Cackowski v. Jack A. Halprin Inc.

• Decision Date: 17 May 1945
• Citation: Cackowski v. Jack A. Halprin Inc., 132 Conn. 67, 42 A.2d 838 (Conn. 1945)
• Court: Connecticut Supreme Court
• Parties: CACKOWSKI v. JACK A. HALPRIN, Inc.

132 Conn. 67

42 A.2d 838

CACKOWSKI

v.JACK A. HALPRIN, Inc.

Supreme Court of Errors of Connecticut.

May 17, 1945.

Appeal from Superior Court, Hartford County; McLaughlin, Judge.

Action by Sophie Cackowski against Jack A. Halprin, Inc., to recover damages for personal injuries, alleged to have been caused by negligence of defendant, tried to the court.Verdict and judgment for the plaintiff, and defendant appeals.

Error and new trial ordered.

James W. Carpenter, of Hartford, for appellant(defendant).

Morton E. Cole and with whom were Louis W. Webber, both of Hartford (Cyril Cole, of Hartford, on the brief), for appellee(plaintiff).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

JENNINGS, Judge.

The plaintiff was injured when a portion of the ceiling of the tenement occupied by her and her husband fell on her head.She sued the defendant, a contractor who was doing work there, and had a verdict.The defendant appealed, assigning error in the denial of its motion to set aside the verdict and errors in the charge and finding.

The plaintiff offered evidence to prove and claimed to have proved the following facts: She and her husband, who was the tenant, occupied a six-room apartment on the top floor of a building at the corner of Main and Wells Street in Hartford.In was necessary to pass through the living room to reach the toilet.For four or five weeks before the injury, the defendant, as an independent contractor, had been engaged in removing and replacing the old cornice at the top of the building.A scaffolding was built resting on horizontal wooden supports which extended outward through the windows of the top-floor tenements.The top of the horizontal planks was about five or six feet below the ceiling.The inner ends of the supports in the plaintiff's living room were nailed to the door jamb within the room, were mounted on a cantilever and were also nailed to the window casings.There was a crack in the plaster when the work was commenced and four new cracks developed soon afterwards.During its prgress pieces of cement and particles of plaster kept coming down on the plaintiff's furniture.The defendant inspected the walls, ceilings and window sills in the plaintiff's living room before the work started and its representative came into the room frequently during the course of the work and knew or should have known of the conditions described.At about 7 a.m. on August 16, 1914, the plaintiff was passing through the living room.A piece of plaster about four by five feet fell from the ceiling and injured her.The only testimony bearing on liability produced by the plaintiff was that of herself and her husband.

The claims of proof of the defendant did not materially differ from those of the plaintiff except a claim that the ceiling had no apparent cracks.It also offered testimony describing the work in detail and expert testimony to the effect that the method followed and the tools used in performing its work conformed to standard practice and were not such as to cause the ceiling to fall.

The complaint was based on negligence.After defining that term and proximate cause, the charge continued as follows: ‘There appears to be no dispute but that the defendant in doing the repair work on the roof, used the living room of the apartment in which the plaintiff lived and placed timbers therein to support a scaffolding.It was the defendant's duty to use reasonable care in carrying on its repair work, and under such circumstances negligence is not limited to acts of trespass-and I may say no trespass is alleged in this case by the plaintiff-but negligence must be shown by a failure to use reasonable care to find out in advance [or] as the work progresses whether it was likely to cause damage to the occupants of the apartment in which the plaintiff lived, and if so, to seasonably notify the occupants in order that they might take steps or precautions to protect themselves against damages which cannot wholly be averted even by the exercise of reasonable care in the performance of the work.’

The last part of the quoted excerpt from the charge would have been appropriate to a cause of action based on injuries resulting from the performance of work so inherently dangerous that it might cause damage even if done with due care.To put it another way, it made possible a finding of liability even in the absence of negligence.As stated above, the complaint was based on negligence and contained no allegation that the work was inherently dangerous.It follows that the charge submitted a possible basis of liability outside of the issues and must be held erroneous.It was taken in substance from Canfield Rubber Co. v. Leary & Co., 99 Conn. 40, 50, 121 A. 283, and, for the reasons there stated, was appropriate to that case but was inapplicable here.In the Canfield casethe defendant was not doing the work on the plaintiff's property.

The parties are in dispute as to the status of the defendant on the premises: the plaintiff claims that the defendant had control of the...