Legal News

Five Things You Should Know About Wrongful Death in Connecticut
 
1.         Connecticut law provides for a cause of action for wrongful death, see  Conn. Gen. Stat. § 52-555.  Recovery in a wrongful death case is based on the loss to deceased (the Estate).  There are five elements of recovery:
a.         Conscious pain and suffering prior to death; 
b.         The death itself;
c.         Destruction of capacity to carry on and enjoy life's activities;
d.         Destruction of earning capacity (the net loss to the estate); and
e.         Ante-mortem expenses and funeral/final expenses.
2.         In Connecticut, a claim must be brought within two years of the death (the statute of limitations).  In addition, sometimes there are even shorter state or municipal notice periods that must be met, depending on the facts of the incident.
3.         An Estate may recover compensation only for conscious pain and suffering. See Waldron v. Raccio, 166 Conn. 608, 618; Chase v. Fitzgerald, 132 Conn. 461, 470.  This means there is no award of damages for pain and suffering if the deceased died immediately, or was rendered unconscious and then died, no matter how severe the injuries.
4.         Earning capacity refers to the ability to carry on the activity of earning money.  To determine compensation for the destruction of earning capacity, one looks at probable net earnings during the probable lifetime of the deceased, i.e., actual loss of earnings reduced by the liability for income taxes and reasonable personal living expenses (i.e., for housing, food, medical attention and care) during the probable duration of their lifetime.  Floyd v. Fruit Industries, Inc. 144 Conn. 659, 671, 676 (1957). 
5.         Only a surviving spouse can recover for loss of consortium, a claim that includes the intangible elements of the marital relationship, including love, affection, companionship, sexual relations, etc.  Damages may not be awarded for the loss, sentimental or financial, to the deceased’s family or children.   Lengel v. New Haven Gas Light Co., 142 Conn. 70, 78;  Floyd v. Fruit Industries, 144  Conn. 659, 676 (1957); Mendillo v. Board of Education, 246 Conn. 456, 482, 484-486 (1999).  
 
Municipalities Cannot Shift Liability for Snow & Ice on Sidewalks to the State
In many cities and towns, municipalities have enacted ordinances that shift the responsibility for snow and ice on municipal sidewalks to the abutting property owner.  In Rivers v. City of New Britain, 288 Conn. 1 (2008), the Connecticut Supreme Court recently held that when the State of Connecticut owns the land abutting a public sidewalk, municipalities cannot shift the duty to clear snow and ice from the sidewalk – or liability for damages caused by a fall on snow or ice – even if the municipality has such an ordinance making the abutting property owner liable.  

An abutting landowner, in the absence of statute or ordinance, ordinarily is under no duty to keep the public sidewalk in front of his or her property in a reasonably safe condition for travel.  “Municipalities ordinarily have a duty of care with respect to the maintenance of public sidewalks, and, under Conn. Gen. Stat. § 13a-149, they are liable for damages caused by a breach of that duty.”  But Conn. Gen. Stat. § 7-163a allows a municipality to adopt an ordinance that shifts the duty of care and liability concerning the presence of snow and ice on the sidewalk to the owner of the land abutting that sidewalk.  In cities and towns where such ordinances are enacted, you can be held liable for not clearing snow and ice within a reasonable time after a storm, and if someone is injured as a result, he or she can seek damages from you.  But different rules apply as to the State.  The State enjoys “sovereign immunity,” which means the State cannot be sued unless it consents to be sued.  It’s good to be the king.  In Rivers v. City of New Britain, 288 Conn. 1 (2008), the Supreme Court held that when the State owns the land abutting a public sidewalk, an ordinance adopted by a municipality under § 7-163a does not relieve the municipality of liability for damages caused by the presence of ice or snow on the sidewalk.   The municipality must still clear the sidewalk of snow and ice, and can be liable if it fails to keep the sidewalk reasonably safe for pedestrian travel.  If you have questions regarding this or any other case, contact Law Firm of Stephen M. Reck and Scott D. Camassar today.
 
What is the “Loss of Chance” Doctrine?

In Peterson v. Ocean Radiology Associates, P.C., 109 Conn. App. 275 (2008), the Connecticut Appellate Court recently discussed the “loss of chance” doctrine in the context of a medical malpractice case.  In a loss of chance case, a party may be held liable for negligent acts, or the negligent failure to act, which causes an individual to lose a chance to avoid some form of physical harm from a preexisting medical condition.  “In such cases, the plaintiff must show that if proper treatment had been given, better results would have followed.”  
The traditional approach for proving causation, which Connecticut courts follow, requires that a plaintiff prove that with proper medical treatment, the patient probably would have avoided the injury, harm, or condition complained of.  Under Connecticut law, the loss of chance doctrine includes a decreased chance of successful treatment or a decreased chance of survival itself.  “To prevail on a loss of chance claim, a plaintiff must show (1) that he has 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. . . .  In other words, the plaintiff must show that what was done or failed to be done probably would have affected the outcome” (citations and internal quotation marks omitted).
In order to satisfy the elements of a lost chance claim, plaintiffs must first prove that had the standard of care been followed by the defendant(s), there was a greater than 50 percent chance of avoiding the harm.   The plaintiffs must then prove that the decreased chance for survival or successful treatment more likely than not resulted from the defendant's negligence.  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.  This is a difficult burden of proof.
In Peterson v. Ocean Radiology Associates, P.C., the plaintiffs filed a complaint alleging that the defendant physician failed to observe or note significant changes between the deceased’s July, 2001, and October, 2001 chest X rays.  It was not until March 2002, that the deceased was diagnosed with extensive small cell lung carcinoma.  The deceased died four months later.
The plaintiff’s complaint alleged that as a result of the defendant’s negligence and carelessness, the decedent “suffered great pain and extreme mental anguish before his death; experienced a significant and material decrease in his life expectancy; lost any opportunity and/or chance of achieving a favorable medical recovery from his disease; lost the opportunity to experience significant palliative benefit of available medical treatment; experienced more intrusive, invasive and medically, physically and emotionally disabling medical intervention to attempt to treat his disease; and lost the opportunity to enjoy and carry out all of life's activities, including the companionship of his spouse, children, and grandchildren, during his remaining living days.”  The trial court agreed with the defendants that there was no evidence to support the plaintiffs’ loss of chance claims, but allowed the remaining claims to proceed to trial.  If you have questions regarding this or any other case, contact Law Firm of Stephen M. Reck and Scott D. Camassar today.
 
Supreme Court Upholds $472,048 Verdict for Injured Motorist
 
The Connecticut Supreme Court recently upheld a $472,048.00 verdict in favor of a Groton City Fire Captain, Herbert Hicks, in his case against the Department of Transportation and State of Connecticut.  Herbert Hicks was represented at trial by Attorney Stephen M. Reck.  The jury found that on November 29, 2001, Mr. Hicks was rounding a sharp curve on Route 94 in Glastonbury when he encountered a large D.O.T. dump truck in his lane of travel.  Mr. Hicks swerved to avoid the D.O.T. truck, which caused his crane truck to flip over and crash.  Mr. Hicks, who suffered severe injuries, was knocked unconscious as a result of the crash and had no memory of the accident.
During the trial, three D.O.T. workers testified that the D.O.T. truck was completely off the road.  However, one eyewitness, who was directly behind Mr. Hicks, testified that she saw the D.O.T. truck in the road.  "I want to thank Linda Guard, the eyewitness, for having the courage to come forward and testify," Attorney Reck said.  "This was a smart jury.  They saw through the D.O.T. workers' claims and found the truth."
Herbert Hicks was rushed by ambulance to Hartford Hospital after the accident, where he was treated for a fractured skull, fractured sinuses, bleeding in the brain, post-concussion syndrome, and memory loss.  Waterford optometrist, Steven M. Rapoport, testified that Mr. Hicks has permanent double vision as a result of the accident and needs to wear a special prism in his glasses.
The State, which was represented by Attorney Robert Clemente of Cooney, Scully & Dowling, in Hartford, never offered a penny to settle the case before trial.  "Sometimes it's a long, hard fight to obtain justice," Attorney Reck said.
 
 
New Rhode Island Cases
Rhode Island Supreme Court Rejects Social Host
Liability
 
In Willis v. Omar, No. 2007-164 (July 9, 2008), the Rhode Island Supreme Court rejected the plaintiff’s invitation to create a new cause of action against social hosts when guests or drunk drivers leave their parties after consuming alcohol and then cause injury or death on the highway.  The Court held that social hosts do not owe a duty to third persons for injuries caused by intoxicated guests who were drinking at the host’s home, in the absence of a “special relationship.”  The Court said it was up to the Legislature to create such a duty.  Read more.
The Willis case arose out of a night of heavy drinking by the plaintiff and her boyfriend, followed by drunk driving, that resulted in severe injuries to the plaintiff, including the amputation of one of her legs.  The plaintiff and her boyfriend drank through dinner and then went to the host’s home, where they were served drinks “non-stop” for over three hours.  While the amount of drinking was disputed, hospital records later that night indicated the plaintiff’s blood alcohol was 0.261 and her boyfriend, who was operating the vehicle, was 0.196.  Although sympathetic to the plaintiff and some of the public policy issues she addressed, the Supreme Court held that “Whether an injured party should be able to maintain a cause of action arising from social-host liability rests with the Legislature, not the Court.”  The Court further noted that although it has recognized social-host liability in limited circumstances, it has done so when alcohol was illegally provided to minors and injuries resulted.  Such a “special relationship” was not present in this case.
Despite this holding, it is still the law in Rhode Island that “a party host who makes alcohol available to an underage guest owes a duty of reasonable care to protect the guest from harm.”  If you have questions regarding this or any other case, contact Law Firm of Stephen M. Reck and Scott D. Camassar today.
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