Opinion
No. CV 06 5001169
February 20, 2009
MEMORANDUM OF DECISION
I. BACKGROUND
The plaintiffs in this action, Robert P. Satagaj and Melissa Allen are the purchasers of a defectively constructed home, located at 111 Collins Hill Road in Portland, Connecticut. The defendants are the town of Portland, Richard Kelsey, employed as Portland's public works director, and Stephen Giarratana, employed as Portland's building inspector.
The action follows a lawsuit brought against the builder, David Fugge, in which judgment was entered upon default in favor of the plaintiffs. See Satagaj v. Fugge, Superior Court, judicial district of Middlesex, Docket No. CV 05 4003340 (September 19, 2005, Aurigemma, J.). According to the parties, damages in the amount of $102,758.52, as well as attorneys fees in the amount of $5,000, were awarded by the court after a hearing in damages. Although executions were issued upon the judgment, they were returned unsatisfied and the plaintiffs were ultimately awarded $30,000 from the Connecticut new home construction guarantee find.
The present action was filed with the court nearly one year later on August 23, 2006. An amended complaint was filed on February 20, 2007 with eight counts; however, summary judgment was entered by the court (Jones, J.) in favor of the defendants on counts one through three on September 22, 2008, and subsequently, counts four and five were withdrawn by the plaintiffs at trial.
The remaining three counts of the amended complaint are directed at Giarratana and the town of Portland, as follows: Count six, identified as "negligence," is brought against Giarratana serving as the building inspector for the town of Portland. It alleges that Giarratana breached his duty to the plaintiffs in issuing a certificate of occupancy (CO) for their home which was not constructed in substantial compliance with the state building code, and that he did so with a "reckless disregard for [their] health and safety." In paragraph 11 of count six, it is specifically alleged that Giarratana "failed to observe dangerous code violations in plain view to a trained eye." Count seven, identified as "statutory negligence under [General Statutes] § 52-557n," is brought against the town of Portland, alleging that Giarratana acted within the scope of his employment as a town building official. Count eight, identified as "recklessness," is brought against Giarratana personally. It incorporates the factual allegations of count six and alleges that Giarratana's "wanton and willful failure" to adequately inspect the house "stemmed from personal animosity toward the plaintiffs."
In answering the complaint on April 4, 2007, the defendants filed two special defenses claiming governmental immunity. The special defenses were amended without objection on August 17, 2007 to include a third special defense to bar the action pursuant to the statute of limitations, as codified at General Statutes § 52-584.
This action was tried before the court on December 10, 11 and 29, 2008.
II. FACTS
The court finds the following facts to be relevant to these proceedings and supported by a preponderance of the evidence. The plaintiffs purchased a single-family home located at 111 Collins Hill Road in Portland on September 12, 2003, where they continue to reside. Upon taking possession, the plaintiffs became aware of substantial problems with the construction and inspection of their new home. Ultimately, the plaintiffs identified numerous building code violations, many of which placed their health or safety in jeopardy in varying degrees.
A. Immediately Identifiable Defects
Although some of the more serious code violations became evident to the plaintiffs as they received the reports of experts employed to evaluate problems with their home, other defects were immediately evident to the plaintiffs through their own observations. By September 22, 2003, the plaintiffs learned that an upstairs shower drain had not been connected to the sewer system, which caused substantial water damage to their home. By this time, they were also aware of serious water drainage problems in the back yard causing damage to their driveway. By October 10, 2003, they identified a source of water causing the drainage problem in their backyard as the 12th fairway of a nearby golf course. By December 9, 2003, there was a constant flow of ground water through the foundation and into their garage.
In addition to their problems with water damage, the plaintiffs were informed of a serious structural problem in the design of their deck by the builder's engineer, Michael Wrang, in a letter dated October 5, 2003, as well as by Giarratana in an e-mail dated November 5, 2003. (Exhibits 13 and 14.) On October 13, 2003, the plaintiffs were informed by an oil company representative that their furnace had not been installed properly and that the exhaust vent was not installed to code. In July of 2004, the plaintiffs were also notified of an open sewer pipe in the attic, allowing sewer gases to vent inside the home.
B. Expert Testimony
As the enormity of the problems with the construction of their home became evident to the plaintiffs, they sought the assistance of town officials, attorneys and building experts. In order to validate their concerns, they hired Matthias J. Mulvey, a building and zoning expert from Weymouth, Massachusetts. Mulvey inspected the home and identified thirty-eight problems, most of which involved violations of the applicable Connecticut building codes. In a written report dated December 28, 2008, he summarized his lengthy conclusions as follows: "I believe you have some significant problems with your home. The inspection I performed was based upon what I could readily see and gain access to. I have concerns that there may have been no inspections made at your home based upon the condition of visible elements. If obvious flaws were signed off, what would make one feel comfortable that sections of your home that is (sic) hidden from view are any safer? I would have reservations about letting the builder return to the property to undertake any repairs to bring the dwelling back up to the minimum standard that the Connecticut [s]tate [b]uilding [c]ode requires for human occupancy." (Exhibit 3, p. 6.)
In testimony before the court, Mulvey indicated that his inspection was not exhaustive because it was intended to prompt an official inspection by the state building inspector, Christopher Laux. Therefore, he focused on open and obvious violations and did not engage in any destructive testing that might reveal violations concealed during the construction process. He nonetheless found that many of these obvious violations compromised the plaintiffs' health and safety. He re-inspected the home several years later and found further evidence of code violations unseen at the time of the 2004 inspection. Based upon his personal observations and specialized knowledge of building codes and practices, he unequivocally concluded that the plaintiffs' home was not in substantial compliance with the building codes at the time of the original construction and that a CO should not have been issued by a building official. He further concluded in his report upon re-inspection, dated November 9, 2008, that these violations required repairs totaling $135,164, exclusive of relocation and temporary housing costs necessitated by the reconstruction of all means of ingress and egress. (Exhibit 5.)
Mulvey's original inspection report had the desired effect of prompting an inspection by Laux, the state building inspector, who is an undisputed expert in the field of the state building code and inspections. On April 1, 2005, he memorialized his inspection and review of the decision to issue a CO in a letter to Giarratana. (Exhibit 7.) In this report, Laux notes that his list of eighteen violations and additional concerns is "not to be construed as the only violations existing at the site" and concludes that "[i]n short, it is evident from my site inspection that the [CO] for this building should never have been issued in light of the numerous documented violations. Fortunately, I do not believe that the noted violations represent such a serious life safety concern as to require rescinding of the [CO] and forcing the occupants to vacate the premises. I have ruled, however, that you misconstrued the provisions of the 1999 State Building Code in issuing the [CO] in light of the noted violations." (Exhibit 7.) In one of his conclusions, he finds there was no record of a final inspection and suggests that one may not have been done in violation of the code. (Exhibit 7.)
In his testimony before the court, Laux indicated that the code provides only a minimum standard for the construction of buildings and that the issuance of a CO is, ultimately, a judgment call. In this case, he testified that the violations he found were readily observable, but that no building official is expected to detect all of the perceivable violations of the code. He nonetheless repeated his conclusion that the CO should never have been issued in this case because the construction of the home was not in substantial compliance with the building code. But he also repeated his conclusion that the violations did not require the removal and relocation of the plaintiffs from the premises, based upon their safety. He qualified this conclusion in light of the fact there were no children residing in the home and that, on balance, the expense of relocation was not justified under the facts of the case. He did not comment, however, on whether their relocation would be required by the rehabilitation necessary to remedy the code violations.
A third building code expert was called to testify on behalf of the plaintiffs' claims in this case. John Parker, the chief building official for the city of Middletown, inspected the home on January 24, 2006. In a report issued to Giarratana on February 14, 2006, he indicated that he re-inspected the violations discovered during Laux's inspection of the dwelling unit and found additional violations. All together, he lists twenty-eight violations. He noted that "[o]f the nineteen items noted in . . . Laux's April 1, 2005 letter, only two items have been corrected. The first corrected item is #14, heat registers in the garage. Although the heat registers have been removed they appear to be covered over with cardboard. This is not an approved method of repairing a metal duct or the duct insulation. The second item is #17; the plumbing vent now terminates to the exterior." (Exhibit 8.)
In his testimony before the court, Parker indicated that the violations he found were readily observable. He also testified that final inspections for the issuance of a CO should take several hours and they often involve multiple visits to the building site. He also commented that, in his experience, withholding the CO provides leverage to ensure builder compliance with the provisions of the code. Although he testified that not all of the violations involved substantial problems, he found that some of the violations were important and compromised the safety of the plaintiffs. His conclusion was that a CO should not have been issued in this case.
C. Facts Leading to the Issuance of the CO by Giarratana
The plaintiffs purchased their home from the builder, Fugge, who had obtained a permit to build a single-family home at this location on December 4, 2001, signed by Giarratana. (Exhibit G.) At the time Fugge applied for and obtained the permit, and throughout the period of time that he constructed this home, he was not registered or otherwise licensed as a new home construction contractor pursuant to Chapter 399a of the General Statutes. According to the application materials, Fugge personally owned this property and was acting as a general contractor. The court further finds that Giarratana reasonably relied upon Fugge's representation at the time of the building permit application and workers' compensation affidavit, both dated August 21, 2001, that this home was for Fugge's own use and that he was not engaged in the business of new home construction, as contemplated by Chapter 399a. (Exhibits E and F.)
Fugge never occupied the home and, ultimately, did not intend to do so. Evidence supporting this conclusion is the plaintiffs' contract to purchase the home from Fugge. Satagaj, one of the plaintiffs, testified that the purchase and sale agreement was signed late in 2002, approximately one year before the closing occurred on September 12, 2003. Although all permit and inspection records make reference to Fugge, the fact that the plaintiffs were to be the purchasers of this new home became known to Giarratana and other municipal officials during the summer of 2003.
Prior to the issuance of the CO on approximately September 8, 2003, Satagaj had a series of confrontational meetings with Giarratana. Conflicting evidence was presented regarding the exact date of the first of these meetings; however, they all occurred during the summer of 2003. These confrontational meetings stemmed from Giarratana's missed and delayed inspections, scheduled with Fugge, resulting in complaints made by Allen, the other plaintiff in this action, to the state building inspector, Laux. These complaints followed informal complaints made to Portland officials by the plaintiffs and culminated in the first confrontational meeting between Satagaj and Giarratana at 111 Collins Hill Road. Another confrontation occurred in the parking lot of the Town Hall, when Satagaj employed his father as an intermediary in seeking Giarratana's approval of the CO.
The CO is dated August 29, 2003; however, it was not signed by Giarratana until September 8, 2003. (Exhibit 2.) Other evidence presented indicates that it may have been issued on the 4th, 10th or the 12th of September. The evidence is clear, however, that it was issued after August 29th and before the closing occurred on September 12, 2003.
It is clear from the evidence presented in this case that completion of 111 Collins Hill Road took an unusually long period of time. The court finds this resulted primarily from delays caused by Fugge, whom Giarratana considered to be "the most irresponsible person on the planet." The reason Giarratana considered Fugge irresponsible involved his long frustration in contacting Fugge during the construction period, which lasted nearly two years and, further, that he was ultimately located and arrested at a later time in the nearby town of Cromwell for his unlawful building activities.
There neither was evidence of any particular charges brought against Fugge nor any evidence of a disposition of those charges. This evidence was taken by the court, absent objection, for the purpose of determining Giarratana's view of Fugge, not that Fugge was arrested or convicted of a crime.
It is also clear from the evidence that the plaintiffs were anxious to move into their new home and were losing substantial sums of money caused by delays in the completion of their new home. These delays motivated the plaintiffs to pressure Giarratana to complete the CO process. Giarratana was so infuriated by their tactics, he bitterly complained of being pressured into signing the CO over a year and a half later in a letter to Laux, dated April 11, 2005. (Exhibit 26.)
D. Filing this Lawsuit
The CO was issued on or about September 8, 2003. The plaintiffs closed title four days later on September 12, 2003. Within days of moving into their new home, the plaintiffs began discovering defects in the construction in their home. After seeking damages from their builder, they found him to be judgment-proof and thereafter filed this action with the court on August 23, 2006, nearly three years after the CO was issued.
An analysis of the facts leading to the commencement of this action is therefore critical to the court's determination of the applicable statute of limitations because it was filed more than two years after the allegedly reckless issuance of the CO by Giarratana, but within three years of its occurrence. If General Statutes § 52-584 is applicable, as the defendants claim, the plaintiffs are afforded only two years after reasonably discovering their injury to bring this action. And under both General Statutes §§ 52-584 and 52-577, the plaintiffs commenced this action within the maximum period of three years from the act or omission alleged in their complaint.
General Statutes § 52-584 provides: "No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, podiatrist, chiropractor, hospital or sanatorium, shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed."
General Statutes § 52-577 provides: "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of."
As previously indicated, the plaintiffs waited more than two years to commence this lawsuit. As early as October 5th and again on October 30, 2003, Allen expressed her view that she was the owner of a home that was not "inspected properly." (Exhibit R.) Days later on November 4, 2003, she spoke with the first selectman of Portland "regarding the constant issues with his inspectors." (Exhibit R.) After several months of frustrating attempts to address the defective conditions in their home, Satagaj sent a formal complaint to Laux on March 30, 2004, in which he draws a direct causal connection between Giarratana and the plaintiffs' damages. (Exhibit A.) In the e-mail he states that "Mr. Giarratana, through inaction, uncooperativeness, and a `chip on his shoulder' attitude towards my fiancée and I, has committed serious malfeasance and abused his position as a building official, resulting in duress and financial damages which we are seeking to recover." (Exhibit A, p. 1, paragraph 2.) Although substantial evidence has been presented to suggest that the plaintiffs reasonably discovered their alleged injury by Giarratana soon after the closing on their home in the fall of 2003, this e-mail of March 30, 2004 clearly establishes actionable harm.
During the nearly two-and-a-half-year period after March 30, 2004, the plaintiffs diligently worked with Portland officials to address their concerns. They met with town officials and attended board of selectmen meetings in August and December of 2005. (Exhibits 21, 22A and 22B.) They also engaged the services of a law firm which, in a November 28, 2005 letter to Portland's insurer, provided documentation for the purpose of claiming that a "loss occurred as a result of negligence by your insured in the inspection of the home of my clients located at 111 Collins Hill Road, Portland, Connecticut." (Exhibit D.) The plaintiffs' interactions with town officials led them to believe that their concerns would be addressed and that insurance coverage was actively being pursued. Delays in resolving this claim occurred while re-inspections were being completed and were further delayed by a dispute between Portland and Connecticut building officials concerning the state's jurisdiction over the actions of municipal building officials. Although these delays had the effect of lulling the plaintiffs into believing that their cause of action would be amicably resolved, the court finds that none of these delays were intended to mislead the plaintiffs into filing an untimely lawsuit or to fraudulently mislead them into believing that a lawsuit was unnecessary.
III. DISCUSSION
The court will begin its discussion of the legal claims in this case with a discussion of the special defenses, as they are critical to the question of liability in this case. In answering the complaint on April 4, 2007, the defendants filed two special defenses claiming governmental immunity, amended without objection on August 17, 2007 to include the third special defense of the limitation on actions, as codified at § 52-584.
A. Statute of Limitations
The defendants claim the applicable statute of limitations is § 52-584. The plaintiffs counter that § 52-577 applies. The court agrees with the plaintiffs.
"Public policy generally supports the limitation of a cause of action in order to grant some degree of certainty to litigants . . . The purpose of [a] statute of limitation . . . is . . . to (1) prevent the unexpected enforcement of stale and fraudulent claims by allowing persons after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability, and (2) to aid in the search for truth that may be impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise. Therefore, when a statute includes no express statute of limitations, we should not simply assume that there is no limitation period. Instead, we borrow the most suitable statute of limitations on the basis of the nature of the cause of action or of the right sued upon." (Citations omitted; internal quotation marks omitted.) Bellemare v. Wachovia Mortgage Corp., 284 Conn. 193, 199, 931 A.2d 916 (2007).
The court finds no express statute of limitations for actions against municipalities, municipal officials or building officials under the facts presented in this case. Therefore, the court is required to borrow the most suitable statute of limitations based upon "the nature of the cause of action or of the right sued upon." Bellemare v. Wachovia Mortgage Corp., supra, 284 Conn. 199. The essence of the plaintiffs' claim in count six is that Giarratana recklessly inspected and issued a CO to Fugge, permitting him to effectuate the sale of a defective home to the plaintiffs. Although count six is not specifically labeled as "malpractice," the plaintiffs' case is founded upon Giarratana's failure to use his specialized knowledge or "trained eye" as a building official, resulting in injury. See amended complaint, count six, paragraph 11.
The allegations in count six are incorporated in counts seven and eight. Count seven is directed toward the town of Portland as Giarratana's employer pursuant to General Statutes § 52-557n. Count eight is brought against Giarratana in his personal capacity for common-law recklessness, based upon his personal animosity toward the plaintiffs.
As a general matter, causes of action based upon torts are barred after three years pursuant to § 52-577, which has been held by our courts to encompass actions based upon professional malpractice. See Rosenfield v. Rogin, Nassau, Caplan, Lassman Hirtle, LLC, 69 Conn.App. 151, 158, 795 A.2d 572 (2002) (the underlying legal malpractice action was subject to § 52-577); Farnsworth v. O'Doherty, 85 Conn.App. 145, 147-48, 856 A.2d 518 (2004) (the legal malpractice claim for neglecting to allege that the town building inspector failed to inspect the building foundation and that he recklessly issued a certificate of occupancy was subject to § 52-577); Curtis Packaging Corp. v. KPMG, LLP, Superior Court, complex litigation docket at Waterbury, Docket No. X06 CV 99 0156558 (July 31, 2002, McWeeny, J.) (§ 52-577 was applied to accounting malpractice); see also Hnath v. Vecchitto, Superior Court, complex litigation docket at New Britain, Docket No. X03 CV 93 0502910 (February 20, 2003, Aurigemma, J.) (same).
The only contrary appellate opinion associated with this question identified by the court is Grigerik v. Sharpe, 45 Conn.App. 775, 699 A.2d 189 (1997), rev'd, 247 Conn. 293, 721 A.2d 526 (1998). The case involved the negligent performance of professional engineering services, namely, certain soil testing and site planning necessary for the construction of a septic system. Id., 794. The Appellate Court concluded that the two-year statute of limitations of § 52-584 applied to the plaintiff's negligence count against the defendants. Id. The Supreme Court, however, reversed the case, finding the seven-year limitations period of General Statues § 52-584a, specifically applicable to architects and engineers, to apply instead. Grigerik v. Sharpe, 247 Conn. 293, 308-09, 721 A.2d 526 (1998). Although the facts of the case suggest that the claim may have involved professional malpractice, the case was not framed in this legal context. Id. A contrary conclusion was also reached in Conrad v. Erickson, Superior Court, judicial district of Middlesex, Docket No. 69587 (January 13, 1994, Walsh J.), for the negligent issuance of a building permit by the town of Old Saybrook. In Conrad, however, the complaint was filed more than seven years after the negligent events allegedly occurred. Id. Although the action was clearly barred by § 52-584, it was barred by § 52-577 as well. The court nonetheless analyzed the case under the two-year limitation contained in § 52-584 because it is applicable to cases involving negligent injury to real property. Id. In addition, a contrary conclusion was reached in Stevens v. Romer, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 980168402 (March 24, 1999, D'Andrea, J.) (24 Conn. L. Rptr. 279), where the allegation against a pharmacist was for ordinary negligence in the issuance of a prescription and not malpractice. The court accordingly applied § 52-584 to the action. Id., 280.
Section 52-584 is the primary exception carved from this three-year statute of limitations and is applicable to the subset of torts involving injuries to a person or property, caused by negligence or recklessness. This statute of limitations provides for a shorter, two-year "discovery" period, along with a three-year statute of repose similar to § 52-577. For the purpose of § 52-584, the statute of limitations begins to run when the plaintiff discovers some form of actionable harm. "`Actionable harm' occurs when the plaintiff discovers, or in the exercise of reasonable care should have discovered, the essential elements of a cause of action . . . The statute begins to run when the plaintiff discovers some form of actionable harm, not the fullest manifestation thereof." (Citation omitted; internal quotation marks omitted.) Merly v. State, 211 Conn. 199, 206, 558 A.2d 977 (1989). Thereafter, an action must be commenced within two years, determined by "the date of service of the writ upon the defendant." Valley Cable Vision, Inc. v. Public Utilities Commission, 175 Conn. 30, 33, 392 A.2d 485 (1978). It is undisputed that the plaintiffs served the summons and complaint in this action on August 11, 2006.
Interestingly, medical malpractice is specifically included within the statutory language of § 52-584 and is therefore a notable exception to limitations on other actions alleging professional malpractice. Its inclusion is especially notable because § 52-584 would arguably apply to an injury to a person due to negligent medical treatment, albeit for the breach of a higher standard than ordinary care. Its inclusion in this statute of limitations, however, suggests that it is a cause of action distinguishable from others involving injuries to a person or property.
Another specific exception to the three-year limitation on professional malpractice actions is found in General Statutes § 52-584a, which provides a seven-year limitations period applicable to architects and engineers. See Grigerik v. Sharpe, 247 Conn. 293, 301-09, 721 A.2d 526 (1998). This specific provision for architects and engineers may also be seen as an exception to the two-year "discovery" provision of § 52-584, concerning injury to property.
General Statutes § 52-584a(a) provides: "No action or arbitration, whether in contract, in tort, or otherwise, (1) to recover damages (A) for any deficiency in the design, planning, contract administration, supervision, observation of construction or construction of, or land surveying in connection with, an improvement to real property; (B) for injury to property, real or personal, arising out of any such deficiency; (C) for injury to the person or for wrongful death arising out of any such deficiency, or (2) for contribution or indemnity which is brought as a result of any such claim for damages shall be brought against any architect, professional engineer or land surveyor performing or furnishing the design, planning, supervision, observation of construction or construction of, or land surveying in connection with, such improvement more than seven years after substantial completion of such improvement."
The genesis of § 52-584 is also instructive because it was historically applicable to municipalities until repealed by an amendment adopted in 1903. This statute originated "in 1853 legislation providing for recovery in negligence against railroad companies. See Radezky v. Sargent Co., 77 Conn. 110, 112, 58 A. 709 (1904). The statute has been amended several times to broaden its application to actions for personal injuries caused by the negligence of municipal and other corporations. The statute later was amended in 1903. See id. As amended, removed from the statute were the words, `against a municipal or other corporation.' See id. The statute remained unchanged until 1949 when the legislature amended the statute so as to extend liability `caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician, surgeon, dentist, chiropodist, chiropractor, hospital or sanatorium . . .' General Statutes (1949 Rev.) § 8324. The present statute is in substantially the same form as the 1949 version, the only material change is to the limitations period, which changed the time that a cause of action could be brought from one year to two years." (Emphasis added.) Lombard v. Edward J. Peters, Jr., P.C., 79 Conn.App. 290, 298, 830 A.2d 346 (2003).
The question presented by this statutory scheme is whether the allegation of malpractice or, alternatively, whether the nature of the injury, which in this case is to property, controls the applicable limitation period. Further, the issuance of a CO did not directly cause the damage to the plaintiffs' property; it instead permitted them to unwittingly effectuate a contract of sale that may otherwise have been invalid. It also precluded them from negotiating an appropriate remedy with their builder. Although the property damage experienced by the plaintiffs is an indirect consequence of Giarratana's alleged reckless act, our modern case law discourages such distinctions for the purpose of determining the applicable statute of limitations. See Lombard v. Edward J. Peters, Jr., P.C., supra, 79 Conn.App. 298-99.
There is little guidance in our case law on the question of whether the reckless issuance of a CO causes injury to property for the purpose of applying § 52-584. The material damage suffered by the plaintiffs is to their property, which is an injury contemplated by the language of § 52-584. In one Superior Court case, this statute of limitations was applied in a case alleging the reckless issuance of a CO. Mountaindale Condominium Ass'n., Inc. v. Zappone, Superior Court, judicial district of Litchfield, Docket No. 067279, (May 11, 1998, Pickett, J.); aff'd, 59 Conn.App. 311, 757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d 903 (2000). However, under the facts of the case, over three years had passed since the actionable harm, barring the action under the provisions of both §§ 52-584 and 52-577. Id. Furthermore, on appeal, the Appellate Court declined to address this question. "In affirming the judgment, we do not reach the question of whether the plaintiff's complaint properly alleged a claim for injury to real or personal property and, thus, whether § 52-584 or . . . § 52-577 was the statute of limitation that would bar a cause of action such as the one alleged by the plaintiff in count twenty-four." Mountaindale Condominium Ass'n., Inc. v. Zappone, 59 Conn.App. 311, 317 n. 9, 757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d 903 (2000). In another Superior Court case, a municipal defendant assumed, contrary to the trial court in Mountaindale, that the improper issuance of a CO did not involve an injury to a person or property; however, again in that case, the three-year statute of repose had passed before bringing suit and therefore the applicability of §§ 52-577 or 52-584 was not determined by the court. See McKeon v. Estate of Rinaldi, Superior Court, judicial district of Waterbury, Docket No. CV 044001110, (January 11, 2006, Brunetti, J.). The court further notes that the distinguishable nature of professional malpractice as a cause of action was not addressed in either case, discussed infra.
In McKeon v. Estate of Rinaldi, supra, Superior Court, docket No. CV04 4001110, the court stated that "the City asserts that General Statutes § 52-577 sets forth the applicable statute of limitations. It argues that because the plaintiff does not appear to be claiming personal injury or injury to real or personal property, General Statutes § 52-584 does not apply. The City contends that because the plaintiffs allege that the certificate of occupancy was issued on October 18, 2000, the latest an action could have been brought was October 18, 2003. Because the plaintiffs' suit was commenced on or about September 1, 2004, the City maintains that the action is time-barred. The court finds the plaintiffs' action is outside the three-year statute of limitations. Thus, the court need not decide which of these two provisions, § 52-577 or § 52-584, is applicable to the plaintiffs' claims since the action is outside the three-year time limitation set forth in both."
The defendants claim this case is controlled by Nardi v. AA Electronic Security Engineering, Inc., 32 Conn.App. 205, 210, 628 A.2d 991 (1993), in which the Appellate Court stated that "General Statutes § 52-584 is the statute of limitations applicable in an action to recover damages for injury to the person or property . . ." In Nardi, the plaintiffs claimed that a telephone company had been negligent in installing a jack for a burglar alarm system, after which their home was burglarized. Id., 206-09. Without considering the applicability of § 52-577, the court ruled that the plaintiffs' failure to bring their case within the statute of limitations found in § 52-584 barred their action for damage to their property. Id., 210-14.
In addressing the scope of § 52-577, however, our Supreme Court has stated that "[t]he three-year limitation of § 52-577 is applicable to all actions founded upon a tort which do not fall within those causes of action carved out of § 52-577 and enumerated in § 52-584 or another section . . . Thus, the three year limitation period of § 52-577 applies to all actions based on a tort unless there has been a specific statutory exclusion." (Citation omitted; emphasis added; internal quotation marks omitted.) Travelers Indemnity Co. v. Rubin, 209 Conn. 437, 441, 551 A.2d 1220 (1988).
Although the resulting damage in this case may be to the plaintiffs' property, the cause of action is founded upon the breach of a duty imposed by the state building code and professional standards applicable to municipal building officials, and is therefore based upon professional malpractice. The specific inclusion of medical malpractice in § 52-584 excludes, by implication, other actions based upon professional malpractice, to which § 52-577 has generally been found to apply under our case law. Therefore, in the court's determination, professional malpractice is not specifically included in § 52-584, as required for its application under the holding of Travelers Indemnity Co. v. Rubin, supra, 209 Conn. 441.
It may also properly be viewed as arising through a statutory exception to municipal immunity. See discussion of General Statutes §§ 52-557n(b)(7) and (8), infra.
The court sees no consistent, theoretical basis for distinguishing medical malpractice from other forms of professional malpractice. It may simply be a policy choice made by the legislative department. Malpractice is generally distinguishable from ordinary negligence in that it involves the breach of a standard of care or a duty imposed by the specialized knowledge of a tortfeasor, generally proven by expert testimony. Yet medical malpractice is subject to the shorter limitations period, compared with other forms of professional malpractice, even though a longer period might be appropriate given the often subtle nature of the resulting injury and any delay required by consultations with experts to determine the applicable standard of care and causation. Although medical malpractice generally results in a personal injury, the legislature found it necessary to specifically include it within § 52-584 concerning injury to persons and property. On the other hand, legal malpractice may result in an injury to property, and yet it remains subject to the general statute of limitations for torts contained in § 52-577. For example, if an attorney negligently fails to require a CO from the contractor upon closing title to a new home, a cause of action based upon his act of malpractice would be barred after three years under § 52-577. It therefore seems that the nature of the cause of action, as opposed to the nature of the resulting injury, guides the proper application of these two related statutes of limitations, notwithstanding the specific inclusion of medical malpractice in § 52-584. See Macdermid v. Todd Cassanelli, Inc., Superior Court, judicial district of Litchfield, Docket No. CV 96 0070259 (September 17, 1996, Pickett, J.) (17 Conn. L. Rptr. 584) (failure to provide insurance as opposed to the damage resulting from the roof collapsing, was determinative in applying § 52-577).
In light of the court's determination that the three-year statute of repose contained in § 52-577 applies to count six, there is no need to consider the plaintiffs' tolling arguments as they relate to the application of the two-year reasonable discovery provision of § 52-584. The court will note, however, that there has been no finding of fraud or misrepresentation by the defendants sufficient to equitably estop or otherwise toll the statute.
In light of the court's conclusion that there is no basis for tolling § 52-584, count eight is barred, to the extent it is distinguishable from count six as a count sounding in common-law recklessness. Count eight, however, includes the same language as is contained in count six which gives rise to the court's consideration of professional malpractice. The difference in count eight is the allegation of personal animosity toward the plaintiffs. If it is therefore to be construed as a count in professional malpractice, then it is not barred by § 52-577.
Generally, there are two equitable theories employed to toll the accrual of a statute of limitations, equitable estoppel and equitable tolling. "Courts, applying equitable principles, have laid down the doctrine of equitable estoppel by which a defendant may be estopped by his conduct from asserting defenses such as the statute of limitations . . . Estoppel rests on the misleading conduct of one party to the prejudice of the other . . . There are two essential elements to an estoppel — the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief; and the other party, influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done." (Citations omitted; internal quotation marks omitted.) Morris v. Costa, 174 Conn. 592, 599, 392 A.2d 468 (1978).
"In addition, estoppel against a public agency is limited and may be invoked: (1) only with great caution; (2) only when the action in question has been induced by an agent having authority in such matters; and (3) only when special circumstances make it highly inequitable or oppressive not to estop the agency . . . As noted, this exception applies where the party claiming estoppel would be subjected to substantial loss if the public agency were permitted to negate the acts of its agents." (Internal quotation marks omitted.) Fadner v. Commissioner of Revenue Services, 281 Conn. 719, 726, 917 A.2d 540 (2007). Further, "[a] party seeking to justify the application of the estoppel doctrine by establishing that a public agency has induced his actions carries a significant burden of proof." Id., 727.
In the context of tolling statutes of limitations, federal courts have applied equitable estoppel "in cases where the defendant misrepresented the length of the limitations period or in some way lulled the plaintiff into believing that it was not necessary for him to commence litigation." Cerbone v. International Ladies' Garment Workers' Union, 768 F.2d 45, 50 (2d Cir. 1985). Connecticut courts have generally applied "the doctrine of equitable estoppel to bar a party from asserting the statute of frauds as a defense so as to prevent the use of the statute itself from accomplishing a fraud." Glazer v. Dress Barn, Inc., 274 Conn. 33, 60, 873 A.2d 929 (2005). In the present case, there has been no fraud alleged or proven to exist. Further, any misrepresentations made to the plaintiffs were not intended to "lull" them into delaying the assertion of their rights. Therefore, the theory of equitable estoppel is inapplicable. See H.J. Kelly Associates v. Meriden, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 03 0285781 (January 17, 2008, Taylor, J.).
B. Professional Malpractice
Applying professional malpractice standards to municipal building officials appears to involve a case of first impression. Therefore, the court must determine whether general principles of professional malpractice are applicable to the facts of this case. Although it would be logical to assume that professional malpractice is limited to traditional professions, such as doctors, lawyers, accountants, architects and engineers, Connecticut's definition appears to be more encompassing. However, professional malpractice is not necessarily limited to these traditional professions. "Professional persons in general, and those who undertake any work calling for special skill, are required not only to exercise reasonable care in what they do, but also to possess a standard minimum of special knowledge and ability." (Emphasis added.) W. Prosser W. Keeton, Torts (5th Ed. 1984) § 32, p. 185.
For purposes of a professional malpractice statute of limitations, American Jurisprudence defines a "profession" in more limited terms than appears to be applicable under Connecticut law. "For purposes of a professional negligence statute of limitations, a `profession' generally refers to any vocation for which a particular four-year college degree is required before licensing, or any vocation for which any graduate degree is required as a condition of state licensure without regard to the nature of the undergraduate degree; and a professional act or service is one arising out of a vocation, calling, occupation, or employment involving specialized knowledge attained from often long and intensive preparation and instruction in skills and methods, and the scientific, historical, and scholarly principles underlying such skills and methods." 51 Am.Jur.2d 543, Professional Negligence or Malpractice § 143 (2000). By this standard, a building official might not be viewed as a member of a profession. Although Giarratana testified that he obtained a B.S. degree in engineering, the statutory requirements for licensure as a building official do not specifically call for a four-year college degree. General Statutes § 29-261(a) provides: "The building official, to be eligible for appointment, shall have had at least five years' experience in construction, design or supervision and assistant building officials shall have had at least three years' experience in construction, design or supervision, or equivalent experience as determined by the Commissioner of Public Safety. They shall be generally informed on the quality and strength of building materials, on the accepted requirements of building construction, on the accepted requirements of design and construction relating to accessibility to and use of buildings by the physically disabled, on good practice in fire prevention, on the accepted requirements regarding light and ventilation, on the accepted requirements for safe exit facilities and on other items of equipment essential for the safety, comfort and convenience of occupants and shall be certified under the provisions of section 29-262." General Statutes § 29-262(a) provides in relevant part: "The State Building Inspector and the Codes and Standards Committee acting jointly, with the approval of the Commissioner of Public Safety, shall require passage of a written examination and successful completion of a suitable educational program of training as proof of qualification pursuant to section 29-261 to be eligible to be a building official." Section 29-262-2b(b) of the Regulations of Connecticut State Agencies further provides that "Each building official shall attend a minimum of ninety (90) hours of approved continuing education programs over consecutive three-year periods Building official duties, minimum qualifications and continuing education requirement."
Our Supreme Court has previously defined professional negligence or malpractice 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." (Internal quotation marks omitted.) Santopietro v. New Haven, 239 Conn. 207, 226, 682 A.2d 106 (1996); see Trimel v. Lawrence Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 357-58, 764 A.2d 203, appeal dismissed, 258 Conn. 711, 784 A.2d 889 (2001). "In every professional malpractice action, the plaintiff is required to prove that (1) the defendant was obligated to conform to a recognized standard of care, (2) the defendant deviated from that standard, (3) the plaintiff suffered some injury, and (4) the defendant's act in departing from the standard of care caused the plaintiff's injury . . . No matter how negligent a party may have been, if his negligent act bears no relation to the injury, it is not actionable." (Citations omitted; internal quotation marks omitted.) Gordon v. Glass, 66 Conn.App. 852, 855-56, 785 A.2d 1220 (2001), cert. denied, 259 Conn. 909, 789 A.2d 994 (2002). "As a general rule, for a plaintiff to prevail in a [professional] malpractice case in Connecticut, he must present expert testimony to establish the standard of proper professional skill or care . . . The requirement of expert testimony in malpractice cases serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant's actions in light of that standard. (Citations omitted; internal quotation marks omitted.) Vona v. Lerner, 72 Conn.App. 179, 188, 804 A.2d 1018 (2002), cert. denied, 262 Conn. 938, 815 A.2d 138 (2003).
In Santopietro v. New Haven, supra, 239 Conn. 207, the court applied the standards of professional malpractice to softball umpires, although it found insufficient evidence presented at trial to impose liability. "We note that the plaintiffs' claims in the present case are akin to allegations of professional negligence or malpractice, which we have previously 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.' . . . An umpire obtains, through formal training and experience, a familiarity with the rules of the sport, a technical expertise in their application, and an understanding of the likely consequences of officiating decisions. As a result, the umpire possesses knowledge of the standard of care to which an umpire reasonably may be held, and of what constitutes a violation of that standard, that is beyond the experience and ken of the ordinary fact finder. Moreover, the fact finder's lack of expertise is exacerbated by the highly discretionary nature of the umpire's task. Thus, the fact finder must determine not just whether in hindsight the umpire erred, but also whether the umpire's error constituted an abuse of his broad discretion." (Citation omitted.) Santopietro v. New Haven, supra, 239 Conn. 226-27.
If the exercise of discretion or a "judgment call" by an umpire in a softball tournament may form the basis for professional malpractice under Connecticut law, the court sees no reason for generally excluding building officials from the scope of this cause of action. Serious injuries may result from the breach of a duty by either of these officials. The issuance of a CO by a building official is the condition precedent imposed for closing title, from which the benefits and obligations of new home ownership arise. The CO therefore allowed for a significant investment to be made by the plaintiffs and the financial institution to which they were now obligated. Given its tremendous legal and financial importance, the court considers the issuance of a CO to involve too important a "judgment call" to escape professional responsibility.
In his testimony before the court, the state building inspector considered the issuance of a CO to be a "judgment call" and all three experts called by the plaintiffs concurred that, in their judgment, a CO should not have been issued in this case. Based upon credible expert testimony, the court concludes that under the facts of this case the issuance of a CO was an error in Giarratana's professional judgment. The court therefore considers this to be a sufficient evidentiary basis for a finding of professional malpractice, subject to the constraints of municipal liability and causation.
C. Municipal Liability for Reckless Disregard of Health and Safety
The plaintiffs claim that Portland should be held liable under General Statutes § 52-557n. The defendants claim that they are immune and are not legally liable for the plaintiffs' damages unless it has been shown that Giarratana's acts constitute "a reckless disregard for health or safety." See General Statutes § 52-557n(b)(7) and (8). In arguing their special defenses, the defendants claim there is insufficient evidence of intent for recklessness to be found in this case, as that term is defined in the case of Dubay v. Irish, 207 Conn. 518, 542 A.2d 711 (1988).
General Statutes § 52-557n(a)(1) provides in relevant part: "Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . ."
General Statutes § 52-557n(b) provides in relevant part: "Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from . . . (7) the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety; (8) failure to make an inspection or making an inadequate or negligent inspection of any property, other than property owned or leased by or leased to such political subdivision, to determine whether the property complies with or violates any law or contains a hazard to health or safety, unless the political subdivision had notice of such a violation of law or such a hazard or unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances . . ."
In Dubay, the Supreme Court found there was no evidence of recklessness in the record to support the plaintiff's claim that a different limitation period applied, other than to actions sounding in negligence. Dubay v. Irish, supra, 207 Conn. 531-35. In making this determination, the court defined recklessness as "a state of consciousness with reference to the consequences of one's acts . . . It is more than negligence, more than gross negligence . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. (Citations omitted; internal quotation marks omitted.) Id., 532.
In discussing the elements of recklessness, the court used distinguishing definitions of "wanton misconduct" and "willful misconduct," as follows: "Wanton misconduct is reckless misconduct . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action . . . Wilful misconduct has been defined as intentional conduct designed to injure for which there is no just cause or excuse. [Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances . . . Not only the action producing the injury but the resulting injury also must be intentional." (Citations omitted; internal quotation marks omitted.) Dubay v. Irish, supra, 207 Conn. 532-33.
While the distinction drawn by the court in Dubay would logically lead to the conclusion that wilfulness requires any resulting harm to be intentionally rather than wantonly or recklessly inflicted, the court concluded that there was no distinction between these specific terms. "While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. `The result is that "wilful," "wanton," or "reckless" conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention . . .'" Dubay v. Irish, supra, 207 Conn. 533, citing W. Prosser W. Keeton, Torts (5th Ed. 1984) § 34, p. 214.
In Dubay, however, the court was not required by the evidence to distinguish between states of mind involving the wilful intent to cause harm or, by contrast a wanton or reckless indifference to harm that is likely to result from the breach of a duty. Other Connecticut cases have, however, drawn this distinction. In Bordonaro v. Senk, 109 Conn. 428, 147 A. 136 (1929), a prior case relied upon in Dubay, the court clarified the distinction, as follows: "Wanton misconduct is more than negligence, more than gross negligence. It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of action. Wilful misconduct is intentional misconduct, and wanton misconduct is reckless misconduct, which is the equivalent of wilful misconduct. When we say that wanton misconduct is the equivalent of wilful misconduct, we do not intend to characterize these terms as equivalents of each other, but as equivalent in result. Wilful or intentional misconduct and wanton misconduct are different concepts of wrongful or improper misconduct, as we have shown, but in their resultant they are alike in their seriousness and gravity, and the law subjects whoever is guilty of either form of misconduct to like rules and visits upon each a like liability." (Emphasis added; internal quotation marks omitted.) Id., 431-32; see D. Wright, J. Fitzgerald W. Ankerman, Connecticut Law of Torts (3d Ed. 1991) § 62, p. 157-58; see also Dillman v. Allen-Warren, Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 00 0167578 (July 22, 2002, Sheldon, J.) (32 Conn. L. Rptr. 722).
In the case before the court, there is no evidence to support the conclusion that Giarratana intentionally or wilfully harmed the plaintiffs. There was, however, sufficient evidence of a wanton or reckless disregard to the consequence of his failure to adequately and professionally perform a final inspection before issuing a CO for the plaintiffs' home. In particular, the court highlights the following facts: (1) At the time of the final inspection, Giarratana knew that Fugge was an unlicensed builder in the process of selling a home to consumers; (2) Giarratana was angered over being pressured by the plaintiffs and the state building inspector to issue the CO; (3) the resulting final inspection lasted less than 10 minutes and; (4) the violations of the code were numerous and obvious to the trained eye. The court finds these combined factors resulted in the reckless breach of Giarratana's duty to ensure that the plaintiffs' home met the minimum standards required by the building code.
The court notes that its finding is limited to this act of recklessness. Although there was evidence of other negligent inspections presented in this case, those inspections did not constitute recklessness. For example: (1) Conflicting evidence was presented on whether foundation drains were installed. The court finds by a preponderance of the evidence that they were installed. (Exhibits H, I and T.) Although there was no visible drain seen by experts outside the house, Kelsey credibly testified that he saw the drain as originally designed and ordered it connected to the storm drain. Any negligence in the installation or inspection of the foundation drain system, however, is not within the relevant standard of liability in this case. (2) The insulation inspection was done seven months prior to the plumbing inspection. Although this may be a sequence fraught with negligent oversights, the court cannot conclude this constitutes a reckless disregard for health or safety based upon the evidence presented at trial. Furthermore, the insulation inspection indicates that it did not include the kitchen and bath. Also, despite contradictory evidence, the court finds support for the conclusion that the electrical inspection was done before the insulation inspection, presumably to ensure proper installation. (Exhibits J and K.) (3) The support beam for the deck is inadequate for the load. The engineer reviewing the installation informed Giarratana and the plaintiffs of this structural problem on October 5, 2003. This determination followed the issuance of the CO and closing because Giarratana negligently accepted Fugge's oral representation that the beam had been approved by Michael Wrang of Wrang Associate Engineers.
The court further notes that most of these inspections occurred prior to August 23, 2003 and were therefore outside the three-year statute of repose, as this case was filed on August 23, 2006. The court need not consider tolling the statute of repose due to a continuing course of conduct, as the court has found that these acts do not constitute actionable recklessness.
To overcome the municipal immunity provisions found in General Statutes §§ 52-557n(b)(7) and (8), however, a finding of recklessness alone is insufficient for liability to be found by the court, as the exception to immunity is further limited to instances constituting "a reckless disregard for health or safety." Therefore, the defendants' liability is limited to those reckless acts identified in the record as jeopardizing the plaintiffs' health or safety.
Although all the experts called to testify at the trial agreed that this home should never have been certified for occupancy, there was no evidence showing this home to be unfit for human habitation. In specifically addressing this issue, Laux stated that the building code violations he observed did not require the removal and relocation of the plaintiffs from the premises, based upon their safety. However, the court does not conclude that liability ought to be limited to health and safety violations so overwhelming as to render the premises uninhabitable. And although every building code violation may arguably relate to health or safety, the court will limit its findings of damages to observable violations resulting from recklessness which have specifically been proven to jeopardize health or safety.
D. Damages Resulting From a Reckless Disregard for Health or Safety
The damages in this case are limited to Giarratana's reckless act of conducting a final inspection and issuing a CO without due regard for the health or safety of the plaintiffs. This high standard for imposing liability substantially reduces the plaintiffs' recovery of damages, which in their totality amount to approximately $135,000. (Exhibit 5.) This figure is primarily comprised of substantial damages attributable to a defective deck and defective drainage, for which the court finds the defendants are not liable under the standard of recklessness. The court further finds there was insufficient evidence presented at trial to prove that, more likely than not, the disputed foundation drainage system was not installed. The court finds it was more likely than not installed, and perhaps inspected, negligently. (Exhibits H, I and T.) Further, the retaining walls, although observable at the final inspection, were approved in a timely engineering report. Although the final engineering report for the deck was not timely, the court cannot find it to be more than negligent to accept the oral representation of the builder that the deck was approved by the engineer. If the applicable legal standard were negligence, many of these damages would be includable in the court's award.
The defendants similarly cannot be liable for violations of the code which were unobservable at the time of the final inspection, such as the inadequate insulation and ventilation of the family room floor. This damage resulted from a negligently performed inspection that occurred at a time barred by the applicable statute of limitations. (Exhibit K.) This violation was also discovered through the use of destructive testing, inapplicable to the standard procedures employed during a final inspection. The court also finds that other violations resulting in substantial damages pose no immediate risk to health or safety, such as those relating to energy efficiency and improper building techniques resulting in inferior durability and requiring replacement or repair. Examples of these damages include cracked ceilings, unsealed or gaps in walls, and uninstalled vents for the clothes dryer and bathrooms. In addition, some of the health and safety violations included in Laux's and Parker's inspection reports and readily observable at the final inspection were not supported with estimates of damages, upon which the court might properly rely in place of its own speculation which would be improper. Many of these were, however, minor in nature compared with those in Mulvey's detailed report of damage estimates. (Exhibit 5.)
IV. CONCLUSION
The court finds for the plaintiffs on counts six and seven. Based upon the applicable law and facts previously determined by the court, damages are awarded as follows: (1) final installation of the sewer gas vent; (2) fire rate ceiling and duct work in garage in the amount of $4,737; (3) relocate furnace and power vent system, $2,965; (4) vent oil tank $3,524; (5) re-pitch sanitary waste pipe, $468; (6) replace first-floor tiles, which were installed in manner likely to cause damage to bare feet, $1,917; (7) secure wiring above family room, $75; (8) reset handrail, $88; and (9) seal attic duct work, as blown insulation may be incorporated in the ambient air within the home, $841. These damages total $14,615, plus the previously expended amount to install the sewer gas vent.
The court has no record of the cost of this repair which, by all accounts, has been completed.
The court makes no award on count eight, to the extent it is duplicative of count six or, alternatively, claims common-law recklessness. To the extent it is a claim based upon common-law recklessness, as opposed to professional malpractice, it is time barred by the application of General Statutes § 52~584.
To the extent this count alleges common-law recklessness, to which the provisions of General Statutes § 52-584 may apply, the court has determined there was no fraud or misrepresentation to which tolling principles would apply.