The Connecticut Supreme Court’s October term begins today. Here is a look at the arguments for the first week of the term:

Tuesday, October 15, 2019

The second term of the year begins with the public interest appeal in State v. Kosuda-Bigazzi, S.C. 20341, in which the Court will decide whether the defendant was entitled to dismissal of the murder charges against her pursuant to State v. Lenarz, 301 Conn. 417 (2011), based on the state’s violation of the defendant’s attorney-client privilege. During a search of the defendant’s home, the police seized and read two files from a locked cabinet, one of which was labeled “Criminal Defense Attorney Oct 2017.” Both files contained substantially similar handwritten documents describing the killing of the defendant’s husband. The trial court denied the defendant’s motion to dismiss, concluding that the documents in one of the two files were not protected by the attorney-client privilege. The Court will determine whether the trial court properly denied the defendant’s motion to dismiss.

In the second case, Kos v. Lawrence & Memorial Hospital, S.C. 20256, the Court will decide whether to overrule Wasfi v. Chaddha, 218 Conn. 200 (1991), which held that it was proper to instruct a jury in a medical malpractice case that physicians may choose between acceptable alternative treatments without incurring liability solely because that choice may have led to an unfortunate result. The plaintiff claims that the “acceptable alternative treatments” instruction is no longer appropriate and that Wasfi should be overruled.

Wednesday, October 16, 2019

The Court will hear argument in two criminal appeals. In the first, State v. LaMantia, S.C. 20190, the Court will address whether a defendant may be found guilty of tampering with a witness by urging the witness via text message not to cooperate with the police shortly after the incident being investigated. Shortly after an altercation involving the defendant and the witness, the defendant sent the witness text messages urging him not to tell the police the truth about what happened. The issue is whether the defendant could be found to have intended to induce the witness to testify falsely in an “official proceeding” while the incident was still in the beginning stages of the investigation.

The second case, State v. Sawyer, S.C. 20132, involves the question whether the Connecticut Constitution requires a higher standard of proof than the United States Constitution in order to establish probable cause. The defendant, a member of the Holy Cross Brotherhood, was arrested for possession of child pornography after a fellow member reported to police that he saw the defendant looking at images on his computer of what appeared to be naked underage children. The defendant claims that, at least in circumstances in which a search warrant is issued when it is not known whether any crime was committed, the Connecticut Constitution requires a “more probable than not” standard in order to establish probable cause.

Thursday, October 17, 2019

The Court will hear argument in one family case and one criminal case. In Hall v. Hall, S.C. 20181, the Court will address whether the trial court abused its discretion by denying the parties’ joint motion to vacate a contempt order. The trial court initially found the plaintiff in contempt for unilaterally transferring money from a joint account to a personal account, in violation of a court order. The parties’ later jointly moved to open the judgment and vacate the order, in part on the basis that the plaintiff acted in reliance on the advice of counsel. The Court will decide whether the Appellate Court properly affirmed the trial court’s judgment denying the joint motion.

The second case is State v. Komisarjevsky, S.C. 18973, which arises from the defendant’s conviction for the 2007 home invasion and homicide of the Petit family in Cheshire. The Court will address, among other things, whether the trial court’s denial of the defendant’s request to transfer the trial from the Judicial District of New Haven violated his right to an impartial jury. The defendant claims that extensive pretrial publicity regarding the crime inflamed the passions of the community and infected the jury pool. The defendant also claims that the state violated his right to due process by failing to disclose evidence that would have supported his defense, including over 100 pages of letters written by his co-defendant.

Friday, October 18, 2019

The first week of the second term concludes with argument in one criminal case, State v. Joseph A., S.C. 20125, in which the Court will address the trial court’s duty to canvass a criminal defendant who waives his right to counsel. The defendant represented himself during arraignment and plea negotiations while he attempted to obtain counsel, but later waived his right to counsel and represented himself at trial. In the Appellate Court, the defendant claimed that the trial court improperly failed to canvass him about his right to counsel before allowing him to represent himself at arraignment and during plea negotiations. The Appellate Court affirmed, concluding that the trial court had no duty to canvass the defendant until he unequivocally invoked his right to self-representation during later pretrial proceedings. The Supreme Court will address whether the trial court had the duty to canvass the defendant about his right to counsel in the absence of an unequivocal invocation of his right to self-representation.

Here’s a look at the second week of the Connecticut Supreme Court’s First Term:

Monday, September 23, 2019

The first case of the week is State v. Blaine, S.C. 20087, in which the Court will decide whether reversal under the plain error rule is warranted where the trial court failed to instruct the jury in accordance with an Appellate Court decision that was on appeal by way of certification to the Supreme Court at the time of the instruction in question. The defendant claims that the trial court failed to instruct the jury in accordance with State v. Pond, 138 Conn. App. 228 (2012), aff’d, 315 Conn. 451 (2015), which held that a conspiracy conviction requires proof that the defendant had the specific intent to commit every element of the planned offense, including those elements of the underlying crime that do not require specific intent. The state claims that, because Pond was pending before the Supreme Court at the time of the instruction, the law was unsettled and reversal under the plain error rule is not available.

The second case, Rutter v. Janis, et al., S.C. 20122, involves General Statutes § 14-60, which allows an automobile dealer to loan a dealer license plate to a customer for “not more than thirty days in any year,” and protects dealers that comply with the statute from liability for damages caused by the operator of a motor vehicle that is displaying dealer plates. At issue is whether the thirty day time period includes the day on which the dealer plates are loaned to the customer, or whether the thirty days starts to run on the following day.

Tuesday, September 24, 2019

The related appeals in Jenzack Partners, LLC v. Stoneridge Associates, LLC, S.C. 20188 & 20189 arise from an action by the plaintiff, an assignee of a mortgage, seeking to foreclose on the mortgage. The defendant originally executed a guarantee in favor of the assignor, and also gave the assignor a mortgage on her property. The Court will address whether the plaintiff had standing to foreclose on the mortgage where the assignor never assigned the guarantee to the plaintiff. The Court will also decide whether the trial court properly admitted the plaintiff’s records concerning the amount due on the note under the business records exception to the hearsay rule, where the records incorporated information received from the assignor about the starting balance of the note about which the witness who authenticated the records did not have firsthand knowledge.

Wednesday, September 25, 2019

The Court will hear argument in two criminal cases that involve the ability of a party to raise unpreserved evidentiary claims on appeal when those claims are based on a precedential opinion released after final judgment. Both cases involve the Court’s recent decision in State v. Edwards, 325 Conn. 97 (2017), holding that a trial court must hold a hearing pursuant to State v. Porter, 241 Conn. 57 (1997), before admitting expert testimony regarding cell phone location data. In the first case, State v. Jackson, S.C. 20193, the Court will decide whether the Appellate Court properly declined to review the defendant’s unpreserved claim that the trial court abused its discretion by not holding a Porter hearing to assess the reliability of expert testimony concerning cell phone location data. In the second case, State v. Turner, S.C. 20186, the Court will decide whether the Appellate Court properly held that the defendant was not entitled to review of his unpreserved Edwards claim under either the plain error rule, or under the doctrine of State v. Golding, 213 Conn. 233 (1989), which allows review of unpreserved constitutional claims. Both defendants claim that they were entitled to review of their claims because the Supreme Court’s decision in Edwards was not released until after final judgment.

Thursday, September 26, 2019

The first term of the year concludes with Lafferty v. Jones, S.C. 20327, an interlocutory public interest appeal in the case against radio host Alex Jones and his companies, brought by surviving family members of victims of the Sandy Hook school shooting. The case involves Connecticut’s “anti-SLAPP” statute, General Statutes § 52-196a, which provides defendants the right to seek an expedited “special motion to dismiss” in a lawsuit that is based on the exercise of the right to free speech. At issue is whether the trial court abused its discretion by precluding the defendants from pursuing their special motion to dismiss as a sanction for various discovery abuses and statements by Jones on his radio show allegedly threatening the plaintiffs’ attorney. The defendants claim that the sanction was improper because they were not afforded adequate notice and an opportunity to be heard, and because Jones’s statements on his radio show constituted constitutionally protected speech.

The Connecticut Supreme Court’s 2018-2019 year begins this week. The First Term runs from September 16 through September 26, and the Court will hear argument in fourteen cases. Here’s a look at this week’s cases:

Monday, September 16, 2019

The first term begins with argument in two cases. In Graham v. Friedlander, S.C. 20243, the Court will decide whether the trial court properly dismissed the plaintiffs’ claims against the Norwalk Board of Education and its employees for failure to exhaust administrative remedies under the Individuals with Disabilities Act (“IDEA”), 20 U.S.C. §1400 et seq. The issue is whether, under Fry v. Napoleon Community Schools, 137 S. Ct. 743 (2017), the IDEA exhaustion requirement does not apply to the plaintiffs’ claims that the defendants negligently hired an unqualified person to provide services to autistic children, where the plaintiffs alleged that the harm they suffered could not be remedied through IDEA administrative procedures.

The second case, Gilchrist v. Commissioner of Correction, S.C. 20141, asks whether a habeas corpus case may be dismissed sua sponte for lack of jurisdiction under Practice Book § 23-39 without notice or an opportunity to be heard and without acting on the petitioner’s request for appointment of counsel.

Tuesday, September 17, 2019

The Court will hear argument in companion appeals in Schwerin v. Schwerin, S.C. 20208 & 20209, which involve the interpretation of two family trusts. The Court will decide at which generational level the trust principal should be divided where the trusts require the principal to be distributed upon expiration to the “grantor’s issue then living, per stirpes.”

Wednesday, September 18, 2019

In In re Tresin J., S.C. 20267, the Court will decide whether the trial court improperly terminated the parental rights of the incarcerated respondent on the basis that the respondent had no ongoing relationship with the child. At issue is whether, pursuant to the “infancy exception” recognized in In re Carla C., 167 Conn. App. 248 (2016), the trial court was required to consider the respondent’s  positive feelings toward the child before terminating the respondent’s parental rights for lack of an ongoing parent-child relationship.

Thursday, September 19, 2019

The first week of the term concludes with argument in two criminal cases. In State v. Lamont Edwards, S.C. 19899, the Court will decide whether Section 8-5(2) of the Connecticut Code of Evidence, which provides that the hearsay rule does not preclude an out-of-court identification if the declarant is available and the defendant has the opportunity for cross-examination, applies where the declarant does not also make an in-court identification. The Court will also decide whether the defendant’s right to confront the witnesses against him was violated where the state introduced hearsay evidence of an out-of-court identification during redirect after the defendant elicited testimony that other witnesses failed to identify him.

The week concludes with State v. Angel M., S.C. 20106, in which the Court will consider whether to overrule State v. Huey, 199 Conn. 121 (1986), which held that a trial court may consider a defendant’s refusal to admit guilt as a factor in sentencing.

The Connecticut Supreme Court ‘s October term begins tomorrow. From October 10th through October 20th, the Court will hear appeals in fourteen cases. Here’s a look at the first week:

Tuesday, October 10th

The Court hears argument in Angersola v. Radiologic Associates, SC 29619, where the issue is whether the time limitations set forth in the wrongful death statute, General Statutes § 52-555, are jurisdictional and whether they can be tolled by the continuing course of conduct doctrine. The second case, State v. Parnoff, SC 19588, asks whether the First Amendment protects a defendant from being convicted of disorderly conduct for his speech in telling two water company employees to get off his property or he would shoot them.

Wednesday, October 11th

The Court hears one case, Doe v. Town of West Harford, SC 19828, where it will decide whether the Appellate Court properly reversed a trial court’s entry of summary judgment in favor of the Town where a lawsuit brought by an attorney who was involuntarily committed to the Institute of Living alleging police misconduct was served on the defendants one day after the expiration of the three year statute of limitations. The question is whether the lawsuit could be saved under the savings statute, General Statutes § 52-593a, which extends the limitations period if the marshal timely receives the complaint, in the absence of clear evidence of when the marshal, in fact, received  the complaint.

Thursday, October 12th

The Court hears one case, Ridgaway v. Mount Vernon Fire Insurance Company, SC 19728, where it will determine whether a trial judge abused his discretion by entering a judgment of nonsuit as a disciplinary sanction against plaintiff’s counsel for a discovery violation.

Friday, October 13th

The week concludes with a family case and a habeas case. In Nuzzi v. Nuzzi, SC 19771, the Court will hear a dispute over an unallocated alimony award and determine whether the expiration of the support order during the pendency of the appeal rendered moot the appeal from the denial of the motion to modify. The second case, Juste v. Commissioner of Correction, SC 19460, raises the question of whether an appeal by a habeas petitioner who has been deported is rendered moot without a showing by the petitioner that a reversal of his criminal conviction would affect his ability to reenter the country.

We are into the second week of the Connecticut Supreme Court’s 2017-2018 year. Here’s a look at this week’s cases:

Monday, September 18th

The first case is Francini v. Goodspeed Airport, LLC, SC 19705, where the Supreme Court will consider whether the Appellate Court properly held that an easement by necessity for a landlocked parcel is not limited only to ingress and egress. The trial court had rejected the plaintiff’s claim that his property’s easement by necessity to access a public highway also included a right of way to access commercial utilities and the Appellate Court reversed.

The second case is State v. Urbanowki, SC 19678, where the Court will consider whether evidence that the defendant in a strangulation prosecution had previously attempted to choke another woman was harmless error.

Tuesday, September 19th

As part of its public education goals, each year the Connecticut Supreme Court holds an “On Circuit” program where it hears oral arguments at an area law school, college, or high school. This year, the venue for the “On Circuit” program will be the University of New Haven and two cases will be argued.

The first case is Brooks v. Powers, SC 19727, which addresses governmental immunity. The plaintiff is the estate of a woman whose body washed up on the shore. A report had been made to the local police department that she was near the ocean during a severe storm and in need of medical attention, but no one responded. The issue is whether the imminent harm, identifiable victim exception to discretionary act immunity applies. The trial court had concluded that it does, granting summary judgment. A divided panel of the Appellate Court reversed.

The second case, State v. Panek, 19772, is about the meaning of the “not in plain view” element of the video voyeurism statute and, specifically, whether it must be evaluated from the perspective of the defendant or the public at-large. The trial court concluded that the former was the correct test, and granted the defendant’s motion to dismiss because the alleged victims were in his immediate physical presence. The State appealed and the Appellate Court affirmed, agreeing with the trial court.

Continue Reading Week Two at the Connecticut Supreme Court

The Connecticut Supreme Court ‘s 2017-2018 sitting kicks off on Monday. From September 11th through September 28th, the Court will hear oral arguments in nineteen cases. Here’s a look at first week:

Monday, September 11th

The new year starts with a divorce case and a zoning case. In Reinke v. Sing, SC 19687, the Supreme Court will consider whether a family court, without a finding of fraud, has jurisdiction to open a dissolution judgment several years after it was entered based on a party’s failure to disclose certain assets at the time of the divorce. The case has garnered interest from the Connecticut Bar Association and the American Academy of Matrimonial Lawyers, which both urge for a reversal of the Appellate Court’s decision which had determined that, absent a finding of fraud, the trial court was without jurisdiction to open the dissolution judgment.

The second case is Piece of Paradise, LLC v. Borough of Fenwick Zoning of Appeals, SC 19890, a zoning a dispute over property related to actress Katherine Hepburn’s former Fenwick Estate “Paradise” set on Long Island Sound and built in 1939. At issue is whether the zoning board’s denial of a variance from a 2011 amendment to the zoning regulations, which imposed new setback requirements that effectively barred the property owner from building a single-family home on a parcel that was formerly part of a larger parcel containing the Hepburn home, constitutes a regulatory taking of property.

Continue Reading Week One at the Connecticut Supreme Court

In Munn v. The Hotchkiss School, the Second Circuit certified two questions to the Connecticut Supreme Court to help it decide an appeal from a $41.5 million jury verdict awarded to a student who contracted a serious tick-borne disease while on a month-long study abroad program in China:  (1) does Connecticut public policy support imposing a duty on a school to warn or protect against the risk of serious insect-borne disease when it organizes a trip abroad; and (2) if so, does an award of approximately $41.5 million in favor of the plaintiff, $31.5 million of which are  noneconomic damages, warrant remittitur?  For our prior coverage of the arguments, click here.

On August 11, 2017, the Connecticut Supreme Court issued its decision, concluding that Connecticut public policy supports a school’s duty to warn and protect students from serious tick-borne disease on a school-sponsored trip abroad. The Court reiterated the well-established duty of Connecticut schools with custody of minor children to use reasonable care to protect those children from foreseeable harms during school sponsored activities.  The Court found no compelling reason to create an exception to this rule for “foreseeable insect-borne diseases.”

In deciding whether to create such an exception, the Court evaluated four public policy factors: (1) the normal expectations of the participants; (2) balancing the public policy of encouraging participation in the activity against the safety of the participants; (3) avoidance of increased litigation; and (4) decisions in other jurisdictions.

Continue Reading Connecticut Supreme Court Upholds Duty of Schools to Warn or Protect Against Insect-borne Diseases in Travel Abroad Programs

Argument Recap:  Munn v. The Hotchkiss School, SC 19525

The Connecticut Supreme Court heard oral argument this term in Munn v. The Hotchkiss School to decide whether Connecticut public policy supports imposing a duty on a school to warn about or protect against a serious insect-borne disease when it organizes a trip abroad.

The case arises from a month-long trip to China organized by Hotchkiss, a private secondary boarding school. Eighteen students went on the trip, including 15 year-old Cara Munn.  While in China, Munn contracted a serious tick-borne disease that left her with catastrophic physical and mental disabilities, including the inability to speak. According to the CDC, Munn was the first reported case of tick-borne encephalitis (TBE) in a U.S. traveler to China.

Munn sued Hotchkiss in federal court for negligence. She claimed that Hotchkiss failed to warn her of the risks of tick-borne diseases and failed to require her to wear protective clothing or apply insect repellent.  The jury awarded the plaintiff $41.5 million in damages for her injuries.

Hotchkiss appealed to the Second Circuit on various grounds, including the foreseeability of the harm to Munn and the scope of Hotchkiss’ duty to warn and to protect students in these circumstances. The Second Circuit determined that the harm here was foreseeable.  Foreseeability is not enough to impose a legal duty, however.  Public policy must also support the imposition of a legal duty. Because this question of state law was unresolved in Connecticut, the Second Circuit certified two questions to the Connecticut Supreme Court: (1) Does Connecticut public policy support imposing a duty on a school to warn about or protect against the risk of a serious insect-borne disease when it organizes a trip abroad?  (2) If so, does an award of approximately $41.5 million in favor of the plaintiffs, $31.5 million of which are non-economic damages, warrant remittitur?

In evaluating whether public policy supports the imposition of a duty, the Connecticut Supreme Court considers four factors: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions.

Munn argues that these public policy factors require the Court to recognize that schools, as custodians of children, have a broad duty to warn and protect the students in their care. In the context of school trips, this duty extends to risks identified in governmental advisories, no matter how remote.

Hotchkiss acknowledges that schools have a general duty to protect their students, but argues that the duty does not extend to harm that is “undeniably remote.” Foreign travel involves countless risks, many of which are foreseeable but extremely remote.  In its brief, Hotchkiss gives many examples of such risks, including an earthquake in the Himalayas, a tsunami in Japan, a hotel fire in a country with lower safety standards, or a nuclear power plant disaster.  Requiring schools to identify, warn about, and protect against such “undeniably remote” risks would be extremely burdensome and would entail an unacceptable amount of risk.  As a result, schools would provide far fewer educational travel opportunities for their students, to the detriment of the students.

At oral argument, the justices seemed to be most interested in the “remoteness” issue, with both parties receiving questions about the remoteness of the risk at issue in this case, and the burden on the school to warn about and protect against that risk.

The Connecticut Supreme Court also heard argument on the second question certified to it: whether the jury’s award of $41.5 million, including $31.5 million of non-economic damages, warrants a remittitur. The basic test in Connecticut  for reviewing the amount of a jury verdict is “whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, prejudice, mistake or corruption . . .” However, the Connecticut Supreme Court has not set specific criteria for evaluating whether a jury award is excessive.

At oral argument, the Court inquired whether it would be appropriate for it to order a remittitur where it was “three steps removed” from that decision, since a jury had already awarded damages and the trial judge had already upheld the damages award. The Court also asked questions to better understand not only how the verdict shocks the conscience, but how it compels the conclusion that the jury was influenced by improper factors.

This case will be closely watched by the over 450 private schools in Connecticut, as well as the many colleges and universities, camps, and other organizations that provide educational and recreational opportunities for children and teenagers on trips and in nature. The Court’s decision will have far-reaching effects on the availability of such trips and programs, and the ability of Connecticut’s youth to participate in such trips and programs to learn important practical and life skills, develop independence, and develop a sense of responsibility.

We will continue to monitor and provide updates on this important case.

Here’s a look at the second week of the Supreme Court’s 7th Term:

Tuesday, April 4, 2017

The Court hears three cases today. The first is State v. Schovanec, SC 19851, which is an appeal by a defendant who was convicted of stealing a credit card and using it at a gas station. The defendant claims that the double jeopardy clause prohibits his conviction for larceny where he was also convicted for identity theft and illegal use of a credit card. The second case is Lucenti v. Laviero, SC 19723, where the Court will consider the standard to be applied when a plaintiff invokes the exception to the Workers Compensation Act’s exclusivity provision for circumstances where an employer has created a dangerous condition for which injuries are “substantially certain” to occur. Finally, in State v. Lee, SC 19688, the Court will hear another double jeopardy case and decide whether a violation of double jeopardy requires  that the second conviction be vacated or just that the second sentence be vacated.

Wednesday, April 5, 2017

The Court will hear a crime victim’s writ of error in State v. Skipwith, SC 19608, challenging a defendant’s plea agreement and sentence which was made without notice being given to the victim as required by the Victim’s Rights Amendment to the Connecticut Constitution.  The second case of the day is Bagley v. Adel Wiggins Group, SC 19835, which will evaluate the standard of proof necessary to make an asbestos exposure claim under the Connecticut Product Liability Act.

Thursday, April 6, 2107

The Court closes its seventh term with two habeas cases. In both Perez v. Commissioner of Correction, SC 19855, and James E. v. Commissioner of Correction, SC 19854, the Court will decide whether a 2013 statutory amendment that requires serving 85 percent of a sentence before becoming eligible for parole violates the constitutional prohibition against ex post facto laws when applied to defendants who were sentenced prior to the 2013 amendment.

Ruling Recap: Gold v. Rowland, SC 19585

Last October, we reported on the issues at stake in Gold v. Rowland, the class action that claims that Connecticut state employees were members entitled to shares of stock when their insurer, Anthem, demutualized in 2001.  The employees had asked the Supreme Court to reverse the trial court’s ruling that (1) Anthem’s Articles of Incorporation should be considered together with other documents in the Anthem-Blue Cross merger, (2) those documents were ambiguous on the issue of whether the employees were members, and (3) extrinsic evidence showed that the parties intended for only the state, as the policyholder, to be a member.  Alternatively, the employees had argued that even if the documents were ambiguous, the trial court should not have considered extrinsic evidence and instead should have directly applied the rule of contra proferentem to interpret the documents against the drafter, Anthem, and in favor of the employees.  In a decision with an official release date of April 11, 2017, the Supreme Court rejected the employees’ arguments and affirmed the trial court.

Continue Reading The $100 Million Question is Answered With Extrinsic Evidence, Not Contra Proferentem