Coburn v. Lenox Homes, Inc.

• Decision Date: 02 March 1982
• Court: Connecticut Supreme Court
• Parties: Anthony B. COBURN et al. v. LENOX HOMES, INC.

Page 620

441 A.2d 620

186 Conn. 370

Anthony B. COBURN et al. v. LENOX HOMES, INC.

Supreme Court of Connecticut.

Argued Dec. 4, 1981.

Decided March 2, 1982.

Warren P. Joblin, Westport, for appellant (defendant).

Peter J. Strassberger, Norwalk, with whom, on brief, was Alan R. Spirer, Westport, for appellees (plaintiffs).

Before HEALEY, PARSKEY, ARMENTANO, SHEA and WRIGHT, JJ.

ARMENTANO, Associate Justice.

The plaintiffs are the remote purchasers of residential property located at fifty-seven Pheasant Run Road, Wilton, developed and sold by the defendant. The subsurface sewage disposal system ¹ (hereinafter septic system) which was intended to service the five-bedroom house located on the property, was allegedly constructed by the defendant in 1972. It failed two and one-half years after its installation and three months after the plaintiffs took possession of the property which they purchased from the original buyers in 1974. The failure of the septic system to accommodate the sewage flowing into it resulted in effluent surfacing in the plaintiffs' back yard. ² In Coburn v. Lenox Homes, Inc., 173 Conn. 567, 378 A.2d 599 (1977), this court affirmed the dismissal of the plaintiffs' action against the defendant grounded on implied warranty, contract and express warranty because the plaintiffs lacked contractual privity with the defendant. Id., 570-73, 378 A.2d 599. We did not, however, view the lack of privity to be fatal to the plaintiffs' tort action. Id., 573-74, 378 A.2d 599; see Morris v. Holt, 380 Mass. 133, 401 N.E.2d 851, 853 (1980). Accordingly, we remanded the case for a trial on the merits of the negligence count. Coburn v. Lenox Homes, Inc., supra, 173 Conn. at 574, 378 A.2d 599.

In this appeal the defendant challenges the propriety of the award of $16,390 damages to the plaintiffs, representing the cost of designing and installing an effective replacement system, after a trial to the court during which the defendant called no witnesses. The defendant claims specifically that the court erred in (1) finding that the defendant had constructed the septic system; (2) ruling that the defendant owed the plaintiffs a duty of care; (3) admitting into evidence an uncertified copy of state regulations that provided the foundation for finding a breach of the standard of care established therein; (4) finding that the defendant breached the common-law standard of care; (5) finding that the defendant's alleged negligence was the proximate cause of the plaintiffs' harm; and (6) finding that the plaintiffs' actions were not the proximate cause of the septic system failure.

Recovery of damages in negligence requires proof by a fair preponderance of the evidence that the actor owed a duty of care to the victim, which was breached by the actor's failure to meet the standard of care arising therefrom and that the breach was the proximate cause of actual harm suffered by the victim. See, e.g., Hoelter v. Mohawk Service, Inc., 170 Conn. 495, 501-502, 365 A.2d 1064 (1976); McDonough v. Whalen, 365 Mass. 506, 514, 313 N.E.2d 435 (1974). See generally Prosser, Law of Torts (4th Ed.), pp. 143, 208; Wright & Fitzgerald, Conn. Law of Torts (2d Ed.), pp. 33-41.

Testimony at the trial established the following facts regarding the operation of a septic system: The purpose of a septic system is to convert waste material into liquid suitable for entry into ground water. Sewage is first collected in a septic tank where much of the solid waste settles. What remains after settling is liquid effluent which contains particles of solid waste. In the subject system, the effluent was collected in galleries before entry into the surrounding soil. A gallery, which is often part of a septic system, is a large trench lined with blocks or concrete and usually covered with a lid, which controls the level of effluent entering into the surrounding soil and makes way for the entry of fresh effluent into the gallery. The trench is customarily four feet wide and either two or four feet deep, depending on anticipated use. The system constructed by the defendant was two feet deep. Effluent leaches out through perforations in the sides of the gallery into surrounding soil, or leaching area, unless the soil is saturated, as was the case here.

The design of a septic system depends principally upon the type of soil into which the effluent leaches. The soil's drainage character is important because the effluent must interact with soil bacteria to accomplish the final renovation of waste material before its entry into area ground water. To provide effluent with sufficient interaction with soil in the leaching area, the septic system should not be constructed too near the ground water table or ledge rock under the leaching area. ³

I

The defendant first claims that there was no direct evidence to support the allegation that it constructed the septic system on the property or ever owned the property which the plaintiffs later purchased. In its memorandum of decision the trial court found that the defendant had installed the system. Although it is clear that an installer, a Mr. Francoletti, actually installed the system, it is also clear that the trial court used the term "installed" in a broader sense, to include the design and other aspects of septic system construction. The certified copy of a subdivision map filed July 3, 1969 in the town of Wilton, the town approval for a subsurface disposal system dated April 4, 1972, the application for permission to construct a sewage disposal system signed by the installer, and two town planning and zoning commission resolutions granting conditional approval to subdivide, all indicate that the defendant owned the subject lot. Moreover, the town planner testified that the defendant applied for permission to subdivide the property which includes the subject lot, and the town approval of the system lists the defendant as the builder of the system. The defendant offered no evidence to rebut this testimony or documentary evidence. We hold the record is sufficient to find that the defendant designed and constructed the septic system on the lot which it at one time owned. See Coburn v. Lenox Homes, Inc., supra, 173 Conn. at 569, 378 A.2d 599.

II

The defendant's second claim of error is that the plaintiffs did not prove at trial that the defendant owed them any duty of care as alleged in their complaint because they did not introduce into evidence the construction contract between the defendant and the original purchasers of the subdivision lot, James E. and Joyce D. Buenger. The defendant interprets the plaintiffs' complaint to allege a duty of care arising only from the construction contract between the Buengers and the defendant to which contract the plaintiffs are successors and assigns. We do not read the complaint so narrowly. A fair reading of the negligence count discloses that in addition to the duty which allegedly arose from the construction contract, the plaintiffs alleged that the defendant owed a duty to the plaintiffs to construct the septic system in a good, substantial, workmanlike manner. Because the plaintiffs alleged a common-law duty of care, the failure to introduce direct evidence of the existence of a contract between the defendant and the first purchasers is not fatal to the plaintiffs' recovery in negligence.

The existence of a duty of care is an essential element of negligence. E.g. Frankovitch v. Burton, --- Conn. ---, ---, 440 A.2d 254 (43 Conn.L.J., No. 3, pp. 5, 7) (1981). A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act. See Coburn v. Lenox Homes, Inc., supra, 173 Conn. at 575-76, 378 A.2d 599; Neal v. Shiels, Inc., 166 Conn. 3, 12-13, 347 A.2d 102 (1974); Connecticut Savings Bank of New Haven v. First National Bank & Trust Co. of New Haven, 138 Conn. 298, 303-304, 84 A.2d 267 (1951); Orlo v. Connecticut Co., 128 Conn. 231, 237, 21 A.2d 402 (1941). See generally Wright & Fitzgerald, supra, 33. When negligent construction is alleged the plaintiff must prove that the defendant knew or should have known of the circumstances that would foreseeably result in the harm suffered. See Johnson v. Healy, 176 Conn. 97, 103, 405 A.2d 54 (1978), aff'd on other grounds, --- Conn. ---, 440 A.2d 765 (42 Conn.L.J., No. 42, p. 33) (1981). "Where there is a duty of finding out and knowing, negligent ignorance has the same effect in law as actual knowledge." Lippitt v. Ashley, 89 Conn. 451, 464, 94 A. 995 (1915), quoting Lowndes v. City National Bank of South Norwalk, 82 Conn. 8, 16, 72 A. 150 (1909); see, e.g., Prosser, supra, 157; Wright & Fitzgerald, supra, 41.

In finding all the issues for the plaintiffs the trial court ruled that the defendant owed a duty of care to the plaintiffs. ⁴ Although the court did not express the factual basis for this ruling, the testimony and documentary evidence introduced at trial disclosed that the defendant should have known that the septic system it designed and planned to have installed was likely to fail in the manner that occurred in the present case.

For the purpose of designing an effective septic system, the type of soil in the leaching area is determined by a percolation test which ascertains the rate of water seepage into a percolation test hole and by an examination of the color and texture of the soil. The building inspector for the town of Wilton testified that, at the defendant's request, one, or possibly two percolation tests were performed on the property on April 3, 1972 by an employee of his office. Informal town records of the test do not divulge where the hole was dug. The town record indicates that a seven foot deep hole disclosed no ground water, but does not indicate the percolation rate. The building...