Ahern v. FUSS & O'NEILL, INC., (AC 22850).

• Decision Date: 22 July 2003
• Docket Number: (AC 22850).
• Court: Connecticut Court of Appeals
• Parties: JOHN AHERN ET AL. v. FUSS AND O'NEILL, INC., ET AL.

78 Conn. App. 202

862 A.2d 1224

JOHN AHERN ET AL. v. FUSS AND O'NEILL, INC., ET AL.

(AC 22850).

Appellate Court of Connecticut.

Argued May 8, 2003.

Officially released July 22, 2003.

Lavery, C. J., and Flynn and Peters, Js. Steven J. Errante, with whom, on the brief, was Hugh F. Keefe, for the appellant (plaintiff Somers Mill Associates, Inc.).

Deborah Monteith Neubert, with whom, on the brief, was Gretchen L. Grosick, for the appellee (named defendant).

David M. Sheridan, with whom, on the brief, were Denise Martino Phelan and Joseph M. Busher, for the appellee (defendant town of Somers).

Michael J. Byrne, for the appellee (defendant Lenard Engineering, Inc.).

Opinion

PETERS, J.

Seven years after the purchase of a building on the Scantic River, in Somers, for possible conversion into a residential development, the Federal Emergency Management Administration revised a flood insurance map so that the property became unsuitable for the proposed development. The map revision resulted from the belated discovery of a discrepancy in previously existing documents describing the flood plain. The owner sought to recoup its losses from two engineering firms that, while hired to evaluate the technical feasibility of the proposed development, did not question the reliability of the flood map that existed when they performed their services for the owner. The principal issue in this case is whether, in its pursuit of a claim of professional malpractice, the owner adequately disclosed the proposed testimony of an expert witness about the standard of care applicable to the professional services of the engineering firms. The trial court rendered judgments in favor of the engineering firms and, in part, in favor of an additional defendant, the town of Somers (town), against which the owner had brought other claims of misconduct. The owner has appealed. We affirm the judgments rendered by the trial court.

On June 11, 1996, the plaintiff Somers Mill Associates, Inc.,¹ filed a complaint against the defendants Fuss & O'Neill, Inc. (Fuss & O'Neill), and Lenard Engineering, Inc. (Lenard), for engineering malpractice.² In the same complaint it charged the town with having created a nuisance and with having violated the plaintiff's constitutional rights under 42 U.S.C. § 1983.³ Each of the defendants, after denying liability and filing special defenses, moved for summary judgment. The trial court granted each motion.

The plaintiff's appeal challenges the validity of the judgments rendered by the trial court. The appeal is governed by a well established standard of appellate review. "Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show 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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court's decision to grant the defendant's motion for summary judgment is plenary. . . . On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court." (Internal quotation marks omitted.) Tarnowsky v. Socci, 75 Conn. App. 560, 564, 816 A.2d 728, cert. granted on other grounds, 263 Conn. 921, 822 A.2d 245 (2003); see also W & D Acquisition, LLC v. First Union National Bank, 262 Conn. 704, 709, 817 A.2d 91 (2003).

I CLAIMS AGAINST THE ENGINEERING FIRMS

The plaintiff claims that Fuss & O'Neill and Lenard (the engineering defendants) each engaged in professional malpractice in their feasibility studies to determine whether the plaintiff's property, known as the Somers Mill, could be converted into a residential development. Specifically, the plaintiff alleges that each of the defendant engineering firms negligently represented that no floor of the building above the basement was within the 100 year flood plain. According to the plaintiff, these representations were negligent because they failed to disclose a possible error in the federal flood map that was then the official document describing the flood plain.

The engineering firms denied having made the representations. They also challenged the assertion that they had a duty to investigate the reliability of the flood map.

Many of the relevant facts are undisputed. In 1988, the plaintiff purchased the Somers Mill, a commercial building on Maple Street in Somers. Because the Somers Mill straddles the Scantic River, the plaintiff knew that the property was at risk of flooding.

In the spring of 1989, the plaintiff hired Fuss & O'Neill to perform engineering services to determine the feasibility of renovating the Somers Mill for residential purposes. Fuss & O'Neill performed some preliminary survey work for the plaintiff, investigated wetlands-related issues and gathered materials for later design work. Some six months later, the plaintiff terminated its relationship with Fuss & O'Neill because of dissatisfaction with the performance of Fuss & O'Neill on an unrelated project. At that time, Fuss & O'Neill had not yet completed a boundary or topographic survey, had not issued any documents to the plaintiff and had not generated any plans for the plaintiff's review. Fuss & O'Neill was never paid for the work it had done.

The plaintiff alleges, however, that, in June, 1989, one of Fuss & O'Neill's employees represented to the plaintiff that the first floor of the Somers Mill building was located at an elevation of approximately 182 feet, that the 100 year flood level at the face of Somers Mill was approximately 180 feet, and that the first floor was therefore above the 100 year flood elevation and usable for residential purposes. The plaintiff alleges that Fuss & O'Neill's representation was actionable as a negligent misrepresentation.

In early January, 1990, the plaintiff hired Lenard to prepare a complete site analysis, and to review and to do a feasibility study of the floodway to determine the 100 year flood level as it would affect the Somers Mill's floors. Lenard's analysis showed that the first floor of the Somers Mill was outside or above the 100 year flood level. In light of Lenard's positive report, the plaintiff decided to pursue residential development of the Somers Mill. The plaintiff alleges that Lenard's analysis was also actionable as a negligent misrepresentation.

The plaintiff then hired Doane Engineering (Doane),⁴ which prepared a site plan for the development of 102 residential units in the Somers Mill. On March 20, 1991, Doane submitted this site plan to the town planning commission with an application for a special use permit. As did its predecessors, Doane relied on the then existing flood map to support its representation that the Somers Mill could be used for residential purposes.

On July 11, 1991, a Doane engineer alerted the Boston office of the Federal Emergency Management Administration to a discrepancy between the base flood elevation of 180 feet shown on the flood map and the base flood elevation of 188.7 feet shown on a flood insurance study. Doane did not, however, alter its application for a special use permit.

On October 7, 1991, the planning commission denied the plaintiff's application for a special use permit on grounds unrelated to the flood plain problem. After lengthy unsuccessful settlement efforts, the plaintiff's appeal from the commission's denial resulted, on March 23, 1995, in a remand of the application to the town for reconsideration.

On June 16, 1995, the Federal Emergency Management Administration issued a formal "Letter of Map Revision" for the area that includes the Somers Mill. The revision raised the original 100 year flood elevation from 180 feet to 189 feet. The Letter of Map Revision acknowledged that the revision was issued to correct the Administration's mistake in transferring data from its flood study to its flood map. Under the revised flood map, the first floor of the Somers Mill was below the base flood elevation.

Although the planning commission nevertheless approved the plaintiff's conversion plan on October 2, 1995, the approval was contingent on a revision of the site plan so that no residential floor of the building would be below the 100 year flood elevation. The plaintiff decided that the required revision made it unfeasible to pursue residential development of the Somers Mill. It then brought the present action seeking recovery of its losses, which allegedly were caused by the negligent misrepresentations of the defendant engineering firms.

The plaintiff recognized that its claims against these defendants involved issues of professional malpractice on which it could not prevail without presenting expert evidence. "The requirement of expert testimony . . . 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." Davis v. Margolis, 215 Conn. 408, 416, 576 A.2d 489 (1990). Expert testimony is required "when the question involved goes beyond the field of the ordinary knowledge and experience of judges or jurors." Bader v. United Orthodox Synagogue, 148 Conn. 449, 454, 172 A.2d 192 (1961); accord Santopietro v. New Haven, 239 Conn. 207, 226-27, 682 A.2d 106 (1996); Matyas v. Minck, 37 Conn. App. 321, 326-27, 655 A.2d 1155 (1995).

To satisfy this requirement, the plaintiff filed a disclosure of the expert witnesses it intended to call to testify at trial. See Practice Book § 13-4 (4). The only expert whom the...