EDITORIAL

EDITORIAL

IS THE CONNECTICUT SUPREME COURT

MIRED IN THE JURISPRUDENCE OF THE 19^TH CENTURY"?

by William F. Gallagher

In Lodge v. Arett Sales Corp., 246 Conn. 563, 593-594 (1998), Justice Berdon stated in dissenting:

The fundamental policy of the law that guides this court today, however, as reflected in Mendillo, Zamstein and Fraser, unfortunately, is not cast in standards of the twenty-first century, but, rather, is mired in the jurisprudence that was prevalent in the nineteenth century.

Justice Berdon was dissenting in a Supreme Court opinion that seems extremely restrictive in its assessment of proximate causation. A false alarm had negligently been set off during maintenance. A fire engine en route was in a terrible accident due to defective brakes on the fire engine. The court held that there was no duty on these facts, but there might be one for an accident that was not caused by defective brakes on the fire truck.

Mendillo v. Board of Education, 246 Conn. 546 (1998) failed to find a duty so that a child could be compensated from the tortfeasor for parental loss of consortium; Zamstein v. Marvasti, 240 Conn. 549 (1997) refused to impose a duty so that a patient may be compensated from a psychiatrist who negligently accuses the plaintiff of sexually abusing his child; and Fraser v. United States, 236 Conn. 625 (1996) refused to impose a duty on the part of a psychotherapist who negligently fails to warn a third party that the patient intends to harm her. It may well be that on these focused issues the court is being extremely conservative and Justice Berdon may be correct that the analysis was "mired in the jurisprudence that was prevalent in the nineteenth century."

But we are not so sure. The court does not as a matter of practice exalt form over substance. In many of its decisions the court has adopted a forward and enlightened view of the issues that confront our society approaching the 21^st century. These include decisions on product liability law reflected in Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199 (1997); and the adoption of the Daubert rule governing admissibility of scientific evidence in Connecticut, State v. Porter, 241 Conn. 57 (1997). There are a host of other examples.

We think the problem is lack of consistency. It is the erratic decision-making of the Supreme Court, and its result-oriented pragmatism that causes so much consternation among the bar and Superior and Appellate Court judges.

Consider the Supreme Court decision in Bhinder v. Sun Company, Inc., 246 Conn. 223 (1998). The decision fundamentally altered tort law and policy in Connecticut and effectively eliminated an entire field of tort liability. Out of understandable solicitude for negligent tortfeasors who must bear the responsibility under the common law for damages arising from intentional acts of a third party, the court formulated a rule that would have the effect of shifting most of the losses to the innocent plaintiff. It permitted apportioning damages to the intentional tortfeasor, who is universally uninsured and typically judgment-proof. Those losses, had Bhinder remained the law, would have been largely borne by the innocent victim, rather than the negligent tortfeasor who could have prevented the loss but for his or her negligence.

Each of the three central purposes of tort law were frustrated by the Bhinder decision. Compensating victims, spreading losses through market and insurance mechanisms, and deterrence of tortious conduct were all undermined by the decision.

Consider Beverly Hills Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48 (1998). In a case of clear malpractice, the majority of the Supreme Court held that no matter how egregious and protracted the professional misconduct, it was more appropriate for the Supreme Court to take a very rigorous view of proof of damages, than to provide relief for the plaintiff, a client whom the defendant attorneys put out of business.

Justice Peters, in her dissenting opinion, stated (247 Conn. at 80):

I disagree with so constricted a view of professional and fiduciary responsibility. Clients aggrieved by the misconduct of their attorneys are entitled to rely on courts to recognize that such misconduct may impair not only the clients’ business but also the clients’ ability to prove, with complete precision, the extent to which their business has been impaired. Having substantially created the problem, the defendants now should not be allowed to walk away from all responsibility for its solution.

Moreover, Justice Peters took the majority to task for departing from established appellate practice precedent. She stated (247 Conn. at 80-81):

[T]he majority opinion departs from the deference ordinarily accorded to a trial court’s discretionary role as the finder of facts.

Justice Peters also noted in her dissent that by "discrediting the damages expert whom the trial court found credible, the majority opinion denigrates the fact-finding function of the trial court.

She stated in conclusion (247 Conn. at 95):

[T]he majority opinion, in my view, reaches out to reverse a trial court judgment on grounds that are far from compelling. We condone professional misconduct if we discharge these defendants of all liability to a plaintiff that has tried, as best it could, to quantify the loss that the defendants’ misconduct has caused it to suffer. Such a result, it seems to me, turns the law of professional responsibility on its head. Those members of the legal profession who engage in egregious and protracted misconduct bear the responsibility, fiscally as well as morally, for the harm that they have caused. It is our responsibility to search for ways to reinforce that professional commitment.

On the very same day that the Supreme Court announced its decision in Beverly Hills Concepts it decided Paige v. St. Andrew’s Roman Catholic Church Corp., 249 Conn. 24 (1998). All that can be said about this decision is that one man’s inference is another’s speculation. It is impossible to reconcile the decisions in Beverly Hills Concepts and Paige. The majority was authored by Justice Berdon, with Justices Norcott and Palmer concurring. Chief Justice Callahan dissented, with Justice McDonald joining. Beverly Hills Concepts was decided by a court consisting of Justices Katz (the author of the decision), and Norcott, Palmer and Judge O’Connell, Chief Judge of the Appellate Court. Justice Peters dissented.

The bar and the trial court look to the Supreme Court for guidance. They get erratic decisions that appear to be arising from a result oriented pragmatism, depending on the makeup of the panel of the court that decides the case.

It may be time for the court, or the legislature, to require that the court sit en banc in every case, and not utilize Appellate Court or Superior Court judges when there is a disqualification.