the lost chance doctrine, a
specialized subset of ordinary medical malpractice dealing with a particular
kind of omission that both parties agree does not apply in this case, the
plaintiff must prove, in essence, that what was done . . . probably would have
affected the outcome.” Sargis, 142 Conn. App. at 512 (quotation omitted).
Proximate cause determinations under ordinary medical malpractice actions,
however, do not focus on the outcome. Rather, a plaintiff need only prove
that “the conduct of the defendant was a substantial factor in causing the
plaintiff’s injury.” Id. (quoting Weaver, 134 Conn. App. at 658) (internal
quotation marks omitted).

1M-4 MEDICAL MALPRACTICE (STANDARD)

To prevail in a standard medical malpractice action, a plaintiff must prove:
1) The requisite standard of care for treatment;
2) a deviation from that standard of care;
3) a causal connection between the deviation and the claimed
injury; and
4) damages.
Boone v. William W. Backus Hosp., 272 Conn. 551, 567 (2005).
Statute of Limitations
The statute of limitations for a medical malpractice action is two years
from the date the injury is first sustained or discovered or in the exercise of
reasonable care should have been discovered, and in no event more than three
years from the date of the act complained of. Conn. Gen. Stat. § 52-584.
Notes
“Generally, the plaintiff must present expert testimony in support of a
medical malpractice claim because the requirements for proper medical
diagnosis and treatment are not within the common knowledge of

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 1M-4 Medical Malpractice (Standard)

laypersons . . . An exception to the general rule requiring expert medical

opinion evidence . . . is when the medical condition is obvious or common
in everyday life . . . Similarly, expert opinion may not be necessary as
to causation of an injury or illness if the plaintiff’s evidence creates a
probability so strong that a lay jury can form a reasonable belief.” Boone,
272 Conn. at 567. Expert testimony also is unnecessary “in those cases where
the professional negligence is so gross as to be clear even to a lay person[,]”
Barnes v. Conn. Podiatry Grp., P.C., 195 Conn. App. 212, 222 n.7 (2020), but
gross negligence is a “high threshold of egregiousness”. Boone, 272 Conn.
at 575.
Conn. Gen. Stat. § 52-190a requires a medical malpractice plaintiff, or his
attorney, to attach a certificate attesting that he “has made a reasonable
inquiry as permitted by the circumstances to determine that there are
grounds for a good faith belief that there has been negligence in the care or
treatment of the claimant.” See Conn. Gen. Stat § 52-190a. A plaintiff must
support that certificate with a “written and signed opinion of a similar health
care provider . . . that there appears to be evidence of medical negligence and
includes a detailed basis for the formation of such opinion.” Id. The similar
health care provider must opine only as to a breach of the standard of care,
not all of the elements of malpractice (e.g., causation). See Dias v. Grady,
292 Conn. 350, 359 (2009). Furthermore, “the plaintiff’s good faith belief
regarding causation may be based on consultation with nonsimilar health
care providers or on other reasonable grounds.” Id. at 363. It does not have to
be “based solely on the written opinion of the similar health care provider.”
Id.
If the standard of reasonable medical care in a given situation includes a duty
to monitor a patient to prevent him from inflicting harm on himself—e.g., a
patient receiving psychiatric treatment—then the failure to properly monitor
that patient may give rise to a malpractice claim, so long as the failure to
properly monitor was a substantial factor in causing the self-inflicted harm.
See Vinchiarello v. Kathuria, 18 Conn. App. 377, 380-81 (1989).
An allegation of medical malpractice does not form the basis for a valid
unfair trade practices claim. Haynes v. Yale-New Haven Hosp., 243 Conn.
17, 34 (1997). Evidence of informed consent (or a lack of informed consent)
is both irrelevant and potentially prejudicial in a medical malpractice action
where the plaintiff has not alleged a lack of informed consent. Hayes v.
Camel, 283 Conn. 475, 485-88 (2007). In addition, it is important to remember
that hospital rules, regulations and policies do not in themselves establish
a medical standard of care for purposes of a malpractice action. Petriello v.
Kalman, 215 Conn. 377, 386 (1990).

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Under the doctrine of apparent agency, a hospital may be vicariously liable

for the actions of a doctor who is not the hospital’s employee if a plaintiff
proves either of two alternative theories: The first theory requires proof that
“(1) the [hospital] held itself out as providing certain services; (2) the plaintiff
selected the [hospital] on the basis of its representations; and (3) the plaintiff
relied on the [hospital] to select the specific person who performed the
services that resulted in the harm complained of by the plaintiff.” Cefaratti v.
Aranow, 321 Conn. 593, 624 (2016). The second theory is a transplant from
traditional contract actions: “(1) the [hospital] held the apparent agent or
employee out to the public as possessing the authority to engage in the
conduct at issue, or knowingly permitted the apparent agent or employee
to act as having such authority; (2) the plaintiff knew of these acts by the
[hospital], and actually and reasonably believed that the agent or employee
or apparent agent or employee possessed the necessary authority . . . and
(3) the plaintiff detrimentally relied on the [hospital’s] acts, i.e., the plaintiff
would not have dealt with the tortfeasor if the plaintiff had known that the
tortfeasor was not the [hospital’s] agent or employee.” Cefaratti v. Aranow, 321
Conn. 593, 624-25 (2016).
Doe v. Cochran, 332 Conn. 325 (2019) discusses the differences between a
medical malpractice claim and a claim against a doctor sounding in ordinary
negligence. Id. at 332-35; see id. at 338 (doctor may be liable in ordinary
negligence to foreseeable third party who alleges harm due to doctor’s
failure to provide accurate test results). Whether a suit sounds in medical
malpractice turns on whether: “(1) the defendants are sued in their capacities
as medical professionals, (2) the alleged negligence is of a specialized medical
nature that arises out of the medical professional-patient relationship and
(3) the alleged negligence is substantially related to medical diagnosis or
treatment and involved the exercise of medical judgment.” Young v. Hartford
Hosp., 196 Conn. App. 207, 213 (2020).

1N-1 NEGLIGENCE
The essential elements of a cause of action in negligence are well established:
1) duty;
2) breach of that duty;
3) causation; and
4) actual injury.
RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384 (1994).

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Statute of Limitations
Two years from the date the injury is first sustained or discovered or in the
exercise of reasonable care should have been discovered, and in no event more
than three years from the date of the act complained of. Conn. Gen. Stat.
§ 52-584.
Notes
Duty is a legal conclusion about relationships between individuals, made
after the fact, and is imperative to a negligence cause of action. The test for
the existence of a legal duty entails:
1) a determination of whether an ordinary person in the defendant’s
position, knowing what the defendant knew or should have
known, would anticipate that harm of the general nature of that
suffered was likely to result; and
2) a determination, on the basis of a public policy analysis, of
whether the defendant’s responsibility for its negligent conduct
should extend to the particular consequences or particular
plaintiff in the case.
Mazurek v. Great Am. Ins. Co., 284 Conn. 16, 29 (2007). The measure
of duty and its breach is the “reasonable care standard, which is the care
that a reasonably prudent person would use under the circumstances.”
Rawls v. Progressive N. Ins. Co., 310 Conn. 768, 776 (2014). Reasonable care
“does not require that one must guard against eventualities which, at best,
are too remote to be reasonably foreseeable[,]” Pelletier v. Sordoni/Skanska
Constr. Co., 286 Conn. 563, 595 (2008), but reasonable care pays no heed to a
defendant’s good intentions (or lack thereof). See Logan v. Greenwich Hosp.
Ass’n, 191 Conn. 282, 299 (1983) (“[e]rrors in judgment which occur with
the best intentions constitute negligence if they result from a failure to use
reasonable care”). See Munn v. Hotchkiss Sch., 326 Conn. 540 (2017) for a
thorough discussion on the concept of duty under the scope of Connecticut
law.
Violation of a statute or regulation is negligence per se, which “establishes a
breach of duty when (1) the plaintiff is within the class of persons intended
to be protected by the statute, and (2) the injury is the type of harm that the
statute was intended to prevent.” Vermont Mut. Ins. Co. v. Fern, 165 Conn.
App. 665, 672 (2016) (quoting Duncan v. Mill Mgmt. Co. of Greenwich, Inc.,
308 Conn. 1, 24 (2013)). An allegation of negligence per se does not relieve
a plaintiff of his burden to prove breach, causation and actual injury. 165
Conn. App. at 672. However, “the jury . . . need not decide whether the
defendant acted as an ordinarily prudent person . . . only whether the relevant

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statute or regulation has been violated. If it has, the defendant was negligent
as a matter of law.” Id. at 672-73.
A duty of care also may arise from a contract. However, contracting parties
have a duty to prevent harm to third parties greater than that imposed by the
common law only if (1) the contract expressly says that they do, or (2) they
unambiguously intend to protect third parties from foreseeable, physical
harm within the scope of the contractual services. See Demond v. Project
Serv., LLC, 331 Conn. 816, 847-48 (2019); see Raczkowski v. McFarlane, 195
Conn. App. 402, 411 (2020) (clear from language of lease that landlord did
not owe plaintiff duty “to perform an extraneous investigation of [tenant’s]
dog’s behavioral propensities”). This rule also applies to assumed obligations
without an express contract, though Demond does not elaborate on what
evidence might satisfy the first half of the test in that circumstance. See
Demond, 331 Conn. at 848.
A plaintiff must present expert testimony on the standard of care “when
the question involved goes beyond the field of the ordinary knowledge and
experience of judges or jurors.” Osborn v. Waterbury, 333 Conn. 816, 826
(2019). This is par for the course in medical malpractice and legal malpractice
suits; see LEGAL MALPRACTICE, supra; MEDICAL MALPRACTICE,
infra; but it also rears its head for claims “akin to allegations of professional
negligence or malpractice.” Osborn, 333 Conn. at 826-27. Kinship is a
difficult concept to pin down. Compare Osborn, 333 Conn. at 831 (expert
testimony not required for standard of care to safely supervise children on
school playground); with LePage v. Horne, 262 Conn. 116, 123 (2002) (expert
testimony required “to assist the jury to understand the standard of care” for
day care provider).
Connecticut recognizes a cause of action for negligence and negligent
infliction of emotional against health care providers for the unauthorized
disclosure of confidential patient information. See Byrne v. Avery Ctr. for
Obstetrics & Gynecology, P.C., 327 Conn. 540 (2018); see also Byrne v. Avery
Ctr. for Obstetrics & Gynecology, P.C., 314 Conn. 433 (2014) (federal law does
not preempt claims). Similarly, a doctor who mistakenly informs a patient
that he does not have a sexually transmitted disease may be held liable in
ordinary negligence to the patient’s exclusive sexual partner for her resulting
injuries if the doctor knows that the patient sought testing and treatment for
the express benefit of that partner. See Doe v. Cochran, 332 Conn. 325, 327-28
(2019).
Despite extensive federal regulation of railroads, federal law does not
preempt a claim for negligent selection of the station track on which to run
a through train. See Murphy v. Town of Darien, 332 Conn. 244, 265-66 (2019)

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(reversing summary judgment for defendant in suit by widow of deceased

commuter who slipped and fell onto track).
The Supreme Court has yet to settle whether Connecticut recognizes—or, at
least, assigns any importance to—the concept of gross negligence. Compare
Hanks v. Powder Ridge Rest. Corp., 276 Conn. 314, 337 (2005) (“Connecticut
does not recognize degrees of negligence and, consequently, does not
recognize the tort of gross negligence as a separate basis of liability”), with
19 Perry St., LLC v. Unionville Water Co., 294 Conn. 611, 631 (2010) (“[w]e
have defined gross negligence as very great or excessive negligence, or as the
want of, or failure to exercise, even slight or scant care or slight diligence”).
Hanks and 19 Perry St., though seemingly matter and anti-matter, exist in the
same legal universe for a simple reason: The author of the dissent in Hanks,
former Justice Flemming Norcott, wrote the majority in 19 Perry St. (and
cited his Hanks dissent) and Hanks has history on its side; see Decker v.
Roberts, 125 Conn. 150, 157, 3 A.2d 855 (1939) (“gross negligence has never
been recognized in this state as a separate basis of liability”); but 19 Perry
St. has numbers—most other jurisdictions recognize gross negligence.
Though Connecticut has “not recognized a cause of action sounding in
gross negligence, it does not necessarily follow that a court, in the course
of adjudicating a negligence cause of action, is barred from recognizing a
distinction between negligent and grossly negligent conduct.” Commerce
Park Assocs., LLC v. Robbins, 193 Conn. App. 697, 729 (2019), cert. denied,
334 Conn. 912 (2020) (emphasis in original) (distinction particularly relevant
because contract waived liability for ordinary negligence but not gross
negligence).
The causation element of negligence has given courts, scholars, lawyers, and
jurors agita for centuries – especially “the doctrines of proximate cause and
superseding cause.” Snell v. Norwalk Yellow Cab, Inc., 332 Conn. 720, 742
(2019). The Supreme Court eliminated superseding cause with respect to
“claims that a subsequent negligent act by a third party cuts off . . . liability
for the plaintiff’s injuries.” Id. at 747 (quoting Barry v. Quality Steel Products,
Inc., 263 Conn. 424, 436 (2003)). Snell clears up post-Barry confusion; it holds
that superseding cause still applies to claims of criminally reckless conduct.
See Snell, 332 Conn. at 724.
A plaintiff usually must prove causation, but the “alternative liability”
doctrine shifts the burden of proof on that element to the defendants if
(1) there are multiple defendants, (2) only one of whom could have harmed
the plaintiff, (3) but it is uncertain which defendant caused the harm. See
Connecticut Interlocal Risk Mgmt. Agency v. Jackson, 333 Conn. 206 (2019)
(adopting doctrine). In that scenario, each defendant has the burden to prove
that he did not cause the harm. Id. at 208; see 1 Restatement (Third), Torts,

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Liability for Physical and Emotional Harm § 28, comment (f). The rule
applies “applies only when the plaintiff can demonstrate, first, that all of the
defendants acted negligently and harm resulted, second, that all possible
tortfeasors have been named as defendants, and, third, that the tortfeasors’
negligent conduct was substantially simultaneous in time and of the same
character so as to create the same risk of harm.” Id. at 215.
Even if a defendant admits liability, a plaintiff still must prove an actual
injury because “conduct that is merely negligent . . . is not considered to be
a significant interference with the public interest such that there is any right
to complain of it, or to be free from it.” Right v. Breen, 277 Conn. 364, 377
(2006). Likewise, “[t]he economic loss doctrine bars negligence claims for
commercial losses arising out of the defective performance of contracts.”
Ulbrich v. Groth, 310 Conn. 375, 391 n.14 (2013). This doctrine “limits a
contracting party to contractual remedies for the recovery of economic losses
unaccompanied by physical injury to persons or other property[,]” but does
not prevent a contracting party from “agree[ing] to be liable for loss, damage
or expense attributable to that party’s negligence, gross negligence or willful
misconduct.” State v. Lombardo Bros. Mason Contrs., Inc., 307 Conn. 412,
469 n.41 (2012).
The “firefighter’s rule” prohibits claims for premises liability against
a property owner by firefighters or police, etc., who are injured while
responding to an emergency. In 2017, the Supreme Court held, however, that
the firefighter’s rule does not bar claims sounding in ordinary negligence.
Sepega v. Delaura, 326 Conn. 788, 814-15 (2017). In light of the thorough and
thoughtful analyses offered by both the majority and the dissent in Sepega,
and the similar analysis in Lund v. Milford Hosp., Inc., 326 Conn. 846 (2017),
which released the same day, it is likely that the scope and substance of the
firefighter’s rule will again be considered by the Court in the not-too-distant
future.

1N-2 NEGLIGENT ENTRUSTMENT

The elements of a cause of action for negligent entrustment are:
1) A defendant who owns a dangerous instrumentality;
2) entrusts that dangerous instrumentality;
3) to one whom the owner knows, or reasonably ought to know,
is so incompetent to operate it in a safe manner that the owner
reasonably should to anticipate likely harm to others; and
4) the person to whom the instrumentality is entrusted injures
another by his use of that instrumentality.

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Greeley v. Cunningham, 116 Conn. 515, 520 (1933); see Restatement (Second)
of Torts, § 390.
Statute of Limitations
The statute of limitations for negligent entrustment is two years from the date
the injury is first sustained or discovered or in the exercise of reasonable care
should have been discovered, and in no event more than three years from the
date of the act complained of. Conn. Gen. Stat. § 52-584.
Notes
Most reported Connecticut decisions involving negligent entrustment involve
an automobile as the dangerous instrumentality. See, e.g., Otis v. Montesi,
2008 WL 4779847 (Conn. Super. Ct. Oct. 10, 2008); Kaminsky v. Scoopo,
2008 WL 3854000 (Conn. Super. Ct. July 30, 2008); see also NEGLIGENT
ENTRUSTMENT OF MOTOR VEHICLE, infra. However, one decision
permits a negligent entrustment claim with respect to a freight train because
a supervisor “knew of a long list of reasons why [the driver] couldn’t be
trusted with the locomotive without creating an unreasonable risk of harm
to others.” Wilson v. Hopkins, 2018 WL 3579160, at *2 (Conn. Super. Ct.
July 9, 2018). Other cases do discuss the broader concept of the negligent
entrustment of any dangerous instrumentality (albeit in the context of an
automobile claim). See Bryda v. McLeod, 2004 WL 1786822 (Conn. Super.
Ct. July 12, 2004). The most obvious example of such an instrumentality is a
handgun. See Gilland v. Sportsmen’s Outpost, Inc., 2011 WL 2479693, at *12-13
(Conn. Super. Ct. May 26, 2011) (plaintiff failed to allege that defendants
negligently entrusted Glock 21 handgun to the individual who assaulted
plaintiff because complaint stated only that individual was left alone in store
and “took” gun and ammunition). However, negligent entrustment applies
only to chattel, not real property. See Lewis v. Burke, 2014 WL 7497472, at *3
(Conn. Super. Ct. Nov. 28, 2014) (rejecting claim that parents negligently
entrusted home to their son). Whatever the instrumentality, “an entrustment
can be considered negligent only if (1) there is actual or constructive
knowledge that the entrustee is incompetent or has a dangerous propensity,
and (2) the injury resulted from that incompetence or propensity.” Soto v.
Bushmaster Firearms Int’l, LLC, 2016 WL 8115354, at *6 (Conn. Super. Ct.
Oct. 14, 2016) (citing a half-dozen Superior Court decisions).
Several superior courts have declined to recognize a cause of action for
reckless entrustment. See Delaney-Ridolfi v. Rodriguez, 2018 WL 6015780,
at *5 (Conn. Super. Ct. Oct. 25, 2018) (citing cases).

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1N-3 NEGLIGENT ENTRUSTMENT OF MOTOR VEHICLE

The essential elements of the tort of negligent entrustment of an automobile
are:
1) that the entrustor knows or ought reasonably to know that one to
whom he entrusts the vehicle is so incompetent to operate it upon
the highways that the former ought to reasonably anticipate the
likelihood of injury to others by reason of that incompetence;
and
2) such incompetence does result in injury.
Kaminsky v. Scoopo, 2008 WL 3854000 (Conn. Super. Ct. July 30, 2008).
Statute of Limitations
Two years from the date the injury is first sustained or discovered or in the
exercise of reasonable care should have been discovered, and in no event more
than three years from the date of the act complained of. Conn. Gen. Stat.
§ 52-584.
Notes
Liability cannot be imposed on a defendant under a theory of negligent
entrustment, simply because the defendant permitted another person to
operate the motor vehicle. Liability can only be imposed if:
(1) there is actual or constructive knowledge that the person to
whom the automobile is loaned is incompetent to operate the
motor vehicle; and
(2) the injury resulted from that incompetence.
Kaminsky v. Scoopo, 2008 WL 3854000 (Conn. Super. Ct. July 30, 2008)
(citing Greeley v. Cunningham, 116 Conn. 515, 520 (1933)). It is unclear what
level of knowledge must be alleged. In Morin v. Machrone, 2011 WL 2418460
(Conn. Super. Ct. May 20, 2011), a superior court struck a claim for negligent
entrustment as insufficiently pleaded where the plaintiff had alleged that
the defendant knew or ought reasonably to have known that the individual
to whom the defendant entrusted her vehicle was “incompetent to operate
said vehicle by reason of inexperience and/or reckless behavior.” It appears
that the Morin court was looking for specific allegations of past reckless
conduct of which the defendant had actual or constructive knowledge.
It is not clear, however, that the cause of action described in Kaminsky v.
Scoopo requires that level of knowledge. See also Marron v. Grala, 2013 WL
388169, at *5 (Conn. Super. Ct. Jan. 2, 2013) (striking negligent entrustment
claim for failure to allege “any facts suggesting that Colossale had actual
or constructive knowledge of [the defendant’s] past history of incompetent
driving or dangerous propensities”). Nonetheless, one who rents or lends

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an automobile has no duty “to affirmatively inquire as to the renter or

borrower’s driving history.” Hall v. CAMRAC, LLC, 2013 WL 6925959, at *6
(Conn. Super. Ct. Dec. 10, 2013); see Chapman v. Herren, 2010 WL 2927377,
at *7-8 (Conn. Super. Ct. June 24, 2010) (same).
Greeley is the only reported appellate decision in Connecticut that discusses
negligent entrustment of a motor vehicle. However, a 2013 Superior Court
decision broadly defined the concept of “incompetence” to mean not only
“a mere lack of driving skill but . . . other cause by which an entrustor knows
or ought reasonably to know that a vehicle should not be entrusted to the
entrustee.” Short v. Ross, 2013 WL 1111820, at *7-8 (Conn. Super. Ct. Feb. 26,
2013) (plaintiff who alleged that rental company should not have rented
box truck to defendant that “would be used to haul and dispense alcohol
in a college tailgating environment” adequately pleaded claim for negligent
entrustment of motor vehicle); accord Ellis v. Jarmin, 2009 WL 5511268 (Conn.
Super. Ct. Dec. 17, 2009) (allegation that driver of rental car was subject to
outstanding warrants constituted prima facie proof of incompetence).

1N-4 NEGLIGENT HIRING/RETENTION/SUPERVISION

To prevail on a claim for negligent hiring/retention/supervision, a plaintiff
must prove that:
1) The defendant employer was negligent;
2) in hiring, retaining, or failing to properly supervise;
3) an employee whom the defendant knew, or should have known;
4) would cause harm to the plaintiff; and
5) the plaintiff was injured as a result of that employee’s conduct.
Seda v. Maxim Healthcare Servs., 2008 WL 1868412 (Conn. Super. Ct. Apr. 8,
2008); see also Seguro v. Cummiskey, 82 Conn. App. 186, 196 (2004).
Statute of Limitations
The statute of limitations for negligent hiring/retention/supervision is two
years from the date the injury is first sustained or discovered or in the exercise
of reasonable care should have been discovered, and in no event more than
three years from the date of the act complained of. Conn. Gen. Stat. § 52-584.
Notes
This three-headed cause of action involves the same basic negligent conduct
for each category: actual or constructive knowledge by an employer of his
employee’s “propensity for tortious conduct.” Seda, 2008 WL 1868412,
at *3. For all three, “a plaintiff must allege facts supporting the element of
foreseeability.” Cisneros v. Team Stamford, LLC, 2015 WL 5982514, at *2

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(Conn. Super. Ct. Sept. 17, 2015). The principal distinction between the three
sub-causes is the context/point in time at which the employer gains such
awareness; i.e., prior to the start of the employment (negligent hiring), or
during the course of the employment (negligent retention/supervision). Id. In
addition, negligent retention requires proof that after the employer acquired
actual or constructive knowledge of the employee’s tortious propensity,
the employer “failed to take further action.” Id. Proper supervision of an
employee can require an employer to proactively warn other employees about
his dangerous propensities. In Doe v. Hartford Roman Catholic Diocesan
Corp., 317 Conn. 357 (2015), for example, it was not enough for the defendant
to monitor the sobriety of an alcoholic priest who served as director of its
private elementary school and who molested children when he drank. The
defendant’s failure to advise anyone at the school to take precautions with
the priest made the defendant liable. Id. at 378-81. Moreover, “the dangerous
propensity or quality of the employee” must cause the plaintiff’s injuries.
Jones v. Boys & Girls Club of Greenwich, Inc., 2019 WL 7630796, at *5 (Conn.
Super. Ct. Dec. 17, 2019).
Because the underlying facts alleged, rather than the labels the plaintiff
chooses to use, determine the true nature of a plaintiff’s complaint, a claim
for injuries sustained while undergoing a blood test sounded in medical
malpractice, even though the plaintiff purportedly alleged a failure to “train
or supervise” the technician taking the blood. As a result, the plaintiff’s claim
was dismissed for failing to meet the statutory requirements for bringing
a medical malpractice claim. Nichols v. Milford Pediatric Group, P.C., 141
Conn. App. 707, 715 (2013).

1N-5 NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

To prevail on a claim of negligent infliction of emotional distress, a plaintiff
must prove the following elements:
1) The defendant’s conduct created an unreasonable risk of causing
the plaintiff emotional distress;
2) the plaintiff’s distress was foreseeable;
3) the emotional distress was severe enough that it might result in
illness or bodily harm; and
4) the defendant’s conduct was the cause of the plaintiff’s distress.
Carrol v. Allstate Ins. Co., 262 Conn. 433, 444 (2003).
Statute of Limitations
The statute of limitations for negligent infliction of emotional distress is
two years from the date the injury is first sustained or discovered or in the

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exercise of reasonable care should have been discovered, and in no event

more than three years from the date of the act complained of. Conn. Gen.
Stat. § 52-584. See Martin v. University of New Haven, Inc., 2006 WL 3289773
(Conn. Super. Ct. Oct. 24, 2006).
Notes
Negligent infliction of emotional distress safeguards “one’s peace of mind.”
Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345 (1978)
(recognizing existence of cause of action). The subjective and sometimes
amorphous nature of peace of mind, however, has made this tort a hotly-
contested one in the nearly four decades since Montinieri. The Connecticut
Supreme Court has held that in order to prevail on a claim of negligent
infliction of emotional distress, the plaintiff must prove both:
a) That the defendant should have realized that its conduct involved
an unreasonable risk of causing emotional distress and that that
distress, if it were caused, might result in illness or bodily harm;
and
b) that the fear or distress experienced by the plaintiffs was
reasonable in light of the conduct of the defendants.
Carrol, 262 Conn. at 447. This differs from “the standard negligence
requirement that an actor should have foreseen that his tortious conduct
was likely to cause harm[,]” in that negligent infliction of emotional distress
requires proof “that the actor should have foreseen that her behavior would
likely cause harm of a specific nature, i.e., emotional distress likely to lead
to illness or bodily harm.” Stancuna v. Schaffer, 122 Conn. App. 484, 490
(2010). Moreover, some of the unpleasant parts of life—e.g., litigation—
are so “inherently distressing” that another person’s conduct during those
events “does not create an unreasonable risk of causing [a litigant] emotional
distress.” Id. at 491 (affirming motion to strike negligent infliction claim
based on guardian ad litem’s ex parte conversation that caused judge to
recuse himself). Mind you, “[t]he only requirement is that the distress might
result in illness or bodily harm[,]” Riley v. Travelers Home & Marine Ins. Co.,
173 Conn. App. 422, 443 (2017) (emphasis in original), not that the plaintiff
actually suffered illness or bodily harm.
A claim for negligent infliction of emotional distress can arise from a health
care provider’s unauthorized disclosure of confidential patient information.
Byrne v. Avery Ctr. for Obstetrics & Gynecology, P.C., 327 Conn. 540 (2018)
(considering the validity of such a claim for the first time).
Unlike a claim for intentional infliction of emotional distress, negligent
infliction of emotional distress does not require a plaintiff to allege that the
defendant’s conduct was unreasonable, outrageous or egregious. Davis v.

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Davis, 112 Conn. App. 56, 68 (2009) (citing Murphy v. Lord Thompson
Manor Inc., 105 Conn. App. 546, 553, cert. denied, 286 Conn. 914 (2008)).
Likewise, “negligent infliction of emotional distress do[es] not require proof
of any particular level of intent. In fact, intent need not be proven at all to
establish [it].” Geiger v. Carey, 170 Conn. App. 459, 498 (2017). However, a
defendant must owe the allegedly distressed plaintiff a direct duty of care.
See Demattia v. Bank of Am., N.A., 2016 WL 4150169, at *6 (Conn. Super.
Ct. June 29, 2016) (“the existence of a duty is key component of a negligent
infliction of emotional distress claim”) (citing cases).
“Negligent infliction of emotional distress in the employment context arises
only when it is based upon unreasonable conduct of the defendant in the
termination process . . . . An individual may not be found liable for negligent
infliction of emotional distress arising out of conduct occurring within a
continuing employment context, as distinguished from conduct occurring in
the termination of employment.” Grasso v. Conn. Hospice, Inc., 138 Conn.
App. 759, 771 (2012). The workplace is an inherently stressful place; courts set
a very high bar for negligent infliction claims in that context. See Sempey v.
Stamford Hosp., 194 Conn. App. 505, 517 (2019) (affirming decision to strike
claim because not “patently unreasonable” for defendant to keep folders
with “various certificates and personal records” when it fired plaintiff).
However, an allegation of constructive termination, if proved, can satisfy this
requirement. See Perodeau v. Hartford, 259 Conn. 729 (2002).

1N-6 NEGLIGENT MISREPRESENTATION

In order to prove negligent misrepresentation, a plaintiff must prove:
1) That the defendant made a misrepresentation of fact;
2) that the defendant knew or should have known was false;
3) that the plaintiff reasonably relied on the misrepresentation; and
4) that the plaintiff suffered pecuniary harm as a result.
Nazami v. Patrons Mutual, 280 Conn. 619, 626 (2006).
Statute of Limitations
The statute of limitations for negligent misrepresentation is three years from
the date of the act complained of. Conn. Gen. Stat. § 52-577.
Notes
As with its intentional sibling; see FRAUD, supra; negligent misrepresentation
generally concerns present or past facts. However, “a promise to do an act in
the future, when coupled with a present intent not to fulfill the promise, is a
false representation.” Brown v. Otake, 164 Conn. App. 686, 706 (2016). The

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defendant’s failure “to exercise reasonable care or competence in obtaining or

communicating the information” distinguishes negligent misrepresentation
from innocent misrepresentation. Sturm v. Harb Dev., LLC, 298 Conn.
124, 144 (2010); see INNOCENT MISREPRESENTATION, supra. In
general, “the reasonableness of the plaintiff’s reliance will be a question of
fact for the trier.” Coppola Const. Co. v. Hoffman Enterprises Ltd. P’ship,
309 Conn. 342, 353 n.6 (2013). Not so, however, if that reliance conflicts
with the unambiguous language of a fully integrated, written contract.
See A.C. Consulting, LLC v. Alexion Pharm., Inc., 194 Conn. App. 316,
334 (2019) (affirming motion to strike negligent misrepresentation claim
despite defendant’s alleged “assurances, promises, or representations”
because plaintiff “executed a fully integrated contract with a merger clause
that . . . superseded any prior understanding between the parties”).
It is an open question whether Connecticut recognizes a cause of action
for third-party negligent misrepresentation against attorneys, accountants,
auditors, or medical professionals. See Doe v. Cochran, 332 Conn. 325, 333
n.3 & 344 n.8 (2019). Likewise, “whether a false statement made as part of
a medical opinion could support a cause of action for misrepresentation[,]”
has yet to be answered. Farrell v. Johnson & Johnson,    Conn.   , 2020 WL
1887720, at *12 (Slip. Op., Apr. 15, 2020).
Because a negligent misrepresentation claim sounds in tort rather than
in contract, it will not be barred by the statute of frauds, even where the
negligent misrepresentations in question are related to an oral contract that
would be barred by the statute of frauds. Sovereign Bank v. Licata, 116 Conn.
App. 483, 501-02 (2009). “A negligent misrepresentation action does not seek
to enforce the underlying contract; rather, it seeks damages for reliance on
misrepresentations that may have been made in relation to that contract. This
critical distinction sets the tort action apart from a contract action and makes
the claim worthy of independent review. We conclude, therefore, that because
the defendant’s claim for negligent misrepresentation sounds in tort and not
in contract, the statute of frauds does not bar such a claim.” Id.
However, the economic loss doctrine, which “limits a contracting party to
contractual remedies for the recovery of economic losses unaccompanied
by physical injury to persons or other property[,]” bars negligent
misrepresentation claims for “for commercial losses arising out of the
defective performance of contracts.” Ulbrich v. Groth, 310 Conn. 375, 391
n.14 & 399 (2013).

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1N-7 NEGLIGENT SERVICE OF ALCOHOL TO AN

INTOXICATED PERSON
At one time, the Supreme Court recognized a common law cause of action
for negligent service of alcohol to an intoxicated person. Craig v. Driscoll,
262 Conn. 312, 339-40 (2003). Shortly after the Craig decision was released,
however, the General Assembly passed Public Act No. 03-91, barring any
common law cause of action in negligence against a seller of alcohol to an
intoxicated person 21 years of age or older. See Conn. Gen. Stat. § 30-102;
Poulin v. Laboy, 2011 WL 1565930, at *2 (Conn. Super. Ct. Mar. 31, 2011). As
a result, while a claim for reckless service of alcohol to an intoxicated person
may remain, and a claim for negligent service of alcohol to a minor does
remain, the Connecticut legislature has abrogated any claim for negligent
service of alcohol to an intoxicated adult. See DRAM SHOP ACT (Conn.
Gen. Stat. § 30-102), supra.

1N-8 NEGLIGENT SERVICE OF ALCOHOL TO A MINOR

The elements of a common-law cause of action for negligent service of alcohol
to a minor are:
1) Sale or service of alcohol to a minor;
2) by a social host or other purveyor of alcohol; and
3) injury or damage to that minor or an innocent third party
proximately caused by the minor’s consumption of alcohol.
Bohan v. Last, 236 Conn. 670, 677 (1996).
Statute of Limitations
The statute of limitations for negligent service of alcohol to a minor is two
years from the date the injury is first sustained or discovered or in the exercise
of reasonable care should have been discovered, and in no event more than
three years from the date of the act complained of. Conn. Gen. Stat. § 52-584.
Notes
Contributory negligence is a valid defense to a claim of negligent service of
alcohol to a minor. See Stafford v. Roadway, 312 Conn. 184, 185-86 (2014).
In the absence of evidence that parents supplied alcohol to their minor son,
they were not liable for injuries caused by the minor’s subsequent drunk
driving, even if they were aware and acquiesced in minor’s purchase and
storage of alcohol in their home. Rangel v. Parkhurst, 64 Conn. App. 372, 381
(2001).

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 1P-1 Parental Recovery of Consequential Damages for Injury to Minor Child

1P-1 PARENTAL RECOVERY OF CONSEQUENTIAL

DAMAGES FOR INJURY TO MINOR CHILD
In order to prevail on a claim for consequential damages for injury to a minor
child, a plaintiff-parent must establish:
1) An injury to his or her child;
2) caused by the negligent act of a third party;
3) resulting in loss of services from the child, or expenses, as a
consequence of that injury.
Dzenutis v. Dzenutis, 200 Conn. 290, 308 (1986); Ruiz v. Victory Props., LLC,
315 Conn. 320, 334 n.6 (2015).
Statute of Limitations
Two years from the date the injury to the minor child is first sustained or
discovered or in the exercise of reasonable care should have been discovered,
and in no event more than three years from the date of the act complained of.
Conn. Gen. Stat. § 52-584.
Notes
At first blush, Conn. Gen. Stat. § 52-204 appears to permit only the minor
child to recover consequential damages arising out of injuries to that
child—but Dzenutis holds otherwise. “Although [Conn. Gen. Stat. § 52-204]
authorizes the recovery of medical expenses in an action solely in behalf of
the injured child and makes the recovery in such action a bar to any claim by
the parent for such expenses, the statute does not mandate that procedure.”
Dzenutis v. Dzenutis, 200 Conn. 290, 308 (1986). A parent therefore may bring
an action in his or her own right to recover such consequential damages. Id.

1P-2 
PIERCING THE CORPORATE VEIL
In order to prevail on a claim to pierce the corporate veil, a plaintiff must
prove one of two sets of elements:
EITHER THE INSTRUMENTALITY RULE:
1) Complete domination over the policy and business practices of a
corporate entity;
2) with respect to the transaction in question;
3) which domination was employed to commit a fraud or wrong,
perpetrate a dishonest or unjust act, or violate a legal or
statutory duty; and
4) which proximately caused the injury or unjust loss complained
of;

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OR THE IDENTITY RULE:

1) there was such unity of interest and ownership between two
corporate entities;
2) that the independence of such entities had ceased, or never had
begun; and
3) that adherence to the fiction of separate identities would be
contrary to justice and equity.
See Angelo Tomasso, Inc. v. Armor Constr. & Paving, Inc., 187 Conn. 544,
552-54 (1982); Mountview Plaza, Inc. v. World Wide Pet Supply, Inc., 76 Conn.
App. 627, 632-33 (2003).
Statute of Limitations
Because piercing the corporate veil is an equitable remedy, and not a cause of
action at law, there is no governing statute of limitations.
Notes
Strictly speaking, there is no such thing as a “cause of action” to pierce the
corporate veil. Rather, piercing the corporate veil is an equitable remedy that
permits recovery of damages, in spite of the apparent shield of corporate
immunity, when the interests of justice so require. See Angelo Tomasso, Inc.,
187 Conn. at 552-54. Nonetheless, it is common practice in Connecticut to
plead piercing the corporate veil as a separate count in a complaint when the
plaintiff seeks to pierce the shield of corporate immunity and recover from an
entity not apparently liable.
Connecticut recognizes two distinct theories under which the corporate veil
may be pierced: the instrumentality rule and the identity rule:
The instrumentality rules requires, in any case but an express
agency, proof of three elements: (1) Control, not mere majority
or complete stock control, but complete domination, not only
of finances but of policy and business practice in respect to
the transaction attacked so that the corporate entity as to this
transaction had at the time no separate mind, will or existence
of its own; (2) that such control must have been used by the
defendant to commit fraud or wrong, to perpetrate the violation
of a statutory or other positive legal duty, or a dishonest or
unjust act in contravention of plaintiff’s legal rights; and (3) that
the aforesaid control and breach of duty must proximately
cause the injury or unjust loss complained of . . . . The second
theory is the identity rule. If plaintiff can show that there was
such a unity of interest and ownership that the independence
of the corporations had in effect ceased or had never begun, an

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adherence to the fiction of separate identity would serve only

to defeat justice and equity by permitting the economic entity
to escape liability arising out of an operation conducted by one
corporation for the benefit of the whole enterprise.
Morris v. Cee Dee, LLC, 90 Conn. App. 403, 414-15, cert. granted on other
grounds, 275 Conn. 929 (2005).
While the instrumentality rule generally is used to pierce the veil as to
individuals, and the identity rule as to other corporate entities, that is not an
express requirement. Klopp v. Thermal-Sash, Inc., 13 Conn. App. 87, 89 n.3
(1987). Both theories apply to piercing the veil for a limited liability company
as well as a corporation. See Sturm v. Harb Dev., LLC, 298 Conn. 124, 131-32
(2010).
While a traditional veil-piercing claim seeks to impose liability on an
individual for a judgment rendered against a corporate entity, reverse veil
piercing seeks to impose liability on a corporation for a judgment rendered
against an individual. The Connecticut Appellate Court recognized the
doctrine of reverse veil piercing as a viable claim in Litchfield Asset
Mgmt. Corp. v. Howell, 70 Conn. App. 133, cert. denied, 261 Conn. 911
(2002), overruled on other grounds by Robinson v. Coughlin, 266 Conn. 1, 9
(2003), which is to date the only appellate level case in Connecticut to have
so held. The Howell decision was subsequently called into question by the
Supreme Court in Commissioner of Envtl. Prot. v. State Five Indus. Park, Inc.,
304 Conn. 128 (2012). There, the Supreme Court assumed without deciding
that the doctrine of reverse veil piercing could be viable in Connecticut but
found that the facts of the case did not support the trial court’s decision to
pierce the corporate veil. Notably, the concurrence in the State Five case
criticized the majority for refusing to decide the continuing viability of the
Howell decision and the reverse veil piercing doctrine. The dissent would
have overruled Howell and declared that a claim of reverse veil piercing is not
available under Connecticut law. See generally State Five, 304 Conn. at 151-61
(Zarella, J., concurring).
In considering the application of a reverse veil piercing claim, the State
Five majority explained that the claim raises issues that are substantially
different from those presented by a traditional veil piercing claim: “Although
some courts have adopted reverse veil piercing with little distinction as a
logical corollary of traditional veil piercing, because the two share the same
equitable goals, others wisely have recognized important differences between
them and have either limited, or disallowed entirely, reverse veil piercing.”
State Five, 304 Conn. at 140 (citations omitted).

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“First, reverse piercing bypasses normal judgment-collection procedures,

whereby judgment creditors of an individual judgment debtor attach the
judgment debtor’s shares in the corporation and not the corporation’s
assets.” Id. at 140-41 (citation and internal quotation marks omitted). “When
corporate assets are attached directly for the benefit of the creditors of an
individual, it prejudices rightful creditors of the corporation, who relied
on the entity’s separate corporate existence when extending it credit and
understood their loans to be secured—expressly or otherwise—by corporate
assets.” (Citation and quotation omitted) Id. “Second, if a corporation has
other non-culpable shareholders, they too obviously will be prejudiced if the
corporation’s assets can be attached directly. In contrast, in ordinary piercing
cases, only the assets of the particular shareholder or other insider who is
determined to be the corporation’s alter ego are subject to the attachment.”
Id. at 141-42. “Finally, because corporate veil piercing is an equitable remedy,
it should be granted only in the absence of adequate remedies at law.” Id.
at 142 (citation and internal quotation marks omitted.). “To summarize, a
court considering reverse veil piercing must weigh the impact of such action
upon innocent investors . . . . A court considering reverse veil piercing must
also consider the impact of such an act upon innocent secured and unsecured
creditors. The court must also consider the availability of other remedies the
creditor may pursue.” Id. at 142 (quotation omitted).
At least one superior court judge has held that breach of contract and
common-law claims of negligence are not enough to warrant piercing the
corporate veil, there must be allegations that failure to pierce the corporate
veil would “defeat justice and equity by permitting [individuals] to escape
liability arising from their actions.” Waskiewicz v. Trim Unlimited Hair
Design, LLC, 2019 WL 7630787 (Conn. Super. Ct. 2019).

1P-3 PHYSICIAN/PATIENT CONFIDENTIALITY

An action for breach of physician/patient confidentiality requires proof of
four elements:
1) The existence of a physician/patient relationship;
2) the unauthorized disclosure by the physician of confidential
information;
3) obtained in the course of the relationship for the purpose of
treatment; and
4) damages caused by the unauthorized disclosure.
Byrne v. Avery Ctr. for Obstetrics & Gynecology, P.C., 327 Conn. 540, 567-68
(2018).

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 1P-4 Principal Liability for Corporate Debt

Statute of Limitations
Byrne announces a new cause of action, but not how long a patient has to
sue under it. However, as the basis is breach of a common law duty of care,
id. at 567, likely two years from the date the injury to the minor child is first
sustained or discovered or in the exercise of reasonable care should have been
discovered, and in no event more than three years from the date of the act
complained of. Conn. Gen. Stat. § 52-584.
Notes
Byrne follows the lead of most other states that have considered the issue.
Byrne, 327 Conn. at 575 n.1 (Robinson, J., concurring) (noting “extremely
broad support for the recognition of a cause of action in the case law of our
sister states”). Though there is no private right of action under the Health
Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C.
§§ 1320d, et seq., HIPAA regulations “inform” the standard of care for a
common-law suit. Byrne, 327 Conn. at 557. If the law allows disclosure
without a patient’s consent, it is “authorized.” Id. at 568.
In the wake of Byrne, one trial court has extended its reach to a non-physician
sexual abuse counselor. See Doe I v. St. Francis Hosp. & Med. Ctr., 2018 WL
1177460, at *1, 5 (Conn. Super. Ct. Feb. 5, 2018) (denying motion to strike
Byrne claim for unauthorized disclosure that plaintiff had been “a victim of
sexual abuse, the circumstances surrounding her sexual abuse, and that she
was receiving sexual abuse counseling”).
Nonpatients also may have a claim for breach of physician/patient
confidentiality. “Physicians must balance dual responsibilities to promote
the welfare and confidentiality of the individual patient and to protect public
safety.” Doe v. Cochran, 332 Conn. 325, 359 (2019) (holding the physician had
a duty of care to third party). Physicians have professional responsibilities
to patients as well as nonpatients, especially in the context of infectious
disease. Id. Professional standards of care demand that a physician not
only treat his or her own patient, but also go so far as to “[p]articipate in
implementing scientifically and ethically sound quarantine and isolation
measures in keeping with the duty to provide care in epidemics.” Id. 359-60.
A physician’s duty to protect the broader public health and deter the spread
of contagious diseases, at times, transcends the physician’s duty to the
individual patient. Id.

1P-4 PRINCIPAL LIABILITY FOR CORPORATE DEBT

See PIERCING THE CORPORATE VEIL, supra.

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1P-5 PRIVATE NUISANCE

To prevail in an action for a private nuisance, a plaintiff must establish the
following elements:
1) Conduct by the defendant that proximately causes;
2) an unreasonable interference with the plaintiff’s use and
enjoyment of his own property.
Pestey v. Cushman, 259 Conn. 345, 361 (2002).
Statute of Limitations
Three years from the date of the act complained of; see Conn. Gen. Stat. § 52-
577; unless based solely on negligent conduct by the defendant, in which case
two years; see Conn. Gen. Stat. § 52-584.
The Appellate Court has recognized, however, that the “nature of a nuisance
as permanent or temporary has an important bearing on the running of the
statute of limitations . . . . For limitations purposes, a permanent nuisance
claim accrues when injury first occurs or is discovered while a temporary
nuisance claim accrues anew upon each injury.” (Citation omitted) Rickel v.
Komaromi, 144 Conn. App. 775, 787 (2013).
Notes
The distinction between a private nuisance and a public nuisance formerly
had been a subject of some confusion in Connecticut. Pestey, however, laid
most of that confusion to rest. As the Court explained,
[p]ublic nuisance law is concerned with the interference with a
public right, and cases in this realm typically involve conduct
that allegedly interferes with the public health and safety . . . .
Private nuisance law, on the other hand, is concerned with conduct
that interferes with an individual’s private right to the use and
enjoyment of his or her land. Showing the existence of a condition
detrimental to the public safety, or, as the first two elements of
the four factor analysis discussed previously require, showing that
the condition complained of had a natural tendency to create a
continuing danger, is often irrelevant to a private nuisance claim.
Pestey v. Cushman, 259 Conn. 345, 357 (2002).
Though some treatises use “sweeping terms, our cases involving nuisances
almost uniformly have involved physical encroachments or disturbances
that were alleged to have interfered with the use and enjoyment of land, such
as runoff, odors, and noise.” Wellswood Columbia, LLC v. Town of Hebron,
327 Conn. 53, 80 (2017) (assuming arguendo that a road closure by a town
could constitute a private nuisance, but rejecting claim for other reasons).

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 1P-5 Private Nuisance

However, by statute, “[a]ll gambling premises are common nuisances and

shall be subject to abatement by injunction or as otherwise provided by
law. In any action brought under this subsection the plaintiff need not
show damage and may, in the discretion of the court, be relieved of all
requirements as to giving security.” Conn. Gen. Stat. § 53-278e(a).
A defendant does not have to own, control, or make use of the subject
property for a plaintiff to state a viable cause of action for private nuisance.
See Ugrin v. Town of Cheshire, 307 Conn. 364, 375 (2012). The Ugrin Court
“recognize[d] that the defendants in most private nuisance actions to date
have owned, controlled or used property from which the alleged nuisance
originated and that the court in Pestey observed that the proper focus of a
private nuisance claim for damages . . . is whether a defendant’s conduct, i.e.,
his or her use of . . . property, causes an unreasonable interference with the
plaintiff’s use and enjoyment of his or her property.” Ugrin, 307 Conn. at 376
(brackets and quotation marks omitted; ellipses in original). Nonetheless, the
proper focus of a private nuisance action—as opposed to a claim of public
nuisance—is “interference with the use and enjoyment of the plaintiff’s
property[,]” regardless of whether the defendant owned or controlled the
land. Id. at 377 (2012). However, “the interference must be substantial to
be unreasonable.” Argentinis v. Fortuna, 134 Conn. App. 538, 558 (2012)
(emphasis in original).
Rickel holds that “[i]f a nuisance is not abatable, it is considered permanent.”
144 Conn. App. at 788. Moreover, a “nuisance is deemed not abatable, even
if possible to abate, if it is one whose character is such that, from its nature
and under the circumstances of its existence, it presumably will continue
indefinitely . . . .” Thus,
[i]f a nuisance is not abatable, it is considered permanent, and a
plaintiff is allowed only one cause of action to recover damages
for past and future harm. The statute of limitations begins to run
against such a claim upon the creation of the nuisance once some
portion of the harm becomes observable. See . . . Restatement
(Second) of Torts § 899, [comment] d. A nuisance is deemed not
abatable, even if possible to abate, if it is one whose character
is such that, from its nature and under the circumstances of its
existence, it presumably will continue indefinitely . . . . However,
a nuisance is not considered permanent if it is one which can
and should be abated . . . . In this situation, every continuance
of the nuisance is a fresh nuisance for which a fresh action will
lie, and the statute of limitation will begin to run at the time of
each continuance of the harm.

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 Professional Malpractice1P-7

Id.
On the other hand, a “nuisance is not considered permanent if it is one which
can and should be abated . . . . In this situation, every continuance of the
nuisance is a fresh nuisance for which a fresh action will lie . . . .” (Citation
omitted) Id.
Some conditions constitute nuisances per se; others become so only in
respect to the time, place or manner of their performance. Day v. Perkins
Props., LLC, 190 Conn. App. 33, 38 (2019) (citing to Whitney v. Bartholomew,
21 Conn. 213, 217 (1851)). A nuisance per se exists where the condition is a
nuisance in any locality and under any conditions. Id. at 37. Alleging that
the condition complained of is a violation of local zoning ordinances alone
is insufficient to prove nuisance per se; however, the trial court may take the
local zoning ordinance in consideration in determining if the condition is a
nuisance based on the time, place or manner. Id. at 39.

1P-6 PRODUCTS LIABILITY

Products liability claims, including claims for manufacturing defect, design
defect and failure to warn, are now exclusively statutory in nature. See
Allard v. Liberty Oil Equipment Co., 253 Conn. 787, 800 (2000) (“It is now
beyond dispute that [the products liability statute, Conn. Gen. Stat. § 52-572m,
et seq.] provides the exclusive remedy for a claim falling within its scope,
thereby denying a claimant the option of bringing common law causes of
action for the same claim.”).
See PRODUCTS LIABILITY (DESIGN DEFECT) (Conn. Gen. Stat.
§§ 52-572m, et seq.), infra; PRODUCTS LIABILITY (MANUFACTURING
DEFECT) (Conn. Gen. Stat. §§ 52-572m, et seq.), infra.

1P-7 PROFESSIONAL MALPRACTICE

Malpractice is commonly defined as the failure of one rendering professional
services to exercise that degree of skill and learning commonly applied
under all the circumstances in the community by the average prudent
reputable member of the profession with the result of injury, loss, or damage
to the recipient of those services. Pelletier v. Galske, 105 Conn. App. 77, 81
(2007). While the professional’s degree of skill determines the nature of the
duty owed, a plaintiff still must prove a breach of that duty, causation and
damages in order to recover.
Statute of Limitations
Two years from the date the injury is first sustained or discovered or in the
exercise of reasonable care should have been discovered, and in no event more

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 1P-8 Promissory Estoppel

than three years from the date of the act complained of. Conn. Gen. Stat.
§ 52-584.
Notes
At least with respect to a claim for malpractice against an insurance broker,
a plaintiff is not required to allege or prove fraud or inequitable conduct in
order to establish a claim for professional malpractice. Byrd v. Ortiz, 136
Conn. App. 246, 252 (2012).
If a claim sounds in professional malpractice but does not allege negligence
in the rendering of professional services, it is a claim for ordinary negligence,
not malpractice. Thus, in a medical malpractice action the Appellate Court
has held that “the relevant considerations in determining whether a claim
sounds in medical malpractice are whether (1) the defendants are sued in
their capacities as medical professionals, (2) the alleged negligence is of a
specialized medical nature that arises out of the medical professional-patient
relationship, and (3) the alleged negligence is substantially related to medical
diagnosis or treatment and involved the exercise of medical judgment.”
Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.
App. 353, 357-58, appeal dismissed, 258 Conn. 711 (2001). See Perry v. Valerio,
167 Conn. App. 734, 738-39 (2016).
Connecticut does not recognize a claim for medical malpractice made by a
non-patient. Levin v. State, 329 Conn. 701 (2018).

1P-8 PROMISSORY ESTOPPEL

To prevail on a claim of promissory estoppel, a plaintiff must prove the
following elements:
1) A clear and definite promise by the defendant;
2) reasonable reliance on that promise by the plaintiff;
3) the defendant’s promise induced the action taken by the plaintiff
in reliance; and
4) injustice can be avoided only by enforcement of the defendant’s
promise.
Stewart v. Cendant Mobility Servs. Corp., 267 Conn. 96, 104-05 (2003).
Statute of Limitations
The statute of limitations applicable to a promissory estoppel action is
determined by the limitations period that would have governed a breach of
contract action based on the same facts. See Torringford Farms Ass’n, Inc. v.
City of Torrington, 75 Conn. App. 570, 576-78 (2003). For discussion of the

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two limitations statutes applicable to breach of contract actions, Conn. Gen.

Stat. §§ 52-576(a) & 52-581(a), see BREACH OF CONTRACT, supra.
Notes
Promissory estoppel is a “mutually exclusive” alternative to a breach of
contract claim “such that establishing the elements of one precludes liability
on the other . . . .” Meribear Prods., Inc. v. Frank, 328 Conn. 709, 721 (2018);
see Harley v. Indian Spring Land Co., 123 Conn. App. 800, 831 (2010) (court
rendered inconsistent judgment by finding in favor of plaintiff on both breach
of contract and promissory estoppel). In order for a promise to be enforceable
under the doctrine of promissory estoppel, there must be “a clear and definite
promise which a promisor could reasonably have expected to induce reliance.
Thus, a promisor is not liable to a promisee who has relied on a promise if,
judged by an objective standard, he had no reason to expect any reliance at
all.” D’Ulisse-Cupo v. Bd. of Directors of Notre Dame High School, 202 Conn.
206, 213 (1987). Consequently, “[a] mere expression of intention, hope, desire,
or opinion, which shows no real commitment, cannot be expected to induce
reliance.” TD Bank, N.A. v. Salce, 175 Conn. App. 757, 767 (2017) (statement
of “intent to contract in the future” not clear and definite promise).
It is not clear whether the defendant’s subjective intent is an essential element
of promissory estoppel. Some cases seem to hold that it is; others mention
only an objective standard. Compare Chotkowski v. State, 240 Conn. 246,
268 (1997) (defendant “must do or say something calculated or intended to
induce another party to believe that certain facts exist and to act on that
belief”) (emphasis added), with Stewart, 267 Conn. at 104 (“a promise which
the promisor should reasonably expect to induce action or forbearance”)
(emphasis added). The Appellate Court cases likewise go in both directions.
Compare Abbot Terrace Health Center, Inc. v. Parawich, 120 Conn. App. 78,
86-87 (2010) (“calculated or intended”), with Thibodeau v. Am. Baptist
Churches of Conn., 120 Conn. App. 666, 676-77, cert. denied, 298 Conn. 901
(2010) (“should reasonably expect”).
Connecticut courts have not yet decided whether a plaintiff may pursue a
promissory estoppel claim if the related contract claim would be barred by
the statute of frauds. McClancy v. Bank of Am., N.A., 176 Conn. App. 408,
414-15, cert. denied, 327 Conn. 975 (2017) (citing Glazer v. Dress Barn, Inc., 274
Conn. 33, 89-90 n.38 (2005)). However, “[t]he doctrine of equitable estoppel
accompanied by the doctrine of part performance on the contract . . . bars
the assertion of the statute of frauds as a defense.” McClancy, 176 Conn. App.
at 415.

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 1P-9 Psychotherapist—Failure to Warn of Dangerous Patient

1P-9 PSYCHOTHERAPIST—FAILURE TO WARN OF

DANGEROUS PATIENT
A psychotherapist may have a “limited duty” to warn a third party of a
dangerous patient in order to prevent the patient from harming the third
party if:
1) There is a special relationship of custody and control between
therapist and patient;
2) the patient has made specific threats of serious harm to an
identifiable individual;
3) the therapist has knowledge of these threats; and
4) it is foreseeable that the third party will be harmed if the
therapist does not take action to prevent such harm.
Fraser v. U.S., 236 Conn. 625, 632-34, cert. denied, 519 U.S. 872 (1996) (citing
Kaminski v. Fairfield, 216 Conn. 29, 33-34 (1990)).
Statute of Limitations
Two years from the date the injury is first sustained or discovered or in the
exercise of reasonable care should have been discovered, and in no event more
than three years from the date of the act complained of. Conn. Gen. Stat.
§ 52-584.
Notes
Fraser holds that there was no duty to warn under its facts, but leaves the
door open to the possibility that the right set of facts might create such a
duty. See Fraser, 236 Conn. at 627 (psychotherapists had no duty to exercise
control to prevent outpatient who was not known to have been dangerous
from inflicting bodily harm on victim who was neither readily identifiable
nor within the foreseeable class of victims). The Supreme Court cited Fraser
in a decision holding that a medical provider owes no duty to the plaintiff
to advise or warn the physician’s patient of the latent driving impairment
associated with her medical condition. Jarmie v. Troncale, 306 Conn. 578,
625 (2012).
In attempting to plead this cause of action, consideration should be given to
the Supreme Court’s decisions in Levin v. State, 329 Conn. 701 (2018) (holding
that the estate of a State psychiatric patient’s mother, killed by the patient,
does not have a cause of action against the State for failure to warn of the
patient’s violent tendencies, because the mother had no physician/patient
relationship), and Doe v. Cochran, 332 Conn. 325 (2019) (holding that an
identifiable third party may sue in common law negligence for alleged harm
caused by a doctor’s failure to provide accurate medical test reports to his
patient).

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1P-10 PUBLIC NUISANCE

To prevail in an action for a public nuisance, a plaintiff must establish the
following elements:
1) A condition on the defendant’s property with the natural
tendency to create danger and inflict injury upon person or
property;
2) that is of a continuing nature;
3) resulting from an unreasonable or unlawful use of the land; and
4) the existence of the nuisance proximately caused the plaintiff’s
damages.
Pestey v. Cushman, 259 Conn. 345, 355 (2002).
Statute of Limitations
While there is no appellate authority on point, most trial courts have held
that the limitations period for a public nuisance claim is three years from
the date of the act complained of. See Bourque v. Town of Enfield, 1994 WL
9967, at *2 (Conn. Super. Ct. Jan. 4, 1994) (citing Conn. Gen. Stat. § 52-577).
However, the court in Bourque notes that if the alleged nuisance is based
solely on a defendant’s negligent—i.e., unreasonable—use of his land, then
the shorter, two-year limitations period of Conn. Gen. Stat. § 52-584 might
control. Id. at *1-2.
Note, however, that in the context of a private nuisance claim, the Appellate
Court has recognized that the “nature of a nuisance as permanent or
temporary has an important bearing on the running of the statute of
limitations . . . . For limitations purposes, a permanent nuisance claim
accrues when injury first occurs or is discovered while a temporary nuisance
claim accrues anew upon each injury.” (Citation omitted) Rickel v. Komaromi,
144 Conn. App. 775, 787 (2013).
Generally, whether a nuisance is deemed to be continuing or
permanent in nature determines the manner in which the statute
of limitations will be applied . . . . If a nuisance is not abatable,
it is considered permanent, and a plaintiff is allowed only one
cause of action to recover damages for past and future harm.
The statute of limitations begins to run against such a claim
upon the creation of the nuisance once some portion of the
harm becomes observable. See . . . Restatement (Second) of
Torts § 899, [comment] d. A nuisance is deemed not abatable,
even if possible to abate, if it is one whose character is such that,
from its nature and under the circumstances of its existence, it
presumably will continue indefinitely . . . . However, a nuisance

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is not considered permanent if it is one which can and should be

abated . . . . In this situation, every continuance of the nuisance
is a fresh nuisance for which a fresh action will lie, and the statute
of limitation will begin to run at the time of each continuance
of the harm.”
Id. at 788.
Notes
A nuisance is a condition, “not the act or failure to act that creates it.” Fisk v.
Town of Redding, 164 Conn. App. 647, 653 (2016). Though “[a] public nuisance
is one that injures the citizens generally who may be so circumstanced as
to come within its influence[,]” Ganim v. Smith & Wesson Corp., 258 Conn.
313, 369 (2001), an injury must flow from the existence of the nuisance to
be causally connected to it. Id. at 370-71 (a public nuisance claim cannot
stand if “harms are nonetheless too remote”). Creation of an absolute public
nuisance makes the creator strictly liable, Fisk, 164 Conn. App. at 653, but it
requires proof “that the condition or conduct complained of interfered with a
right common to the general public[,]” and “that the defendants’ intentional
conduct, rather than their negligence, caused the condition deemed to be a
nuisance.” Smith v. Town of Redding, 177 Conn. App. 283, 287 (2017), cert.
denied, 327 Conn. 996 (2018).
A plaintiff claiming absolute public nuisance, rather than negligent public
nuisance, must prove in addition to the elements mentioned above: “(1) that
the condition or conduct complained of interfered with a right common to
the general public . . . and (2) that the alleged nuisance was absolute, that is,
that the defendants’ intentional conduct, rather than their negligence, caused
the condition deemed to be a nuisance.” Fisk v. Town of Redding, 190 Conn.
App. 99, 107 (2019) (citing to State v. Tippetts-McCarthy-Stratton, 204 Conn.
177, 183 (1987)).
See also PRIVATE NUISANCE, supra.

1P-11 PUBLIC SIDEWALK—LIABILITY OF ABUTTING OWNER

Absent a specific statute or municipal ordinance imposing liability on the
landowner, a landowner will not be liable for injuries to a third person caused
by the defective condition of a sidewalk abutting the landowner’s property.
Dreher v. Joseph, 60 Conn. App. 257, 261 (2000) (citing Willoughby v. New
Haven, 123 Conn. 446, 454 (1937)).
Several trial court decisions, however, have acknowledged the possibility
of liability on the part of the abutting landowner, even in the absence of an
authorizing statute or ordinance. These cases contemplate such liability

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 Quantum Meruit1Q-1

where the property owner specifically invites persons to enter or exit the
premises by using a sidewalk that it knows or should know is defective (where,
for example, the only entrance to a business requires an invitee to cross the
defective sidewalk). See Rosadini v. Sullivan, 2002 WL 318281 (Conn. Super.
Ct. Feb. 11, 2002); Major v. City of New London, 2000 WL 728872 (Conn.
Super. Ct. May 19, 2000). See Goldstein v. Cornell Brooklawn, LLC, 2014 WL
570458, at *4 (Conn. Super. Ct. Jan. 15, 2014) (citing numerous superior court
decisions on the subject).

1Q-1 QUANTUM MERUIT

In order to establish a claim for quantum meruit, a plaintiff must allege that:
1) The defendant knowingly accepted the services of the plaintiff;
2) the defendant represented to the plaintiff that she would be
compensated in the future;
3) that by such representation the defendant impliedly promised to
pay the plaintiff for the services rendered;
4) that the services were performed; and
5) that payment was not made.
Pollansky v. Pollansky, 162 Conn. App. 635, 658 (2016).
Statute of Limitations
Generally, six years after the right of action accrues. Conn. Gen. Stat.
§ 52-576. But see Maurer & Sheperd Joyners, Inc. v. Doherty, 2002 WL 1331882
(Conn. Super. Ct. May 13, 2002), applying a four-year limitation period under
the theory that “[w]here a party seeks equitable relief pursuant to a cause of
action that would also allow that party to seek legal relief, concurrent legal
and equitable jurisdiction exists, and the statute of limitations that would
be applicable to bar the legal claim also applies to bar the equitable claim.”
Maurer & Sheperd Joyners, Inc. v. Doherty, 2002 WL 1331882, at *2 (Conn.
Super. Ct. May 13, 2002) (citing Dowling v. Finley Assocs., Inc., 49 Conn.
App. 330, 335 (1998), rev’d on other grounds, 248 Conn. 364 (1999)).
Notes
“Literally translated, the phrase quantum meruit means as much as he
deserved.” Gianetti v. Rutkin, 142 Conn. App. 641, 647 (2013). “Quantum
meruit is the remedy available to a party when the trier of fact determines
that an implied contract for services existed between the parties, and
that, therefore, the plaintiff is entitled to the reasonable value of services
rendered.” Schreiber v. Conn. Surgical Grp., P.C., 96 Conn. App. 731,
737-38 (2006). Quantum meruit is “closely related” to unjust enrichment:

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Both “are noncontractual means of recovery in restitution. Quantum

meruit is a theory of recovery permitting restitution in the context of an
otherwise unenforceable contract. In contrast, recovery under a theory
of unjust enrichment applies in the absence of a quasi-contractual
relationship . . . . Because both doctrines are restitutionary, the same
equitable considerations apply to cases under either theory. The terms of
an unenforceable contract will often be the best evidence for restitution
of the reasonable value of services rendered in quantum meruit, although
sometimes the equities may call for a more restrictive measure.” Walpole
Woodworkers, Inc. v. Manning, 307 Conn. 582, 587 n.9 (2012). Thus, “[w]hile
unjust enrichment focuses on the propriety of a payee or beneficiary retaining
funds or a benefit, quantum meruit’s primary focus is on the value of services
rendered.” Parnoff v. Yuille, 139 Conn. App. 147, 155 n.7 (2012), cert. denied,
307 Conn. 956 (2013).
See also UNJUST ENRICHMENT, infra.
Because “lack of a remedy under a contract is a precondition to recovery
based on unjust enrichment or quantum meruit[,]” an express contract that
governs the actions for which a party seeks relief is a bar a claim of quantum
meruit. Ed Lally & Assocs., Inc. v. DSBNC, LLC, 145 Conn. App. 718, 735-36,
cert. denied, 310 Conn. 958 (2013) (citation omitted). Nonetheless, although “a
party cannot be held liable simultaneously for breach of an express contract
and an implied in law contract governing the same subject matter[,]” a
judgment for a plaintiff on both breach of contract and quantum meruit is
harmless if he “produced sufficient evidence to support the judgment under
either count.” 300 State, LLC v. Hanafin, 140 Conn. App. 327, 331-32 (2013).
On the other hand, the Supreme Court has held that the failure of a trial
court to rule on each of several available alternative theories may present
a final judgment problem. In Meribear Prods., Inc. v. Frank, 328 Conn. 709
(2018), the Court held that claims of breach of contract and quantum meruit
were legally inconsistent, so that a judgment on one established the trial
court’s decision on the other, resulting in a final judgment. But a claim for
enforcement of a foreign judgment is not inconsistent with a quantum meruit
claim, even where the foreign judgment and the quantum meruit claim stem
from an alleged breach of the same contract. As a result, the trial court’s
failure to rule on each of those claims means that the judgment is not final.
The fact that res judicata and collateral estoppel bar a plaintiff’s breach of
contract claim does not also doom his quantum meruit claim. See Pollansky,
162 Conn. App. at 657. However, if the statutory cap on attorney’s fees, see
Conn. Gen. Stat. § 51-251c, bars an attorney’s recovery for breach of contract,
he also is barred from recovery in quantum meruit. See Parnoff, 163 Conn.
App. at 277.

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1R-1 REFORMATION
The elements of an action for reformation of a contract are:
1) The existence of a written instrument;
2) that fails to conform to the parties’ actual agreement and does
not express their contractual intent;
3) due to a mutual mistake, or a unilateral mistake plus fraud or
inequitable conduct.
Lopinto v. Haines, 185 Conn. 527, 531 (1981); Kaplan v. Scheer, 182 Conn.
App. 488, 502, cert. denied, 330 Conn. 913 (2018).
Statute of Limitations
Reformation is an equitable remedy. Consequently, there is no statute of
limitations, but laches might act as a time bar in certain circumstances.
Notes
Like Macbeth’s dagger of the mind, reformation begins with a false creation –
namely, a “writing that memorializes [the parties’] agreement [but] is at
variance with the[ir] intent”. Kaplan, 182 Conn. App. at 502. A meeting of the
minds must precede the instrument that varies from it: Reformation “is not
granted for the purpose of alleviating a hard or oppressive bargain,” id., nor
can a court “supply an agreement which was never made, for it is its province
to enforce contracts, not to make or alter them.” Hoffman v. Fidelity &
Casualty Co., 125 Conn. 440, 443 (1939). To ensure that this is so, the burden
of proof for reformation is “clear, substantial and convincing evidence”.
Lopinto, 185 Conn. at 534 n.9.

1R-2 REPOSSESSION OF REAL PROPERTY

The elements of an action for repossession of real property are:
1) An ownership interest in real property by the plaintiff;
2) a contract leasing that property to the defendant;
3) a clause in the lease that requires the property to be used and
occupied for some specific purpose; and
4) a violation of that clause entitling the plaintiff to take back
possession of the property.
See World Props., Inc. v. First Nat’l Supermarkets, Inc., 1998 WL 292973,
at *3-4 (Conn. Super. Ct. June 3, 1998).
Statute of Limitations
See BREACH OF CONTRACT, supra.

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 1R-3Rescission

Notes
“[U]se and occupancy clauses have usually been held to be restrictive
rather than mandatory, at least in the absence of circumstances indicating
a contrary intention.” World Props., Inc. v. First Nat’l Supermarkets, Inc.,
1998 WL 292973, at *3 (Conn. Super. Ct. June 3, 1998). Therefore, the success
of claim for repossession by the owner-lessor generally will hinge on the
particular language of the lease clause at issue and the intent of the parties in
drafting that clause.

1R-3 RESCISSION
To prevail in an action for rescission of a contract, a plaintiff must establish:
1) A legal or equitable basis for rescinding the contract; and
2) that the plaintiff restored, or offered to restore, the defendant to
his former condition as nearly as possible.
See Leisure Resort Technology, Inc. v. Trading Cove Assocs., 277 Conn. 21, 32
(2006) [1]; Wallenta v. Moscowtiz, 81 Conn. App. 213, 223, cert. denied, 268
Conn. 909 (2004) [1]; Keyes v. Brown, 155 Conn. 469, 476 (1967) [2].
Statute of Limitations
The statute of limitations for a rescission action depends on the claimed basis
for the rescission. Many statutes that provide for rescission of a contract
contain their own, specified limitations periods.
Notes
Rescission “is an alternative to damages in an action for breach of
contract . . . . Rescission, simply stated, is the unmaking of a contract.” Little
Mountains Enters., Inc. v. Groom, 141 Conn. App. 804, 812 (2013) (ellipses
in original). Though rescission is a remedy, not a cause of action, parties
often plead it as the latter. See, e.g., Da Silva v. Ortiz, 2017 WL 2452990,
at *3 (Conn. Super. Ct. May 9, 2017). However, there must be an independent
basis to unmake the contract. Little Mountains, 141 Conn. App. at 812. Thus,
“[f]raud in the inducement of a contract ordinarily renders the contract
merely voidable at the option of the defrauded party, who also has the choice
of affirming the contract and suing for damages . . . . If he pursues the latter
alternative, the contract remains in force.” Whitney v. J.M. Scott Assocs.,
Inc., 164 Conn. App. 420, 432 (2016) (ellipsis in original). Rescission requires
the plaintiff to “restore or offer to restore the other party to his former
condition as nearly as possible.” Leisure, 277 Conn. at 41. There are numerous
potential grounds for rescission of a contract, including mutual mistake,
fraud, unconscionability, or certain statutory grounds. See id. at 32 (2006);

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 Respondeat Superior1R-4

Wallenta, 81 Conn. App. at 223; Bainer v. Citicorp Mortg., Inc., 236 Conn. 212,
213 (1996) (federal Truth in Lending Act).
If the basis is economic duress; see Traystman, Coric & Keramidas v. Daigle,
84 Conn. App. 843, 846 (2004); the would-be rescissioner must disavow
the contract “with reasonable promptness once the duress has ceased.”
Ace Equip. Sales, Inc. v. H.O. Penn Mach. Co., 88 Conn. App. 687, 698,
cert. denied, 274 Conn. 909 (2005) (noting that courts have found waiver of
rescission based on duress for delays of six months to two years).

1R-4 RESPONDEAT SUPERIOR

In order to plead a cause of action sounding in respondeat superior, the
plaintiff must allege:
1) That the employee was acting within the scope of his
employment;
2) that the employee was acting in furtherance of his employer’s
business; and
3) that the plaintiff suffered damage as a result.
Statute of Limitations
The Supreme Court has not specifically decided whether the limitation period
applicable to the claim against the employee will also be applicable to bar
the vicarious claim against the employer. Although a number of decisions
from other jurisdictions apply that rule, the Supreme Court assumed without
deciding in Zielinski v. Kotsoris, 279 Conn. 312, 319 n.9 (2006) that a vicarious
liability claim could proceed even though the claim against the employee was
time barred.
Notes
Under the doctrine of respondeat superior, an employer is vicariously liable
for the willful torts of his employee committed within the scope of the
employment and in the furtherance of the employer’s business. Mullen v.
Horton, 46 Conn. App. 759, 764 (1997); Pelletier v. Bilbiles, 154 Conn. 544,
547 (1967). It must be the affairs of the principal, and not solely the affairs of
the agent, which are being furthered in order for the doctrine of respondeat
superior to apply. A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn.
200, 208 (1990). “Unless the employee was activated at least in part by a
purpose to serve the principal, the principal is not liable.” Id. at 209-10. For
liability under 42 U.S.C. § 1983, “local governments are responsible only
for their own illegal acts . . . . They are not vicariously liable under § 1983
for their employees’ actions . . . . Plaintiffs who seek to impose liability on
local governments under § 1983 must prove that action pursuant to official

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 1R-4 Respondeat Superior

municipal policy caused their injury.” Edgewood St. Garden Apartments,

LLC v. City of Hartford, 163 Conn. App. 219, 231, cert. denied, 321 Conn. 903
(2016) (ellipses in original) (quoting Connick v. Thompson, 563 U.S. 51, 60
(2011)). Courts look to three factors to decide whether an employee’s conduct
was within the scope of his employment: whether it “(1) occurs primarily
within the employer’s authorized time and space limits; (2) is of the type
that the employee is employed to perform; and (3) is motivated, at least in
part, by a purpose to serve the employer.” Harp v. King, 266 Conn. 747, 782-
83 (2003). However, “[t]hat the servant disobeyed the orders of the master
is never a sufficient defense. It must be shown further that he ceased to act
for the master and in the course of his employment.” Son v. Hartford Ice
Cream Co., 102 Conn. 696, 701 (1925). Moreover, acting in the course of one’s
employment “means while engaged in the service of the master, and it is not
synonymous with the phrase ‘during the period covered by his employment.’”
2 Nat’l Place, LLC v. Reiner, 152 Conn. App. 544, 560, cert. denied, 314 Conn.
939 (2014).
In 2016, the Supreme Court held that hospitals may be “vicariously liable
under the doctrine of apparent agency” for the malpractice of nonemployee
doctors. Cefaratti v. Aranow, 321 Conn. 593, 611 (2016). After clarifying the
distinction between apparent agency and apparent authority, see id. at 605-
09 (the former creates a principal-agent relationship, while the latter expands
the scope of an agent’s power), the Court adopt[ed] the following alternative
standards for establishing apparent agency in tort cases. First, the plaintiff
may establish apparent agency by proving that: (1) the principal held itself
out as providing certain services; (2) the plaintiff selected the principal on
the basis of its representations; and (3) the plaintiff relied on the principal
to select the specific person who performed the services that resulted in the
harm complained of by the plaintiff. Second, the plaintiff may establish
apparent agency in a tort action by proving the traditional elements of the
doctrine of apparent agency, as set forth in our cases involving contract
claims, plus detrimental reliance. Specifically, the plaintiff may prevail by
establishing that: (1) the principal held the apparent agent or employee out
to the public as possessing the authority to engage in the conduct at issue,
or knowingly permitted the apparent agent or employee to act as having
such authority; (2) the plaintiff knew of these acts by the principal, and
actually and reasonably believed that the agent or employee or apparent
agent or employee possessed the necessary authority . . . and (3) the plaintiff
detrimentally relied on the principal’s acts, i.e., the plaintiff would not
have dealt with the tortfeasor if the plaintiff had known that the tortfeasor
was not the principal’s agent or employee. Id. at 624-25. Though the Court
“emphasize[d] that this standard is narrow, and we anticipate that it will

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 Slander of Title1S-3

be only in the rare tort action that the plaintiff will be able to establish the
elements of apparent agency by proving detrimental reliance[,]” id. at 625, the
Court did not limit its holding to hospitals, or to medical malpractice actions.

1S-1 SEXUAL HARASSMENT

Claims for sexual harassment generally are covered under Connecticut’s Fair
Employment Practices Act, Conn. Gen. Stat. § 46a-60. Several trial court
decisions have suggested, however, that the Act did not abrogate all common
law rights and that a plaintiff could make common law sexual harassment
claims, particularly where those claims are couched in traditional forms like
negligence, recklessness and breach of contract. See Stavena v. Sun Intern.
Hotels, Ltd., 2000 WL 994884 (Conn. Super. Ct. July 3, 2000), and cases cited
therein.

1S-2 SLANDER
See LIBEL, supra.

1S-3 SLANDER OF TITLE

To prove a claim for slander of title, a plaintiff must establish:
1) The publication of a false statement by the defendant that;
2) is derogatory to the plaintiff’s title;
3) was published with malice; and
4) caused special damages as a result of diminished value of the
plaintiff’s property in the eyes of third parties.
Gilbert v. Beaver Dam, 85 Conn. App. 663, 672-73 (2004), cert. denied, 272
Conn. 912 (2005).
Statute of Limitations
Three years from the date of the act complained of. Conn. Gen. Stat. § 52-577.
Chamerda v. Opie, 185 Conn. App. 627, 650 (2018).
Notes
Slander of title is an intentional tort. Bellemare v. Wachovia Mortg. Corp., 284
Conn. 193, 202-03 (2007). The publication must be false. Id. A refusal to speak
where there may be a contractual obligation to do so cannot form the basis of
a slander of title action because the “publication” element of a slander of title
claim is unsatisfied. Elm St. Builders, Inc. v. Enter. Park Condo. Ass’n, Inc.,
63 Conn. App. 657, 670 (2001). Bellemare also notes that the titleholder must
demand that the slanderer withdraw his impugnation on the title. Bellemare,

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284 Conn. at 202. Thus, “[a]n allegation that one who was slandered
demanded that the attachment be released, and the slanderer refused to do
so, is a necessary element for a slander of title claim.” GMAC Mortg., LLC v.
Tornheim, 2011 WL 5084226, at *5 (Conn. Super. Ct. Oct. 6, 2011).
In addition, “the plaintiff must have an estate or interest in the property
slandered. Pecuniary damages must be shown in order to prevail on such a
claim.” Gilbert, 85 Conn. App. at 672-73. By itself, “a clouded title” does not
establish harm; there must be evidence that the cloud caused a pecuniary
loss. Jepsen v. Camassar, 181 Conn. App. 492, 532, cert. denied, 329 Conn. 909
(2018).
Although there is no appellate authority on point, several superior court
decisions differentiate between a common-law action for slander of title and a
statutory action for slander of title under Conn. Gen. Stat. § 47-33j. See, e.g.,
Fountain Pointe, LLC v. Calpitano, 2012 WL 1435170, at *1-2 (Conn. Super. Ct.
Apr. 2, 2012); Marks v. Matuelvich, 2005 WL 531724, at *13 (Conn. Super. Ct.
Jan. 31, 2005). An action under § 47-33j has narrow parameters, see ACTION
FOR SLANDER OF TITLE, infra, and entitles the prevailing party to costs
and attorney’s fees.

1S-4 
SPOLIATION
See INTENTIONAL SPOLIATION OF EVIDENCE, supra.

1S-5 STATE ACTION IN VIOLATION OF CONSTITUTIONAL

RIGHTS OR IN EXCESS OF STATUTORY AUTHORITY
To prevail in a cause of action against the state for an action in violation of
constitutional rights or in excess of statutory authority, a plaintiff must prove:
1) An action by the state through one of its officers or officials;
2) that violated the plaintiff’s federal or state constitutional rights;
or
3) that was in excess of statutory authority; and
4) that entitles the plaintiff to declaratory or injunctive relief.
Horton v. Meskill, 172 Conn. 615, 624 (1977) [1, 2, 3]; Tuchman v. State, 89
Conn. App. 745, 753, cert. denied, 275 Conn. 920 (2005) [1, 2, 3, 4]; Braham v.
Newbould, 160 Conn. App. 294, 310 (2015).
Statute of Limitations
“[I]n analyzing whether a declaratory judgment action is barred by a
particular statutory period of limitations, a court must examine the
underlying claim or right on which the declaratory action is based.” Wilson v.

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Kelley, 224 Conn. 110, 116 (1992). Most actions in this class are tort-based.
Therefore, the appropriate limitations period is three years from the date of
the act complained of. See Conn. Gen. Stat. § 52-577.
Notes
As a general matter, “the state cannot be sued without its consent . . . . We
have also recognized that because the state can act only through its officers
and agents, a suit against a state officer [or agent] concerning a matter in
which the officer [or agent] represents the state is, in effect, against the
state . . . . Therefore, we have dealt with such suits as if they were solely
against the state and have referred to the state as the defendant.” Tuchman v.
State, 89 Conn. App. 745, 751, cert. denied, 275 Conn. 920 (2005) (quoting
Bloom v. Gershon, 271 Conn. 96, 107 (2004)).
By statute, actions against the state seeking money damages must proceed
through the office of the Claims Commissioner; “[o]therwise, the action must
be dismissed for lack of subject matter jurisdiction under the doctrine of
sovereign immunity.” Prigge v. Ragaglia, 265 Conn. 338, 349 (2003); see Conn.
Gen. Stat. §§ 4-141 to 4-165. Actions seeking declaratory or injunctive relief,
on the other hand, constitute a “limited exception” to sovereign immunity,
so long as one of two circumstances are present: (1) a clear “incursion upon
constitutionally protected interests”; or (2) facts that show action(s) in excess
of statutory authority. Tuchman v. State, 89 Conn. App. 745, 753-54, cert.
denied, 275 Conn. 920 (2005).

1S-6 STOLEN VEHICLE—LIABILITY OF OWNER FOR

INJURIES TO THIRD PARTIES
The owner of a stolen motor vehicle will be liable to a third party who is
injured by the vehicle while operated by the thief if:
1) The owner leaves his vehicle unattended or in such other
condition;
2) that it is reasonably foreseeable that the vehicle will be stolen;
3) and that injury of the kind suffered by the plaintiff is likely to
occur; and
4) the plaintiff is injured by such vehicle.
See Suglia v. Nat’l Credit Sys., Inc., 4 Conn. Cir. 133, 137 (1966) [1, 2];
Consiglio v. Ahern, 5 Conn. Cir. 304, 309-10 (1968) [3, 4].
Statute of Limitations
Two years from the date the injury is first sustained or discovered or in the
exercise of reasonable care should have been discovered, and in no event more

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 1S-7 Strict Liability for Ultrahazardous Activity

than three years from the date of the act complained of. Conn. Gen. Stat.
§ 52-584.
Notes
The Supreme Court discussed this cause of action, but did not identify
specific elements, in Smith v. Leuthner, 156 Conn. 422, 425 (1968). Among
the factors that are relevant to (though not necessarily dispositive of) the
determination of a duty of care in this context are: (1) where and when the
car was parked, (2) the proximity of that location to the defendant’s business,
(3) whether the motor was left running, (4) whether the defendant had a basis
to know that a potential thief was in the area, and (5) any notable past history
of automobile thefts or criminal activity in the area. Id.; see Ramsay v.
Camrac, Inc., 71 Conn. App. 314, 319, cert. denied, 261 Conn. 936 (2002) (issue
of fact as to defendant’s liability because lessee “left the . . . vehicle with
the keys in the ignition, out of her sight, running, open and unattended in
a crime-infested area of Waterbury”); Osso v. MARC Auto., Inc., 2015 WL
7941151, at *6 (Conn. Super. Ct. Nov. 10, 2015); Dontfraid v. Colony, 2008 WL
5481695, at *1 (Conn. Super. Ct. Dec. 8, 2008) (granting summary judgment
based on police report that vehicle was stolen and defendant reported it
before accident).

1S-7 STRICT LIABILITY FOR ULTRAHAZARDOUS ACTIVITY

To prevail in a cause of action for strict liability due to an ultrahazardous
activity, a plaintiff must prove:
1) The defendant engaged in an ultrahazardous activity;
2) that was the proximate cause of the plaintiff’s injuries.
Green v. Ensign-Bickford Co., 25 Conn. App. 479, 482-83, cert. denied, 220
Conn. 919 (1991).
Statute of Limitations
The statute of limitations for strict liability based on ultrahazardous activity
is three years from the date of the act complained of. See Conn. Gen. Stat.
§ 52-577.
Notes
Imposition of liability without fault requires:
an instrumentality capable of producing harm; circumstances
and conditions in its use which, irrespective of a lawful purpose
or due care, involve a risk of probable injury to such a degree
that the activity fairly can be said to be intrinsically dangerous to

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the person or property of others; and a causal relation between

the activity and the injury for which damages are claimed.
Caporale v. C.W. Blakeslee & Sons, Inc., 149 Conn. 79, 85 (1961). Connecticut
categorizes a very limited class of activities as “ultrahazardous”: blasting/
explosive demolition; pile-driving; and working with high-tension electrical
wires. See Reboni v. Case Bros., 137 Conn. 501, 503 (1951); Liss v. Milford
Partners, Inc., 2008 WL 4635981, at *4 (Conn. Super. Ct. Sept. 29, 2008).
However, there is nothing to prevent a court from expanding that class under
the right circumstances. In that regard, many Connecticut cases cite the
Restatement test for ultrahazardousness:
The factors for a court to consider in determining whether
an activity is abnormally dangerous are listed in § 520 of the
Restatement as: (a) existence of a high degree of risk of some
harm to the person, land or chattels of others; (b) likelihood
that the harm that results from it will be great; (c) inability to
eliminate the risk by the exercise of reasonable care; (d) extent
to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is
carried on; and (f) extent to which its value to the community is
outweighed by its dangerous attributes.
Green, 25 Conn. App. at 485-86 (citing 3 Restatement (Second) of Torts,
§ 520).
“The rule of strict liability for engaging in ultrahazardous activities does not
apply where the person harmed has reason to know of the risk that makes the
activity ultrahazardous and takes part in it or brings himself within the area
which will be endangered by its miscarriage.” Anchundia v. Northeast Utilities
Service Co. 2010 WL 2400154, at *4 (E.D. New York, June 11, 2010) (citing
Heaslip v. Mota’s Sewer Service, LLC, 2007 WL 3121763, at *4 (Conn. Super.
Ct. Oct. 15, 2007)). Operating a shooting range is not an ultrahazardous
activity. See Rokicki v. Putnam Fish & Game Club, Inc., 2012 WL 2334786,
at *3-5 (Conn. Super. Ct. May 21, 2012). Likewise, “there is no strict liability
for injuries caused by domestic animals under the common law of this state,
even if the animal had known mischievous propensities.” Vendrella v. Astriab
Family Ltd. P’ship, 311 Conn. 301, 315 (2014) (citing Bischoff v. Cheney, 89
Conn. 1, 4 (1914)); see Baca v. Ferriolo, 2016 WL 3202534, at *4 (Conn. Super.
Ct. May 18, 2016). Electric utility company activity connected with providing
electric service is not ultrahazardous activity for the purposes of finding strict
liability. Rodriguez Feitosa v. K.T.I. Util. Constr. & Maint., LLC, 2019 WL
994318 (Conn. Super. Ct. Jan. 24, 2019).

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 1S-8 Students—Liability of Teachers or Administrators for Harm

1S-8 STUDENTS—LIABILITY OF TEACHERS OR

ADMINISTRATORS FOR HARM
While a teacher or administrator theoretically will be liable for harm caused
by a student to a third party or another student under a simple negligence
theory—i.e., where it is reasonably foreseeable that harm will result (see
Negligence)—teachers and administrative personnel at public schools
generally are protected by a limited governmental immunity. Connecticut law
recognizes three exceptions to such immunity:
The immunity from liability for the performance of discretionary
acts by a municipal employee is subject to three exceptions or
circumstances under which liability may attach even though
the act was discretionary: first, where the circumstances make
it apparent to the public officer that his or her failure to act
would be likely to subject an identifiable person to imminent
harm . . . second, where a statute specifically provides for a
cause of action against a municipality or municipal official for
failure to enforce certain laws . . . and third, where the alleged
acts involve malice, wantonness or intent to injure, rather than
negligence.
Colon v. Bd. of Educ., 60 Conn. App. 178, 180-81, cert. denied, 255 Conn. 908
(2000) (citations omitted; internal quotation marks omitted).
The first exception, the “identifiable person—imminent harm” exception, has
been the basis for several negligence claims. See Doe v. Bd. of Educ. of the
City of New Haven, 76 Conn. App. 296 (2003); Purzycki v. Fairfield, 244 Conn.
101, 108-09 (1998).
In the absence of an immunity claim, the Supreme Court has held that “it is
beyond dispute that, as a general matter, a school having custody of minor
children has an obligation to use reasonable care to protect those children
from foreseeable harms during school sponsored activities . . .” Munn v.
Hotchkiss Sch., 326 Conn. 540, 555 (2017). In Munn, the Court responded to
a question certified by the United States Court of Appeals for the Second
Circuit by concluding that the public policy of Connecticut supports
imposing a duty on a school to warn or protect students against the risk of a
serious insect-borne disease when it organizes a trip abroad.
Statute of Limitations
Two years from the date the injury is first sustained or discovered or in the exercise
of reasonable care should have been discovered, and in no event more than three
years from the date of the act complained of. Conn. Gen. Stat. § 52-584.

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 Tortious Interference with Business Expectancies1T-2

Notes
For an in-depth discussion of the potential liability of a school to its students,
see Munn v. Hotchkiss Sch., 326 Conn. 540 (2017). The Supreme Court “has
construed the identifiable person-imminent harm exception to apply not only
to identifiable individuals but also to narrowly defined identified classes of
foreseeable victims . . . . Moreover, [the court has] established specifically that
schoolchildren who are statutorily compelled to attend school, during school
hours on school days, can be an identifiable class of victims.” Doe v. Bd. of
Educ. of the City of New Haven, 76 Conn. App. 296, 301 (2003) (citing Purzycki v.
Fairfield, 244 Conn. 101, 108-09 (1998)). For a discussion of the meaning of the
term “imminent,” see Haynes v. City of Middletown, 314 Conn. 303, 305 (2014).

1T-1 TENANT—UNLAWFUL POSSESSION (SUMMARY

PROCESS)
In a summary process action based upon nonpayment of rent (or the passage
of time), a landlord must prove:
1) On or about a certain date, the landlord and the tenant
entered into an oral or written lease/rental agreement for a weekly/
monthly/yearly term for use and occupancy of a certain premises;
2) the tenant agreed to pay an agreed-upon rent by a certain date;
3) the tenant took possession of the premises pursuant to the lease;
4) the tenant failed to pay the rent due under the lease by a certain
date (or the lease has expired due to the passage of time);
5) the landlord caused a proper notice to quit possession to be
served on the tenant to vacate the premises on or before a certain
termination date; and
6) although the time given in the notice to quit possession of the
premises has passed, the tenant remains in possession of the
premises.
Notes
See also Conn. Gen. Stat. § 47a-23(a)(1)(D).

1T-2 TORTIOUS INTERFERENCE WITH BUSINESS

EXPECTANCIES
“[I]n order to recover for a claim of tortious interference with business
expectancies, the claimant must plead and prove that:
1) A business relationship existed between the plaintiff and another
party;

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 1T-2 Tortious Interference with Business Expectancies

2) the defendant intentionally interfered with the business

relationship while knowing of the relationship; and
3) as a result of the interference, the plaintiff suffered actual loss.”
Lawton v. Weiner, 91 Conn. App. 698, 706 (2005).
Statute of Limitations
The statute of limitations for tortious interference with business relationships
is three years from the date of the act complained of. Conn. Gen. Stat.
§ 52-577. See Maderia v. Northeast Utilities Service Co., 2004 WL 2943473,
38 Conn. L. Rptr. 286 (Conn. Super. Ct. 2004) (Quinn, J.).
Notes
“Not every act that disturbs a contract or business expectancy is
actionable . . . . An action for intentional interference with business relations
requires the plaintiff to plead and prove at least some improper motive or
improper means . . . . The plaintiff . . . must demonstrate malice on the part
of the defendant, not in the sense of ill will, but intentional interference
without justification.” Daley v. Aetna Life & Cas. Co., 249 Conn. 766, 805-06
(1999) (citations and internal quotation marks omitted). A defendant does
not have to prove that its actions were justified; under Connecticut law, “the
employee bears the burden of alleging and proving lack of justification” on
the part of the defendant.” Varley v. First Student, Inc., 158 Conn. App. 482,
503 (2015). For example, a defendant is entitled to judgment as a matter of
law if an allegedly defamatory statement that forms the basis for a tortious
interference claim is true. See Gerrish v. Hammick, 198 Conn. App. 816, 837-
38S (2020) (affirming summary judgment for defendant). However, a series
of acts that are individually innocuous may form the basis for a tortious
interference claim if, collectively, those acts further a tortious scheme. See
American Diamond Exch., Inc. v. Alpert, 101 Conn. App. 83, 92-93, cert.
denied, 284 Conn. 901 (2007). For a useful discussion of the causation
element of tortious interference in the context of the recording industry,
see Robinson v. Robinson, 103 Conn. App. 69 (2007). Examples of improper
conduct include “fraud, misrepresentation, intimidation or molestation . . . or
that the defendant acted maliciously.” Reyes v. Chetta, 143 Conn. App. 758,
764 (2013). Section 767 of the Restatement (Second) of Torts lists seven factors
that are relevant to the impropriety of a defendant’s motive or means: “(a) the
nature of the actor’s conduct, (b) the actor’s motive, (c) the interests of the
other with which the actor’s conduct interferes, (d) the interests sought to be
advanced by the actor, (e) the social interests in protecting the freedom of
action of the actor and the contractual interests of the other, (f) the proximity
or remoteness of the actor’s conduct to the interference and (g) the relations
between the parties.” Id. (quoting 4 Restatement (Second), Torts § 767 (1979)).

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 Tortious Interference with Contractual Relations1T-3

“[A]n award of compensatory damages is not necessary to establish a cause

of action for tortious interference as long as there is a finding of actual loss,
and a finding of actual loss may support an award of punitive damages.”
Rendahl v. Peluso, 173 Conn. App. 66, 98 (2017) (quoting Hi-Ho Tower, Inc. v.
Com-Tronics, Inc., 255 Conn. 20, 34 (2000)). If a plaintiff claims lost profits
as a result of the defendant’s alleged interference, the plaintiff must prove
the amount of damages with reasonable certainty. The amount of profit the
tortfeasor made from the endeavor, for example, will not necessarily establish
the amount of lost profits by the plaintiff. American Diamond Exch., Inc. v.
Alpert, 302 Conn. 494 (2011). See TORTIOUS INTERFERENCE WITH
CONTRACTUAL RELATIONS, infra. Likewise, the “mere possibility
of . . . making a profit” is insufficient. Villages, LLC v. Longhi, 187 Conn.
App. 132, 147 (2019) (requiring “a reasonable probability that the plaintiff
would have entered into a contract or made a profit”). Nonetheless, “even
unenforceable promises, which the parties might voluntarily have performed,
are entitled to be sheltered from wrongful interference.” Kelly v. Kurtz, 193
Conn. App. 507, 531 (2019).

1T-3 TORTIOUS INTERFERENCE WITH CONTRACTUAL

RELATIONS
Like its fraternal twin, see TORTIOUS INTERFERENCE WITH
BUSINESS RELATIONSHIPS, supra, tortious interference with contractual
relations requires proof of:
1) A contractual or beneficial relationship;
2) the defendant’s knowledge of that relationship;
3) intentional interference with the relationship that is tortious in
nature; and
4) that the interference caused the plaintiff to suffer an actual loss.
Loiselle v. Browning & Browning Real Estate, LLC, 147 Conn. App. 246, 259
(2013) (quoting Appleton v. Bd. of Educ. of the Town of Stonington, 254 Conn.
205, 212-13 (2000)).
Statute of Limitations
Three years from the date of the act complained of. See Conn. Gen. Stat.
§ 52-577.
Notes
Tortious interference with contractual relations is so nearly identical to
tortious interference with business relationships that they may simply be
different iterations of the same cause of action. For both, interference alone
will not suffice; a plaintiff must prove “at least some improper motives or

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 1T-4 Trees—Damage to Neighboring Property

improper means . . . [such that the] interference resulting in injury to another

is wrongful by some measure beyond the fact of the interference itself.”
Loiselle, 147 Conn. App. at 260. Likewise, for both, actual loss demands
proof “that, except for the tortious interference of the defendant, there was a
reasonable probability that the plaintiff would have entered into a contract
or made a profit.” Coppola Const. Co. v. Hoffman Enterprises Ltd. P’ship, 157
Conn. App. 139, 188, cert. denied, 318 Conn. 902 (2015).
A plaintiff does not have to “prove that a contract was in fact breached in
order to recover on a claim of tortious interference.” Landmark Inv. Grp.,
LLC v. CALCO Const. & Dev. Co., 318 Conn. 847, 866 (2015). Indeed, “even
a total repudiation of a contract may not terminate contractual relations
when the nonbreaching party elects to insist on specific performance of the
agreement, and specific performance is so ordered.” Id.

1T-4 TREES—DAMAGE TO NEIGHBORING PROPERTY

1) One who maintains a tree on his property;
2) in such condition as to pose a danger to persons on neighboring
land;
3) who knows or reasonably should know of such condition;
4) is liable for damages if a portion of the tree falls onto the
adjoining property.
Cordeiro v. Rockville General Hosp., Inc., 2007 WL 2570406 (Conn. Super. Ct.
Aug. 21, 2007).
Statute of Limitations
Two years from the date the injury is first sustained or discovered or in the
exercise of reasonable care should have been discovered, and in no event more
than three years from the date of the act complained of. Conn. Gen. Stat.
§ 52-584.
Notes
Conn. Gen. Stat. §§ 23-59 and 23-65(b), vesting exclusive control in a town
tree warden over trees located in whole or in part in public roadways,
precludes the liability of a private landowner for injuries resulting from such
a tree falling in the roadway. Muratori v. Stiles & Reynolds Brick Co., 128
Conn. 674-75 (1942). Where the town has timely notice of the unsafe condition
of the tree, liability of the private landowner will be precluded even where the
landowner previously took action which directly caused the deterioration of
the tree. Kondrat v. Town of Brookfield, 97 Conn. App. 31, 39 (2006) (citing
Muratori, 128 Conn. at 674). Although older cases only imposed liability for
trees intentionally planted and maintained by the landowner, as opposed

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 Trespass1T-5

to trees naturally occurring on the property, modern law makes no such

distinction.

1T-5 TRESPASS
The elements for a claim of trespass are:
1) Ownership or possessory interest in land by the plaintiff;
2) an intentional invasion, intrusion, or entry by the defendant
affecting the plaintiff’s exclusive possessory interest; and
3) direct injury to the plaintiff’s land, or possessory interest therein.
Boyne v. Town of Glastonbury, 110 Conn. App. 591, 601, cert. denied, 289
Conn. 947 (2008).
Statute of Limitations
The statute of limitations for a claim of trespass is three years. Conn. Gen.
Stat. § 52-577; see Connecticut Light & Power Co. v. Tilcon Conn., Inc., 2009
WL 242356, at *3 (Conn. Super. Ct. Jan. 7, 2009). For a permanent trespass,
a cause of action accrues from the date of the trespass, but for a continuing
trespass, “each day a trespass of this type continues, a new cause of action
arises,” so the statute of limitations runs from each new instance. Rickel v.
Komaromi, 144 Conn. App. 775, 788-89 (2013).
Notes
The same act, or series of acts, may form the basis for both a trespass claim
and a nuisance claim. The primary distinction between the two is that a
trespass involves an interference with a plaintiff’s exclusive possessory
interest in real property, while a nuisance involves an interference with a
plaintiff’s use or enjoyment of real property. Boyne, 110 Conn. App. at 599-
600 (citing 4 Restatement (Second) of Torts, § 821D). However, the trespasser
must act; in general, a mere failure to “remedy a situation, when under a duty
to do so, that resulted in a property invasion[,]” does not trigger liability.
JMS Newberry, LLC v. Kaman Aerospace Corp., 149 Conn. App. 630, 641,
cert. denied, 312 Conn. 915 (2014) (alleged failure to “remedy” grading of land
that caused water to flow onto neighbor’s property insufficient to establish
a trespass). A “continuing trespass” is an exception because if a “defendant
erects a structure or places something on or underneath the plaintiff’s land,
the defendant’s invasion continues if he fails to stop the invasion and to
remove the harmful condition.” Rickel, 144 Conn. App. at 788.
Proof of an “exclusive possessory interest” requires proof of either actual, or
constructive, possession of the real property subject to the trespass. See Lin v.
Nat’l Railroad Passenger Corp., 277 Conn. 1, 20 (2006) (actual possession
requires proof of exclusive possession and control; constructive possession

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 1T-6 Trespass to Personal Property

requires proof of ownership and that no one else had possession). An “entry
upon property with permission of the owner, absent subsequent acts of abuse,
is a defense to a claim of trespass[,]” Geiger v. Carey, 170 Conn. App. 459, 482
(2017), but does not have to be pled as a special defense. See Practice Book
§ 10-50. At least one trial court has held that “no action in trespass can be
maintained against a tenant who was in lawful possession of the premises at
the time when the conduct at issue occurred.” Caron v. URS Se., Inc., 2015
WL 5136074, at *4 (Conn. Super. Ct. July 30, 2015); but see SVS II P’ship v.
Patel, 2010 WL 625801, at *3-4 (Conn. Super. Ct. Jan. 14, 2010) (holding
commercial tenant liable for trespass). Both Caron and SVS are environmental
contamination cases. The distinction between them—according to Caron,
at any rate—is whether the contaminant migrates from the leasehold to the
landowner’s property. See Caron, 2015 WL 5136074, at *3. If only monetary
damages are sought, then possession is measured at the time of the trespass;
however, injunctive relief requires proof of continuing possession at the time
when the injunction is to be entered. Boyne, 110 Conn. App. at 601-02. In
addition, “the intrusion of the property [must] be physical and accomplished
by a tangible matter. Thus, in order to be liable for trespass, one must
intentionally cause some substance or thing to enter upon another’s land.”
City of Bristol v. Tilcon Minerals, Inc., 284 Conn. 55, 88 (2007). However,
“[a] trespass may be committed on, beneath or above the surface of the earth,
which includes soil, water, trees, and other growths . . . . A trespass need not
be inflicted directly on another’s realty, but may be committed by discharging
foreign polluting matter at a point beyond the boundary of such realty.” Id.
(internal citation and quotation marks omitted).

1T-6 TRESPASS TO PERSONAL PROPERTY

Early common law referred to torts dealing with personal property as
“trespass” to the property. Modern actions for damage resulting from such
trespass are covered in Connecticut by the statutory right of Replevin (Conn.
Gen. Stat. § 52-515) and by the common law action for Conversion. See
REPLEVIN OF GOODS, infra; CONVERSION, supra.

1U-1 UNJUST ENRICHMENT

To establish a claim of unjust enrichment, a plaintiff must prove:
1) The defendant received a benefit from the plaintiff;
2) for which the defendant unjustly did not pay; and
3) the defendant’s failure to pay for that benefit was to the plaintiff’s
detriment.

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 Unjust Enrichment1U-1

Weisman v. Kaspar, 233 Conn. 531, 550 (1995).

Statute of Limitations
“[U]njust enrichment is not a legal claim sounding in either tort or contract—
it is an equitable claim for relief. As an equitable claim, its timeliness is not
subject to a statute of limitations but, rather, to the equitable doctrine of
laches.” Reclaimant Corp. v. Deutsch, 332 Conn. 590, 613 (2019).
Reclaimant Corp., which applies Delaware substantive law, but Connecticut
law with respect to the statute of limitations, helpfully explains when a
statute of limitations is substantive and when it is procedural for choice of law
purposes. See id. at 603-07.
The time in which to file a Delaware unjust enrichment action (in a
Connecticut court) is a matter of judicial administration and procedure that
is controlled by Connecticut law. Therefore, Connecticut law governs the
timeliness of the plaintiff’s claims. Reclaimant Corp., 332 Conn. 590, 611 (2019).
Notes
Unjust enrichment, like quantum meruit, is a common-law principle of
restitution that permits recovery in the absence of a valid contract between
the parties. See Marlin Broadcasting, LLC v. Law Office of Kent Avery, LLC,
101 Conn. App. 638, 648 (2007). Because unjust enrichment is an equitable
remedy, the existence of an adequate legal remedy for the same conduct—
such as breach of contract—will bar an unjust enrichment claim. See
Russell v. Russell, 91 Conn. App. 619, 637, cert. denied, 276 Conn. 924 (2005).
Whether a defendant has unjustly enriched itself ordinarily is a question of
fact on which a trial court has wide latitude. See Horner v. Bagnell, 324 Conn.
695, 708 (2017) (“we ordinarily engage in a deferential review of the trial
court’s conclusion that the defendant was unjustly enriched”).
The crux of an unjust enrichment claim is that “in a given situation it is
contrary to equity and good conscience for one to retain a benefit which
has come to him at the expense of another.” Meaney v. Conn. Hosp. Ass’n,
Inc., 250 Conn. 500, 511 (1999). However, the “broad and flexible” nature of
this remedy, id., lends itself to abuse. As a result, a court must examine the
circumstances and conduct of the parties in a given situation to determine
a just result. Id. This is a “highly fact-intensive inquiry . . . .” Gagne v.
Vaccaro, 255 Conn. 390, 409 (2001). The enrichment does not have to be
intentional; a benefit conferred on a defendant due to an error may support
a claim for unjust enrichment. See Hospital of Central Conn. v. Neurosurgical
Assocs., P.C., 139 Conn. App. 778, 788 (2012) (genuine issue of material fact
whether defendant was unjustly enriched due to erroneous “payments to
the defendant totaling $66,666.64 following the termination of the parties’
contract”). In general, however, “for the benefit to be unjust, the defendant

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 1U-2 Use of Land Causing Damage or Interference

must have solicited it.” Levinson v. Lawrence, 162 Conn. App. 548, 559 (2016).
In addition, the fact that res judicata and collateral estoppel bar a plaintiff’s
breach of contract claim does not also doom his unjust enrichment claim. See
Pollansky v. Pollansky, 162 Conn. App. 635, 657 (2016).
Nonetheless, it must be unjust for the defendant to retain the benefit and
not merely detrimental for the plaintiff to have conferred it. See Town of
Stratford v. Wilson, 151 Conn. App. 39, 50, cert. denied, 314 Conn. 911 (2014)
(assuming arguendo that former employee’s “‘cash-out’ was a detriment to the
town, the town’s claim on appeal founders because the town failed to prove
that the defendant was unjustly benefited”). In the construction context, it is
not unjust enrichment for a property owner to benefit from a subcontractor’s
labor and materials “absent fraud and provided that the property owner pays
the general contractor in full for the subcontractor’s services.” Nation Elec.
Contracting, LLC v. St. Dimitrie Romanian Orthodox Church, 144 Conn.
App. 808, 817 (2013).

1U-2 USE OF LAND CAUSING DAMAGE OR INTERFERENCE

A landowner who makes use of his land in such a way as to damage or
interfere with the land of another will be liable under traditional theories of
Negligence, Recklessness, Intentional Tort, Trespass and Nuisance, among
others. For a discussion of the modern application of Trespass and Nuisance
with respect to the flow of water from the property of one landowner causing
damage to the property of another [a circumstance unique to land claims], see
Boyne v. Glastonbury, 110 Conn. App. 591, 600-01 (2008); Day v. Gabriele, 101
Conn. App. 335, 345, cert. denied, 284 Conn. 902 (2007).
Notes
A plaintiff is required only to prove that the defendant’s conduct was a
proximate cause of the plaintiff’s damages, the plaintiff need not allege or
prove that the defendant in any given case owned or controlled the land
that gave rise to an interference with the use and enjoyment of the plaintiff’s
property. Ugrin v. Town of Cheshire, 307 Conn. 364, 377 (2012).

1V-1 VENEREAL DISEASE—NEGLIGENT TRANSMISSION

1) A person who knows or reasonably should know that he has a
sexually transmittable disease;
2) has a duty to warn or to take steps to avoid contact with others;
3) and if such person fails to warn or to take reasonable steps to
prevent contact;
4) he will be liable for damage resulting from such contact.

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 Vexatious Litigation (Common-Law)1V-2

Cerniglia v. Levasseur, 1995 WL 500673 (Conn. Super. Ct. Aug. 15, 1995).
Statute of Limitations
Two years from the date the injury is first sustained or discovered or in the
exercise of reasonable care should have been discovered, and in no event
more than three years from the date of the act complained of. Conn. Gen.
Stat. § 52-584; see Burke v. Klevan, 130 Conn. App. 376, 379, cert. denied, 302
Conn. 936 (2011), cert. denied, 132 S. Ct. 1637 (2012) (plaintiff’s claims against
ex-girlfriend for infecting him with HPV and genital herpes “accrued no later
than the day that he was informed of her infections”).
Notes
A cause of action will also flow from intentional or reckless exposure, and
may be made against a person who indirectly exposed the plaintiff to the
disease, if it was reasonably foreseeable that such exposure would result
from the defendant’s action. See Cerniglia, 1995 WL 500673, and cases cited
therein. At least one superior court has held that the failure of an individual
with a venereal disease to warn or take steps to avoid contact with his spouse
is a relevant factor with respect to the cause for the breakdown of a marriage
in a dissolution action. Craig v. Craig, 2006 WL 3860828 (Conn. Super. Ct.
Dec. 14, 2006).

1V-2 VEXATIOUS LITIGATION (COMMON-LAW)

To prevail on a claim of common-law vexatious litigation, a plaintiff must
establish:
1) That a civil action was commenced against him;
2) without probable cause;
3) with malice; and
4) that the action was terminated in the plaintiff’s favor.
Falls Church Grp., Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 94
(2007).
Statute of Limitations
The statute of limitations for a claim of common-law vexatious litigation
is three years. Conn. Gen. Stat. § 52-577; see Gianetti v. Greater Bridgeport
Individual Practice Ass’n, 2005 WL 2078546 (Conn. Super. Ct. July 21, 2005).
Notes
Though vexatious litigation requires commencement of a civil action, the
defendant does not have to be the commencer. See Diamond 67, LLC v. Oatis,
167 Conn. App. 659, 681-82, cert. denied, 323 Conn. 927 (2016) (citing Bhatia v.
Debek, 287 Conn. 397 (2008)). It is enough if the defendant vexatiously began,

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continued, or procured civil proceedings before a tribunal “that has power

to take action adversely affecting the legally protected interests of the other.”
Diamond 67, 167 Conn. App. at 681.
The sine qua non of probable cause “is a bona fide belief in the existence
of the facts essential under the law for the action and such as would
warrant a person of ordinary caution, prudence and judgment, under the
circumstances, in entertaining it.” Byrne v. Burke, 112 Conn. App. 262,
274, cert. denied, 290 Conn. 923 (2009). The standard for probable cause
is the same if the defendant is an attorney or law firm or a lay person. See
Enbalmers’ Supply Co. v. Giannitti, 103 Conn. App. 20, 34, cert. denied, 284
Conn. 931 (2007). While “[m]alice may be inferred from lack of probable
cause . . . [t]he want of probable cause, however, cannot be inferred from the
fact that malice was proven.” Falls Church, 281 Conn. at 94. The existence
of probable cause constitutes “absolute protection” against a vexatious
litigation claim, id., but the absolute immunity for statements made during
litigation does not bar a subsequent vexatious litigation suit. See Villages,
LLC v. Longhi, 166 Conn. App. 685, 695 n.7 (2016), cert. denied, 323 Conn. 915
(2016). In addition, “[a]dvice of counsel is a complete defense to an action of
malicious prosecution or vexatious suit[.]” Diamond 67, 167 Conn. App. 659
at 689. To establish this defense, a defendant must prove that he “instituted
his civil action relying in good faith on such advice, given after a full and fair
statement of all facts within his knowledge, or which he was charged with
knowing. The fact that the attorney’s advice was unsound or erroneous will
not affect the result.” Id. at 690; see Verspyck v. Franco, 274 Conn. 105, 112
(2005) (defendant has burden of proof).
A claim for vexatious litigation does not accrue until the entire underlying
suit has terminated in the plaintiff’s favor. See Scalise v. E. Greyrock, LLC,
148 Conn. App. 176, 184, cert. denied, 311 Conn. 946 (2014). Even if a plaintiff
has triumphed on some counts in the underlying suit, he cannot commence
a vexatious litigation action piecemeal. See id. Likewise, “a counterclaim
alleging vexatious litigation may not be brought in the same action as that
which the defendant claims is vexatious.” U.S. Bank Nat’l Ass’n v. Bennett,
195 Conn. App. 96, 104 (2019).
Damages for vexatious litigation typically are the cost of having to defend the
vexatious suit and the harm to one’s reputation. See Greene v. Keating, 197
Conn. App. 447, 454 (2020). When a meritorious claim and a meritless one
were brought in one suit, a plaintiff must prove the damages attributable to
the meritless claim with reasonable certainty. See id. at 453. A plaintiff may
recover attorney’s fees in a common-law vexatious litigation action, but only
if there is a finding “both [1] that the litigant’s claims were entirely without

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color and [2] that the litigant acted in bad faith.” Lederle v. Spivey, 174 Conn.
App. 592, 602 (2017) (emphasis in original).
Federal law impliedly preempts a claim for vexatious litigation based on the
initiation of an adversarial bankruptcy proceeding. See Metcalf v. Fitzgerald,
333 Conn. 1, 6 (2019), cert. denied, 140 S. Ct. 854 (2020) (noting sanctions and
penalties under Bankruptcy Code for initiating groundless proceedings).

1V-3 
VICARIOUS LIABILITY
A claim for vicarious liability requires proof that:
1) An agent of the defendant;
2) committed a tortious act; and
3) that harmed the plaintiff.
See Cefaratti v. Aranow, 321 Conn. 593, 607-10 (2016).
Statute of Limitations
The Supreme Court has not specifically decided whether the limitation period
applicable to the underlying claim will also be applicable to bar the vicarious
claim against the employer. Although a number of decisions from other
jurisdictions apply that rule, the Supreme Court assumed, without deciding
in Zielinski v. Kotsoris, 279 Conn. 312, 319 n.9 (2006), that a vicarious liability
claim could proceed even though the claim against the employee was time
barred.
Notes
Under Connecticut law, the vicarious liability of one party for the tortuous
conduct of another party may arise under several common law and statutory
theories; most involve an agency relationship between the parties. Though
actual agency is the most common basis for vicarious liability, “both the
doctrine of apparent authority and the doctrine of apparent agency may
be applied in tort actions.” Cerfaratti, 321 Conn. at 609. “The doctrine
of apparent authority expands the authority of an actual agent, while the
doctrine of apparent agency creates an agency relationship that would not
otherwise exist.” Id. at 601 n.6.
The most common application of the vicarious liability doctrine is in the
employment context. See RESPONDEAT SUPERIOR, supra. However,
vicarious liability also arises in the context of the family car doctrine, see
Conn. Gen. Stat. § 52-182; in a presumption of agency against the owner
of a motor vehicle, see Conn. Gen. Stat. § 52-183, and in certain situations
involving independent contractors, where the work being performed is
inherently dangerous or the general contractor has specifically reserved

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control over a certain portion of the work, see generally Gazo v. City of
Stamford, 255 Conn. 245, 256-57 (2001); Pelletier v. Sordoni/Skanska Constr.
Co., 286 Conn. 563, 591-92 (2008).
There is a quirky exception for intermediary non-liability under the family
car doctrine: If a family member with general authority to use the family car
lends it to a third party, and that third party injures someone while driving it,
the owner may be liable under the family car doctrine. See Cima v. Sciaretta,
140 Conn. App. 167, 176, cert. denied, 308 Conn. 912 (2013). Nonetheless, the
trial court does not have to direct a verdict for the owner of the car merely
because it directs a verdict for the family member who lent it to the third
party. See id. at 177-78.
The federal Graves Amendment, 49 U.S.C. § 30106, pre-empts Connecticut
law and prohibits claims of vicarious liability against car rental companies for
injuries resulting from the operation of their vehicles by lessees. Rodriguez v.
Testa, 296 Conn. 1 (2010). As a result, insurers issuing automobile liability
policies in Connecticut may no longer exclude uninsured and underinsured
motorist coverage where the uninsured/underinsured vehicle is owned by a
car rental company. Tannone v. Amica Mut. Ins. Co., 329 Conn. 665 (2018).

1V-4 VOLUNTEERS
A person who has no duty but nevertheless voluntarily undertakes to
provide assistance to another will be responsible for negligently providing
the assistance. See Bohan v. Last, 236 Conn. 670, 679 (1996); 2 Restatement
(Second) Torts § 442B (1965).
It is not clear whether Connecticut recognizes a cause of action against a
party creating an emergency situation for injuries caused to volunteers whose
involvement could reasonably be foreseen.
Notes
Conn. Gen. Stat. § 52-557b exempts certain classes of emergency and school
personnel from civil liability for negligence in rendering emergency medical
assistance.
The “firefighter’s rule” prohibits claims for premises liability against
a property owner by firefighters or police, etc., who are injured while
responding to an emergency. In 2017, the Supreme Court held, however, that
the firefighter’s rule does not bar claims sounding in ordinary negligence.
Sepega v. Delaura, 326 Conn. 788, 814-15 (2017). In light of the thorough
and thoughtful analyses offered by both the majority and the dissent in
Sepega, and the similar analysis in Lund v. Milford Hosp., Inc., 326 Conn. 846
(2017), released the same day, it is likely that the scope and substance of the

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firefighter’s rule will again be considered by the Court in the not-too-distant

future.

1W-1 WARRANTY OF HABITABILITY

A landlord may be held liable for defects in a rented property that:
1) Are the result of faulty design or disrepair;
2) existed at the beginning of the tenancy;
3) were not discoverable by the tenant on reasonable inspection;
and
4) were known, either actually or constructively, to the landlord.
Johnson v. Fuller, 190 Conn. 552, 558 (1983).
Statute of Limitations
Six years after the right of action accrues. Conn. Gen. Stat. § 52-576(a). See
Amoco Oil Co. v. Liberty Auto & Electric Co., 262 Conn. 142, 153 (2002), for
a discussion of when the right of action accrues. (Action accrues “at the
time the breach of contract occurs . . . when the injury has been inflicted.”)
Notes
A warranty of habitability generally relates to issues of whether rented
premises are untenantable so that the obligation to pay rent is suspended.
Johnson v. Fuller, 190 Conn. 552 (1983); Thomas v. Roper, 162 Conn. 343 (1972).
“In general, there is no implied warranty of habitability given to a tenant,
but rather, he takes the premises as he finds them and bears the risk of any
defective conditions which are within the area under his exclusive possession
and control.” Johnson v. Fuller, 190 Conn. 552, 558 (1983) (quotation marks
omitted).

1W-2 WASTE OF ESTATE

The elements of the ancient action for waste of estate are:
1) Damage to a reversionary estate;
2) by a tenant; and
3) while the tenant possessed and occupied the estate.
See Randall v. Cleaveland, 6 Conn. 328 (1827).
Statute of Limitations
The statute of limitations for a claim of waste of estate is three years. Conn.
Gen. Stat. § 52-577.

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Notes
Only a person with a reversionary interest in the allegedly damaged estate
may bring an action for waste of that estate; a remainderman may not. See
Wilford v. Rose, 2 Root 20 (Conn. 1793).

1W-3 WRIT OF ERROR

The writ of error is a common law action that provides for review of a trial
court decision by the Supreme Court, generally on matters that would not be
reviewable by appeal. See Conn. Practice Book § 72-1. The writ specifically
applies to:
1) A decision binding on an aggrieved nonparty;
2) a summary decision of criminal contempt;
3) a denial of transfer of a small claims matter to the regular
docket; and
4) as otherwise necessary or appropriate in aid of the court’s
jurisdiction and agreeable to the usages and principles of law.
Statute of Limitations
Although not subject to a traditional limitations period, the writ of error
must be filed within 20 days of the date of notice of the order for which review
is sought. Conn. Practice Book § 72-3.
Notes
The most important modern use of the writ of error is to review trial court
orders against non-parties, for example, with respect to discovery orders.
See Woodbury Knoll, LLC v. Shipman & Goodwin, LLP, 305 Conn. 750 (2012)
(writ of error proper method to obtain review of clear and definite discovery
order against non-party law firm). Where the question can be reviewed on
appeal, the writ of error generally is not appropriate. See State v. One or More
Persons Over Whom Courts Jurisdiction Has Not Yet Been Invoked, 107 Conn.
App. 760 (2008). The same rule applies where the question can be reviewed
by writ of habeas corpus. State v. Alegrand, 130 Conn. App. 652 (2011) (citing
State v. Das, 291 Conn. 356, 371 (2009)).

1W-4 WRONGFUL BIRTH

The elements for a claim of wrongful birth are:
1) The requisite standard of medical care for the defendant in
treating a pregnant plaintiff;
2) a breach of that standard of care;

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3) a causal relationship between that breach and the birth of a child

to the plaintiff; and
4) damages to the plaintiff as a result of that birth.
See Quinn v. Blau, 1997 WL 781874, at *2 (Conn. Super. Ct. Dec. 12, 1997).
Statute of Limitations
Because an action wrongful birth is sub-class of medical malpractice, the
statute of limitations is two years from the date the injury is first sustained or
discovered or in the exercise of reasonable care should have been discovered,
and in no event more than three years from the date of the act complained of.
Conn. Gen. Stat. § 52-584.
Notes
A wrongful birth action is one brought by the parents of a born child in
their own right, as distinct from a wrongful life action, which is brought
on behalf of the child. Quinn v. Blau, 1997 WL 781874, at *2 (Conn. Super.
Ct. Dec. 12, 1997). In essence, wrongful birth is a species of a lost chance
malpractice claim. The usual factual scenario in which such a claim arises is
when a doctor fails to perform proper/required tests on a pregnant plaintiff
that would have revealed potential problems with the fetus, or to inform
the plaintiff of the results of those tests, and thereby negligently denies the
plaintiff the opportunity to make an informed decision as to whether to
end the pregnancy. Quinn v. Blau, 1997 WL 781874, at *3 (Conn. Super. Ct.
Dec. 12, 1997).
The usual measure of damages for such a claim is the resultant “ordinary
costs of raising a child until maturity,” along with any increased cost of care
for the child due to the physical deficiencies that proper testing would have
revealed. Ochs v. Borrelli, 187 Conn. 253, 258 (1982). Damages for emotional
distress also are recoverable in a wrongful birth action. See Bujak v. State,
2014 WL 6804595, at *4 (Conn. Super. Ct. Oct. 24, 2014); Rich v. Foye, 2007
WL 2702809 (Conn. Super. Ct. Aug. 28, 2007).

1W-5 WRONGFUL DISCHARGE/TERMINATION

In order to establish a claim for wrongful discharge/termination, a plaintiff
must prove the following elements:
1) Termination from at-will employment;
2) that violates public policy.
Sheets v. Teddy’s Frosted Foods, Inc., 179 Conn. 471, 475, 479-80 (1980).

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Statute of Limitations
The statute of limitations for a claim of common-law wrongful discharge/
termination is three years. Conn. Gen. Stat. § 52-577
Notes
A Sheets-based cause of action stands as a very narrow exception to
Connecticut’s general rule of employment at-will (in the absence of an
express or implied contract requiring just cause for the discharge). See
generally Coehlo v. Posi-Seal Int’l, Inc., 208 Conn. 106 (1988). The Supreme
Court has held that a wrongful termination claim against an Archdiocese is
barred by the ministerial exception to the court’s subject matter jurisdiction.
Dayner v. Archdiocese of Hartford, 301 Conn. 759, 787 (2011). If the legislature
has provided a remedy, “[a] common-law approach to a claim of wrongful
discharge is barred as long as [that] remedy . . . address[es] the particular
public policy concerns.” Campbell v. Town of Plymouth, 74 Conn. App. 67, 76
(2002).
For example, the legislature has provided a statutory remedy for
nonpayment of earned wages. See Conn. Gen. Stat. §§ 31-71a, et seq.; WAGE
COLLECTION ACTION, infra. Therefore, “an employee cannot use the
nonpayment of wages that have not accrued as the basis for a wrongful
discharge claim.” Geysen v. Securitas Sec. Servs. USA, Inc., 322 Conn. 385,
409 (2016) (affirming judgment striking wrongful discharge claim based on
refusal to pay commissions).

1W-6 WRONGFUL LIFE

The elements for a claim of wrongful life are:
1) The requisite standard of medical care for the defendant in
treating a pregnant plaintiff;
2) a breach of that standard of care;
3) a causal relationship between that breach and the birth of a child
to the plaintiff; and
4) damages to the child as a result of being born.
Statute of Limitations
Because an action wrongful life is sub-class of medical malpractice, the
statute of limitations is two years from the date the injury is first sustained or
discovered or in the exercise of reasonable care should have been discovered,
and in no event more than three years from the date of the act complained of.
Conn. Gen. Stat. § 52-584.

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Notes
“Wrongful life denotes a cause of action brought by the infant itself
on allegations that its very existence is wrongful and that ‘but for’ the
defendant’s misfeasance it would not exist.” Kyle & Donnelly v. Candlewood
Obstetric-Gynecological Assocs., P.C., 1992 WL 134448, at *1 (Conn. Super.
Ct. June 8, 1992). Unlike wrongful birth, which provides a potential remedy
for the parents of a child born with physical or other problems, wrongful life
provides a potential remedy for the child herself.
Aside from its inherent philosophical and moral complexities, extreme
caution is warranted with regard to wrongful life as a legal cause of action.
There is currently no appellate authority in Connecticut discussing the
viability of wrongful life claims; and while there are two trial court decisions
allowing wrongful life actions to proceed, the more recent trial court
decisions are hostile. Bujak v. State, 2010 WL 625836, at *1 (Conn. Super. Ct.
Jan. 15, 2010) (action for wrongful life “is not permissible under Connecticut
law”); See Rich v. Foye, 2007 WL 2702809, at *13 (Conn. Super. Ct. Aug. 28,
2007) (striking wrongful life count and discussing split of trial court
authority). Moreover, a substantial majority of courts of other states that
have considered wrongful life have refused to recognize it. See Rich v. Foye,
2007 WL 2702809, at *12 (Conn. Super. Ct. Aug. 28, 2007). As such, any such
claim will rest on very thin ice in any Connecticut court.
In Vasquez v. Roy, 2018 WL 3403410 (Conn. Super. Ct. June 18, 2018),
defendants moved for summary judgment on the plaintiff’s wrongful life
claim stemming from the defendants’ unsuccessful attempt to terminate a
pregnancy by using unauthorized drugs. Defendants claimed that wrongful
life was not a cognizable action. In denying summary judgment, the court
ruled that the claim was not one for wrongful life, but instead sounded in
“prenatal tort.” The difference, according to the court, was that the infant
was seeking damages because defendants’ actions prevented him from having
a life free from disability, not because they caused the pregnancy to proceed
rather than be terminated. Connecticut clearly recognizes that “[a]n infant
who has sustained injuries prior to birth, whether the infant is viable or not at
that time, has a cause of action in negligence against the alleged wrongdoer.”
In re Valerie D., 25 Conn. App. 586, 590 (1991), rev’d on other grounds, 223
Conn. 492 (1992).

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