Opinion
FSTCV166030347S
07-17-2018
The HARTFORD FINANCIAL SERVICES GROUP, INC. v. RED HAWK FIRE & SECURITY, LLC
UNPUBLISHED OPINION
POVODATOR, J.
Background/Facts
Currently before the court is the defendant’s motion for summary judgment. The defendant claims that there is a fatal causation gap in the claims being asserted against it, and therefore contends that it is entitled to summary judgment.
In a number of respects, a "scorecard" is required. The three Hartford Insurance entities had insurance policies with three professional offices in a building in Norwalk, all of which sustained damages as a result of a flooding condition caused by a burst water pipe. The plaintiffs paid the resulting claims, in an aggregate amount of approximately $1.5 million, and commenced this action against the named defendant, claiming it was responsible for the flooding condition.
The allusion to the need for a "scorecard" is on a number of levels. Initially the action was brought in the name of Hartford Financial Services Group, Inc. as the only plaintiff (subrogee). The current amended complaint identifies two additional Hartford-related entities, Hartford Casualty Insurance Company and Hartford Fire Insurance Company.
The addition of the "new" Hartford Insurance entitles was done in a somewhat nonstandard manner- initially, a request to amend was filed (# 128.00), identifying the intent to cite in additional parties, but without any formal motion being filed to accomplish that goal. Almost 8 months later, a formal motion to cite in the additional plaintiffs was filed and granted.
There have been a number of iterations of the complaint. In addition to the original complaint dated November 7, 2016, there have been additional amended complaints, filed on July 5, 2017 (# 132.00) and the current operative amended complaint filed on February 13, 2018 (# 156.00). The named defendant, Red Hawk, has filed numerous iterations of an answer and special defenses, the initial answer being filed on December 20, 2016 (# 101.00), with amended responses pleadings filed on February 2, 2017 (# 108.00), August 10, 2017 (# 134.00) and March 12, 2018 (# 160.00).
On February 14, 2018, the named defendant filed its motion for summary judgment with a supporting memorandum. The plaintiffs filed their opposition on March 14, 2018 (# 162.00), the defendant filed a reply on March 28, 2018 (# 166.00), the plaintiff filed a supplemental memorandum (# 167.00) on April 5, 2018- after argument- and the defendant filed an objection to that post-argument memorandum (# 168.00) the next day which was withdrawn that same day and replaced by a new objection to the post-argument memorandum (# 170.00). Not to let the matter come to rest, the plaintiff then filed a further memorandum (# 171.00) on April 18, 2018. In an order issued on April 23, 2018, indicating that it would take into consideration the positions articulated by the parties in their post-argument submissions.
In order to evaluate a motion for summary judgment, the court needs to identify the nature of the claim and the nature of defenses being asserted. The plaintiffs have consistently alleged a single count of negligence. Notwithstanding the general characterization of a claim of negligence as being a matter of law rather than equity (recognizing that subrogation may implicate other issues), three of the five special defenses asserted in the latest responsive pleading filed by the defendant assert equitable-related claims and a fourth defense is of questionable propriety under Practice Book § 10-50.
The second special defense appears to allege a failure to mitigate and some level of comparative fault, but under the rubric of estoppel (without any identified reliance as is generally required for a claim of estoppel). The fourth special defense also appears to assert some level of comparative fault, but characterizing it as unclean hands. The fifth special defense asserts a failure to preserve the evidence and more promptly alert the defendant to the problem, characterizing such conduct as coming within the scope of laches (notwithstanding the existence of a statute of limitations which usually if not always precludes any assertion of laches; Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 399, 119 A.3d 462, 492 (2015) ). While the substitution of an insurer for its insured, after payment of a loss, is often described as equitable subrogation, Amica Mutual Insurance Company v. Muldowney, 328 Conn. 428, 180 A.3d 950 (2018), the practical effect is the authorization of what amounts to a substitution of parties (often but not necessarily based on a contractually-required assignment). The claim against the allegedly negligent party generally proceeds as if it were a negligence claim brought by the insured for its losses. Although it is possible for equitable defenses to exist in addition to legal-type defenses, the court sees no value in adopting a Procrustean Bed approach of forcing legal defenses such as comparative fault, etc., into an equitable framework of unclean hands, etc.
The first special defense alleges a failure to assert a claim upon which relief can be granted, which generally is not recognized as a special defense (it is a partial definition of a motion to strike (Practice Book § 10-39) and does not satisfy the definitional aspects of Practice Book § 10-50), and the remainder of the defense asserts that it was not the defendant’s responsibility which is in the nature of a denial rather than an assertion of facts consistent with the complaint but otherwise show a lack of legal responsibility (cf. Practice Book § 10-50).
Against this backdrop, the defendant’s motion for summary judgment states the following:
Pursuant to a written agreement between Red Hawk and I.Park, Red Hawk agreed to periodically test and inspect the building’s sprinkler and fire alarm systems and make written recommendations to I.Park. Red Hawk tested and inspected these systems and made written recommendations to I.Park, as required. I.Park’s property manager, however, did not read Red Hawk’s recommendations and did not take any action to address the deficiencies the reports identified. As a matter of law, therefore, there is no causal connection between any act or omission by Red Hawk and the subject flood loss.
I.Park was the owner of the building that was flooded, and in which the plaintiffs’ insureds were tenants whose property had been damaged and whose businesses had been interrupted. I.Park was brought into this action by the defendant, as an apportionment defendant; see # 118.00.
Although perhaps not articulated in these precise terms, the plaintiffs contend that the defendant has misstated or overstated the extent to which the defendant can point to I.Park.
Discussion
The generally-applicable standards for summary judgment are sufficiently well-established that they do not need to be recited in detail. See, e.g., Windsor Federal Savings & Loan Assn. v. Reliable Mechanical Contractors, LLC, 175 Conn.App. 651, 658-59 (2017). At its most basic or simplified level, summary judgment may be granted if the moving party can establish "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks and citation, omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228 (2015).
As a starting point for addressing the issues presented by the pending motion, the court identified the issues raised by the defendant in its special defenses, in an attempt to identify the universe of issues that might be implicated by the motion, other than the issues available under a simple denial. The defendant does not seem to be claiming a right to summary judgment based on any of its special defenses. It instead is relying on a break in the chain of causation, that anything that it might have done wrong does not have an uninterrupted flow to the harm suffered, due to the intervening conduct of I.Park, the owner of the premises where the loss occurred. The underlying loss was flooding damage due to a burst water pipe that was part of a sprinkler system, where the water in the pipe froze during the winter.
The defendant alludes to the Supreme Court decision in Barry v Quality Steel Products, Inc., 263 Conn. 424, 435 (2003). In Barry, the court stated that negligence of a third party could not constitute a superseding cause that would relieve a tortfeasor of liability for its negligence, just by virtue of its characterization as a superseding or intervening cause. Instead, such third-party negligence would be a matter to be considered by the factfinder in connection with a determination of the existence of proximate cause. Thus, the quoted language ("may break [the] causal connection if ... it alone, without [defendant’s] negligence contributing thereto in any degree, produces the injury"). This is a recognition of a permissive quality to the factfinding process ("may break [the] causal connection") and as a corollary, assumes a determination that the defendant’s negligence did not "contribute thereto in any degree."
Conceptually, that creates a near-insurmountable problem for summary judgment. Summary judgment is premised on the absence of any material issue of fact, but weighing the severity of claimed intervening negligence, or even superseding cause (based on intentional or criminal conduct) in a post-Barry environment, requires weighing of evidence and determining which causes substantially or overwhelmingly contributed to the causation of injuries, presumptively beyond the scope of summary judgment. Only if reasonable factfinders could not disagree such that there is only one possible outcome, might summary judgment be available. The defendant argues that this is such a situation.
An initial concern is that the defendant may not have addressed, adequately, the existence of independent parties, with independent interests and rights. The plaintiffs, on behalf of their insureds, claim that the defendant should have explained the problems to the building owner’s managing personnel so that appropriate action could/would have been taken prior to the occurrence giving rise to this litigation. The defendant insists that the fact that the owner’s representative repeatedly signed documentation, at the time reports were provided, to the effect that there had been a discussion of the contents of the report, precludes any dispute as to the absence of, or need for, a discussion. The problem is that in the context of a claim by the tenants that the defendant should have explained the problem to the owner’s representative (building manager), the binding effect of such a signature only seems to be potentially binding on the owner- the defendant has not explained a basis for the "leap" that the owner’s representative’s signatures would be binding or conclusive on the plaintiffs or their insureds.
Further, the authorities cited by the defendant do not unambiguously state that a signature, in such a context, is absolutely conclusive; rather, there may be a presumption arising from a signature, but once the plaintiffs put into issue the factual reality of any discussion of the contents of the reports, the burden remains on the defendant to establish the absence of any material issue of fact. Especially in an apportionment context, the fact that the building owner may have acknowledged a discussion- which may not actually have taken place or may have been pro forma in nature- does not preclude the plaintiff from establishing that there should have been a substantive or more substantive discussion as to problems and the need for prompt attention as appropriate.
Specifically, the cases cited by the defendant are not as absolute as suggested. The language quoted by the defendant from Phoenix Leasing, Inc. v. Kosinski, 47 Conn.App. 650, 654 (1988) invokes the principle in the context of the signing of a "formal contract," not in more general terms and not specifically in the context of an acknowledgment of receipt of a report and claimed discussion thereof (seemingly more informal). (It is also identified as a "general rule" that is subject to exceptions.) The defendant also cites First Charter National Bank v. Ross, 29 Conn.App. 667, 671 (1992), which also identifies the "general rule" and then goes on, as quoted by the defendant, to observe that "[i]t is within the trial court’s discretion to determine whether, under the circumstances, the defendant was not diligent in trying to read the documents she signed and whether to charge her with knowledge of their contents." The defendant fails to explain how a determination that "is within the trial court’s discretion" can be made in the context of summary judgment- summary judgment is premised on entitlement to judgment as a matter of law, not as a result of the exercise of discretion.
Still further, the mere existence of "a discussion" of the report does not identify the substance of the discussion and whether it encompassed the issues presented by this lawsuit. Reminiscent of the axiom that sometimes to ask the right question, you need to know 90% of the answer, and even assuming each problem identified in the report was included in the discussion, what if any attention was paid to any urgency or an appropriate prioritization? A report generated in the spring identifying a pipe in an unheated area of the building would have less urgency than if the report were in November, whereas the lack of a functioning alarm might be sufficiently urgent without regard to timing as to require identification as an ASAP situation. The record before the court lacks anything conclusive relating to any sense of urgency that may have been conveyed in the discussion that allegedly took place.
Query whether after multiple reports/multiple inspections, with no corrective action seemingly being taken, there might be an obligation to take steps to emphasize urgency or upgrade the level of urgency, or at least inquire as to what remedial plans are being considered.
From an alternate perspective, even if there were a binding effect to the signatures acknowledging discussions of the contents of reports, that would directly implicate the apportionment complaint. The plaintiffs have asserted that the defendant was negligent, and it is a jury issue as to the extent to which responsibility should be allocated to the apportionment defendant.
There are at least two ways of looking at the defendant’s contentions. Although framed as a break in causation, is the defendant effectively asserting that the property owner and its management are 100% responsible such that in an apportionment calculation, there is 0% left to be attributed to the defendant? It does not appear to be taking such an extreme position for purposes of this motion. Or. are they acknowledging that a jury might possibly conclude that the defendant was negligent, to some degree, but that the negligence of the owner and its management cut off any possible negligence? But is the latter formulation essentially a circuitous way of invoking a pre-Barry claim of superseding negligence? Even in a post-Barry superseding cause scenario (see, e.g., Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 971 A.2d 676 (2009) )- where the doctrine survives in the case of intentional or criminal conduct- it is for the jury to decide whether the superseding cause does, in fact, cut off the otherwise existing proximate cause. While it may be true that in occasional (rare) circumstances, there may be a summary judgment quality level of interruption of causation in a negligence situation, this case does not seem to come within the range of cases cited by the defendant. Post-Barry, a party remains able to argue that the negligence of another party is so overwhelming as to constitute a break in the chain of proximate cause, but it is under a "standard" proximate cause analysis, not a special rule whereby the conduct may be deemed to supersede the negligence of the moving party. And of course, for purposes of this motion, there must be sufficient certainty (no material issue of fact) to allow the question to be removed from the province of the factfinder at trial.
The Supreme Court is revisiting the relationship between proximate cause and superseding cause; see, Snell v. Norwalk Yellow Cab, Inc., 325 Conn. 927, 169 A.3d 232 (2017):
As in Snell, where post-Barry superseding cause for intentional or criminal acts was deemed applicable and the jury concluded that it overrode the traditional proximate cause analysis- see footnote 6, above.
In Winn v. Posades, 281 Conn. 50, 913 A.2d 407 (2007), the court repeatedly returned to the absence of evidence as to how the accident happened and the related absence of any evidence that the conduct of the defendant was even a factual cause of the accident, much less a proximate cause. ("In the present case, the Appellate Court properly concluded that the plaintiff had presented insufficient evidence of the actual cause, or cause in fact, of the collision," 281 Conn. 60; "The Appellate Court affirmed the judgment of the trial court, concluding that the plaintiff had failed to present evidence of how the accident actually happened" 281 Conn. 53 (and similar language at 281 Conn. 56). Note that this implicates more than a lack of proximate cause; it also encompasses a lack of evidence as to the existence of some level of negligent conduct that might constitute proximate cause. Cf. Burton v. City of Stamford, 115 Conn.App. 47 (2009); cert. denied, 293 Conn. 912 (2009) (distinguishing Winn).
Similarly, in Paige v. Saint Andrew’s Roman Catholic Church Corp., 250 Conn. 14, 734 A.2d 85 (1999), upon reconsideration, the Supreme Court concluded that there was insufficient evidence to support a finding of causation The point is brought into sharper focus by the concurring opinion of Justice Palmer, explaining why he was now with the majority, highlighting the absence of evidence of what really had happened. As with Winn, this lack of evidence as to what really had happened spanned questions of proximate cause and the existence of negligent conduct, with the dissent arguing that the evidence was sufficient to allow suitable inferences of negligent conduct and causation. Simplistically, if it is impossible to identify a negligent act, then it must also be impossible to state that the (unidentified) negligence was a proximate cause (or factual cause) of the plaintiff’s injuries.
Perhaps closest is defendant’s reliance on Kumah v. Brown, 130 Conn.App. 343, 353, 23 A.3d 758, 764 (2011), where the claimed negligence of the defendant had set in motion conduct of other actors who, in turn, had created the condition that the plaintiff blamed for his accident. In that case, the court summarized the exceptional nature of the facts:
In summary, this case presents one of the rare circumstances in which the trial court properly may find a lack of proximate cause as a matter of law because "the mind of a fair and reasonable [person] could reach only one conclusion ..." (Internal quotation marks omitted.) Alexander v. Vernon, supra, 101 Conn.App. at 485, 923 A.2d 748. We conclude that there are no material facts at issue that could permit a trier of fact to draw an unbroken line of causation between Brown’s operation of his vehicle at 1:50 a.m. and Kumah’s collision with the fire truck at 4:10 a.m... 130 Conn.App. 353.
The negligence of the defendant may have been led to creation of the conditions that led to the plaintiff’s later accident, but it had no reasonable/logical connection to causation other than a literal but-for causation- if the earlier accident had not occurred, there could not have been a later accident (at least in the same manner). But it was the emergency responders, and what they did (or didn’t do) in the hours after the accident involving the defendant, that caused the conditions that the plaintiff characterized as the cause of his injuries. (Indeed, similarly captioned decisions, Kumah v. Brown, 127 Conn.App. 254, 258, 14 A.3d 1012, 1015 (2011), aff’d, 307 Conn. 620, 58 A.3d 247 (2013), allowed the plaintiff to proceed against the emergency responders with respect to their claimed responsibility for the accident, the appellate decisions rejecting claims of governmental immunity and highway defect exclusivity under § 52-557n.)
A distinction of uncertain magnitude exists between Kumah and this case. In Kumah, there was initial conduct by the defendant, claimed to have been negligent, with ensuing conduct by numerous actors over a period of time, changing the circumstances that eventually were encountered by the plaintiff. Here, however, the intervening actor was a negative or passive actor- failed to do anything. Therefore, to the extent that the defendant was negligent (an issue beyond the scope of this motion), the defendant is arguing that the failure of a third party to take steps to avoid the eventual consequences of its negligence was, as a matter of law, an interruption of the chain of causation. (The defendant has not identified any authority or rationale for finding inaction by a third party with respect to correcting a problem as an interruption in proximate cause, as a matter of law.)
Subject to the ability of the defendant to argue at trial that it did not do anything that might be characterized as negligence, there is something of a heads-I-win-tails-you-lose quality to the proximate cause argument being advanced. The defendant is arguing that the property owner’s failure to pay attention to the defendant’s reports and take any corrective action breaks the continuity needed for proximate cause (and likely would argue similarly if the reports had been "carefully" read but ignored), but if the property owner had taken (inadequate) remedial action, the argument for a break in proximate cause might be even stronger (given intervening active conduct). But that seems to be indistinguishable from an argument that the defendant’s conduct, as a matter of law, was too remote, because it would not matter what was or was not done subsequently- and ignores the claimed negligent quality of the inspection and reporting process itself. (Of course, if successful remedial action had been taken by the property owner, there would have been no loss at all.)
These cases typify the range of scenarios involving questions of proximate cause. Is there sufficient evidence as to what happened, to allow an inference of causation much less proximate cause? Is there such an attenuation, involving multiple intervening variables, that would require- not just permit- a finding of a lack of proximate cause notwithstanding evidence of factual causation?
In the case at bar, there is little uncertainty as to what happened, or why. There is no string of intervening events and actors- just one actor who did not act, with a material issue as to foreseeability. There is a related material issue as to whether the defendant, through its inspectors, adequately communicated the need for action to the non-acting actor. There is an issue as to whether the defendant fully performed its required duties.
One of the points relied upon is that the property manager testified that he knew that water in a pipe was subject to freezing if exposed to sub-freezing temperatures, such that he did not need to be told that pipes containing water (such as the pipes in the wet sprinkler system) needed to be protected from exposure to low temperatures. The pipes in question, however, were not directly exposed to the cold temperatures in the hallway/catwalk (as they were hidden in the ceiling)- aside from the difference between theoretical/conceptual knowledge and applied knowledge ("there is a problem here"), there is at least an issue as to whether he was aware of the temperatures in the areas not obviously exposed to hallway temperatures. More importantly, is that but an aspect of third-party negligence or, as a matter of law, an interruption of proximate cause?
Likewise, if there are periodic written reports outlining deficiencies, which are not read by the property manager as recipient (and therefore lacking in any follow-up by the recipient), is that but an aspect of third-party negligence or, as a matter of law, an interruption of proximate cause? Is there more clearly a material issue of fact when the property manager has testified that he expected the inspectors to explain whatever needed to be done, and that when he signed the reports as having been discussed, that was not accurate? Is there more of a factual issue if the property manager did not categorically deny reading all reports but rather that he may have reviewed some in a cursory fashion?
Initially looking only at the exhibits submitted by the defendant, but with an eye (as required) to viewing them in a manner giving the non-moving party the benefit of all favorable inferences, the following can be gleaned:
Ex 12 (truncated testimony)- property manager didn’t tell defendant’s inspector about unheated corridor because the inspector didn’t ask (and per continuation in Exhibit 16, because the inspector didn’t ask to go into hallway, and follow up questions include that the defendant’s inspector never was in the hallway).
Ex 15- property manager does not recall reading report prior to loss (as opposed to denial of having done so). He and inspector were not discussing problems during walkthrough and as report being created.
Ex 16- property manager never took defendant’s inspector into hallway and inspector never inspected hallway where leak occurred; inspector did not observe individual sprinkler lines (contrary to contract, as submitted, which seems to require inspection of all areas?).
Ex 17- property manager did not go over report (review report) even though signed that he did so- signed because he was asked to sign (also Ex. 18) Ex 19- property manager signed off on reports indicating that there had been a discussion with inspector but "that is not what happened." (On next page as submitted by plaintiff, "we did not go over it ...").
Query whether careful editing of submissions so as to eliminate unhelpful explanatory testimony is productive in context of summary judgment, where the issue is not whether there is evidence helpful to moving party but rather whether there is an absence of evidence favorable to non-moving party that might create a material issue of fact.
The court now will return to more practical (less technical) considerations with respect to a motion for summary judgment. It sometimes is said that a moving party, in connection with a motion for summary judgment, has the burden of making "a showing that it is quite clear what the truth is." Ferri v. Powell-Ferri, 317 Conn. 223, 228 (2015). Viewing the evidence in a manner most favorable to the nonmoving party, and recognizing that the non-moving party is entitled to the benefit of all reasonable favorable inferences from the facts presented to the court, is the evidence available so deficient that the moving party would be entitled to a directed verdict on the same evidence if the case were to be tried? Or. perhaps more simplistically, is the moving party entitled to a "so what" attitude with respect to all evidence, marshaled in a manner most favorable to the non-moving party?
Viewed from the perspective of the plaintiffs, there is evidence that the defendant never inspected the hallway/catwalk where the leak- due to a frozen pipe- occurred. The specific condition of that hallway/catwalk was never specifically identified as an area of concern much less an area in need of prompt if not immediate remediation as might have resulted from an actual inspection. Data-dense reports were provided quarterly (approximately) to the property manager, with a moderate number of areas of deficiency identified (8 or so), with typically only a small number of specific recommendations (2+). The property manager signed an acknowledgment of receiving the report and having discussed the report with the defendant’s inspector but denies that such post-inspection discussions took place. Conversely, the property manager indicated reliance upon spoken guidance as to what needed to be done, which typically was not forthcoming. The property manager lacked expertise and therefore relied upon the inspector. Although the property manager had general knowledge that pipes containing water should not be exposed to sub-freezing temperatures, there is no evidence that he actually was aware that the pipe that actually burst was likely to be exposed to such temperatures.
Accepting the facts in a manner most favorable to the non-moving parties, the property manager did not get the guidance he expected from the defendant- who in turn had never inspected the specific area that led to the flooding problem in question. The property manager may have had theoretical knowledge of the need to keep pipes with water above freezing temperatures, but there is at best ambiguous evidence that he had a level of awareness of that problem in the catwalk/hallway where the flood originated- and again, an area never inspected by the defendant.
The court will briefly address the subsequent pleadings filed by the parties. Approximately one week prior to argument, the defendant filed a supplemental memorandum. In that memorandum, the defendant emphasized that it was not relying on a pre-Barry concept of superseding cause, but rather was arguing that the intervening conduct of the property manager had cut off the continuity necessary for proximate cause. The court believes that it has addressed this distinction, adequately, above.
The defendant then proceeds to suggest that the opposition relies on matters unsupported by the record.
Hartford states- without citing to any pleadings, affidavits, or other proof- that "at no point did Mr. Roy ‘discuss’ ‘the inspection and suggested improvements’ with Larry Stewart as required by Red Hawk’s own Standard Form of Inspection Report." On the next page, Hartford continues- again without citation to any evidence- that Mr. Roy "did not discuss the inspection and suggested improvements with Larry Stewart; presumably because he did not endeavor to perform a complete walkthrough inspection."
In so stating, the defendant has reverted to a pure-advocacy posture, rather than the appropriate perspective of viewing the evidence in the light most favorable to the non-moving party and giving the non-moving party the benefit of all reasonable/favorable inferences. Although there may not have been specific citations, the record as submitted by the defendant (as excerpted above) already provided record support for the contentions identified by the defendant, and the plaintiff submitted the entire transcript of the property manager to ensure that everything he said, including explanations (and equivocations), was available to the court.
To the extent that the defendant goes on to argue that the burden is on the plaintiff to establish the existence of a material issue of fact, that burden arises only after the moving party has established, at least in a prima facie sense, the absence of any material issue of fact; until the moving party satisfies its burden, the non-moving party has no burden.
[W]e note that it is only [o]nce [the] defendant’s burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial. Romprey v. Safeco Insurance Company of America, 310 Conn. 304, 320 (2013) (internal quotation marks and citation, omitted).
The defendant then goes on to discuss the contents of a deposition that had not been submitted in support of the motion as originally filed. Putting aside the question of whether it is appropriate to present new factual contentions by way of a reply submission (not identified as addressing something new and unexpected that was raised in the opposition), the presentation of such new factual assertions while accompanied by an objection to an attempt by the adversary to address (in writing) such new allegations, suggests an attempt to take advantage of procedural technicalities. More problematic, however, and on a substantive level, is the futility of trying to counter the testimony of the property manager that there had been no discussions relating to reports, by evidence claiming that there had been such discussions. Does that accomplish anything more than emphasizing the existence of an issue of fact? (A material issue of fact?) The court cannot construe these facts as establishing the kind of attenuation or remoteness needed to rule, as a matter of law, that the defendant’s conduct could not have been a proximate cause of the losses sustained by the plaintiffs’ insureds.
Conclusion
At trial, the burden will be on the plaintiffs to establish the liability of the defendant, by a preponderance of the evidence, subject to any defenses that the defendant may be able to prove to the same standard. Now, however, the defendant must establish the absence of any material issue of fact- what this court sometimes refers to as summary judgment certainty- and the burden on the plaintiffs is merely to establish a material issue of fact to prevail (successfully resist summary judgment).
Viewed- arguably improperly- from the moving party’s perspective, there is ample evidence from which a jury could conclude that the properly owner and its manager bear substantial responsibility for the frozen-pipe-caused flooding, and a jury might conclude that there was a sufficient attenuation of any possible shortcomings of the defendant to preclude a determination of proximate cause. The question for the court is not whether the defendant might prevail on such grounds, or more generally whether there are ample grounds for the parties to point fingers at one another, but rather whether the facts are so one-sided that the defendant can say, with court-endorsed assurance, "not my fault" (in a proximate causation sense).
It is for a jury to weigh the respective fault of the parties, and to determine whether there is a sufficiently continuous causal connection between the claimed-negligent conduct of the defendant and the injuries sustained by the plaintiffs’ insureds- notwithstanding any post-Barry "intervening" negligence of the property owner and its manager.
For all of these reasons, the motion for summary judgment is denied.
Even the third special defense, asserting an unspecified statute of limitations, appears unusual to the extent that it seems to rely in part (and perhaps exclusively, given the dates of work performed by the defendant as compared to the date of commencement of this litigation (inspections in 2015, loss in 2016, and litigation commenced in 2016) ) on the conduct of third parties who allegedly created the conditions that led to the flooding and which are the focus of the claims in deficiencies in alerting the property owner of conditions in need of remediation- absent a claim of privity or some similar consideration, the timing of the allegedly tortious conduct of the defendant, not third parties, is generally the benchmark for a statute of limitations defense.
The plaintiff’s petition for certification for appeal from the Appellate Court, 172 Conn.App . 38, 158 A.3d 787 (2017), is granted, limited to the following issues:
1. Did the Appellate Court correctly determine that the judgment of the trial court should be affirmed on the basis that the doctrine of superseding cause applies in cases in which the conduct of a third party is criminally reckless?
2. Did the Appellate Court correctly determine that the trial court did not abuse its discretion when it denied the plaintiff’s motion to set aside the verdict and for a new trial?