Ecker v. Town of West Hartford, 12971

CourtSupreme Court of Connecticut
Writing for the CourtBefore PETERS; CALLAHAN
Citation530 A.2d 1056,205 Conn. 219
PartiesPatricia O. ECKER, Administratrix (ESTATE of Robert W. Ecker) v. TOWN OF WEST HARTFORD, et al.
Docket NumberNo. 12971,12971
Decision Date08 September 1987

Allan B. Taylor, Hartford, with whom were Frederick W. Danforth, Jr., and, on the brief, Marjorie Wilder, corporation counsel, for appellants (named defendant et al.).

Theodore I. Koskoff, with whom were Bernard Pitterman, Danbury, and, on the brief, Carey B. Reilly and Joan C. Harrington, Bridgeport, for appellee (plaintiff).


CALLAHAN, Justice.

The plaintiff Patricia O. Ecker, as administratrix of the estate of her husband Robert W. Ecker, brought this wrongful death action pursuant to General Statutes § 52-555 for injuries her deceased husband received when he was struck by a wooden canopy which fell from a Caldor building. 1 The defendants include: (1) Henry Porter, doing business as Henry Porter Associates, the owner and lessor of the land and building; (2) Consolidated Engineers and Contractors, Inc., the contractors who designed, constructed and installed the canopy; (3) Charles McCarthy, individually and as the building inspector of the town of West Hartford, who issued the certificate of occupancy for the Caldor building; and (4) the town of West Hartford, which employed Charles McCarthy. Caldor, Inc., filed an intervening complaint against the plaintiff and the defendants for monies it had paid in accordance with the provisions of the Connecticut Workers' Compensation Act.

After a jury verdict which was rendered in favor of the plaintiff in the amount of $1,156,000 against McCarthy as building inspector and the town of West Hartford (hereinafter the defendants), the trial court rendered a final judgment thereon. 2 The defendants took a timely appeal to the Appellate Court, and the appeal was transferred to this court pursuant to Practice Book § 4023. 3 On appeal, the defendants claim the trial court erred: (1) in refusing to dismiss this case for lack of subject matter jurisdiction; (2) in submitting the issue of pain and suffering to the jury; (3) in its charge to the jury regarding the duties of a building inspector and the application of governmental immunity; and (4) in allowing Caldor, Inc., the intervening plaintiff, four peremptory challenges. We find error as to the defendants' first claim and need not address the other claims raised.

The jury could reasonably have found the following facts. On February 11, 1981, the plaintiff's decedent, while working as a shipping clerk for Caldor, Inc., in its department store located at 983 New Britain Avenue, West Hartford, was injured when a wooden canopy pulled away from the store wall in the area of the loading dock and fell on him. 4 He subsequently was taken to Hartford Hospital while in a coma, where he died the next day.

In the summer of 1973, renovations had been made to the Caldor building under a building permit issued by McCarthy, the chief building inspector for the town of West Hartford, to Henry Porter, doing business as Henry Porter Associates, the owner and lessor of the building at 983 New Britain Avenue. The permit had been signed by Edward Dombrowski, also a town building inspector, after the plans for the renovations had been reviewed and revised by Joseph Callahan, another town building inspector. Consolidated Engineers and Constructors, Inc. (Consolidated), was the general contractor in charge of the renovations.

During the course of the renovations, the West Hartford building department had made both general and specific inspections of the construction site on at least thirty-five recorded occasions, as required by the Connecticut State Building Code §§ 111.1 and 111.11. 5 The inspections were conducted by Joseph Callahan, Thomas Kelley, Donald Soccoli, and Thomas Bascetta. In addition, McCarthy did a general walk-through inspection on October 9, 1973, to check for any "obvious glaring faults."

On October 30 and 31, 1973, further inspections of the building were conducted by Callahan and Soccoli for the purpose of determining whether a certificate of occupancy should be issued. Both inspectors had noted a number of items that had to be remedied, but both gave their approval to McCarthy to issue a temporary certificate of occupancy on October 31, 1973. McCarthy had also conducted a general inspection of the premises from his car by driving around the perimeter of the building, "primarily looking for a finished grade." Upon completion of this inspection and having conferred with the other inspectors, McCarthy issued the temporary certificate of occupancy on the same day and the store opened to the public on November 1, 1973. The only other inspections of the building were done in late November of 1973 by Callahan, Kelley and Soccoli merely to check if the unfinished items listed on the temporary certificate of occupancy had been completed. 6 Thereafter, McCarthy issued the permanent certificate of occupancy on November 30, 1973. From November 30, 1973, until February 11, 1981, when the plaintiff's decedent was injured, the building department had not received complaints about the Caldor facility and had not conducted a general inspection of it.

The wooden canopy was unquestionably in violation of §§ 315.1 7 and 315.3 8 of the Connecticut State Building Code in that no permit had been issued, it had been constructed of wood, not metal, and it had no vertical supports or braces. Despite the fact that neither the initial nor the final and revised plans for the renovations showed the canopy, it was erected over the loading dock some time prior to the opening of the store on November 1, 1973. 9

This action was filed by the plaintiff on February 17, 1982. An amended complaint was filed on July 27, 1983, which the municipal defendants answered on October 17, 1983, alleging only the special defense of governmental immunity for McCarthy. On February 13, 1986, the first day of trial, the defendants filed a request to amend their answer to raise by way of special defense, for the first time, the three year time limitation contained within General Statutes § 52-555. The trial court denied the request on the grounds that it was untimely and substantially prejudicial to the plaintiff. On February 19, 1986, the defendants filed a motion to reconsider the denial of the request to amend their answer which was also denied by the trial court on February 20, 1986. Thereafter, on March 7, 1986, the defendants moved for a directed verdict, pursuant to Practice Book § 321, 10 on the ground that, inter alia, the action was time barred under § 52-555. The trial court denied this motion. On March 26, 1986, two days after the jury rendered a verdict in favor of the plaintiff, the defendants renewed this claim by way of a motion to dismiss, a motion to set aside the verdict and a motion for judgment notwithstanding the verdict. On the same day, the trial court denied the motions and rendered judgment upon the jury verdict.

The principal issue in this appeal is whether a trial court has jurisdiction over a wrongful death action brought more than "three years from the date of the act or omission complained of" as required by § 52-555. The defendants claim that § 52-555 created a new statutory cause of action that did not exist at common law in Connecticut, and thus, must be strictly construed and cannot be extended or enlarged by judicial construction. The defendants further argue that because the statute creates the right of action, the time limitation contained therein is a limitation upon the right itself, and as such, is jurisdictional in nature and cannot be waived. Accordingly, the defendants claim the court lacked jurisdiction over this action which was not brought within the three year period of limitation set forth in the statute. We agree with this contention.


Recently in the case of Ladd v. Douglas Trucking Co., 203 Conn. 187, 191-92, 523 A.2d 1301 (1987), this court reiterated the one hundred and thirty-one year adherence by the courts of this state to the almost unanimously held principle of law, as first proclaimed by Lord Ellenborough in the case of Baker v. Bolton, 1 Camp. 493, 170 Eng.Rep. 1033 (K.B.1808), that there is no civil right of action at common law for damages resulting from the death of a human being. See Grody v. Tulin, 170 Conn. 443, 448, 365 A.2d 1076 (1976); Foran v. Carangelo, 153 Conn. 356, 359, 216 A.2d 638 (1966); Floyd v. Fruit Industries, Inc., 144 Conn. 659, 668-69, 136 A.2d 918 (1957); Baker v. Baningoso, 134 Conn. 382, 385, 58 A.2d 5 (1948); Lucier v. Hittleman, 125 Conn. 635, 636, 7 A.2d 647 (1939); Willoughby v. New Haven, 123 Conn. 446, 454, 197 A. 85 (1937); Flynn v. New York, N.H. & H.R. Co., 111 Conn. 196, 200, 149 A. 682 (1930), aff'd, 283 U.S. 53, 51 S.Ct. 357, 75 L.Ed. 837 (1931); Korb v. Bridgeport Gas Light Co., 91 Conn. 395, 397, 99 A. 1048 (1917); DeMartino v. Siemon, 90 Conn. 527, 528, 97 A. 765 (1916); Kling v. Torello, 87 Conn. 301, 306, 87 A. 987 (1913); Radezky v. Sargent & Co., 77 Conn. 110, 112, 58 A. 709 (1904); Broughel v. Southern New England Telephone Co., 72 Conn. 617, 620, 45 A. 435 (1900); Goodsell v. Hartford & New Haven R.R. Co., 33 Conn. 51, 55 (1865); Murphy v. New York & New Haven R.R. Co., 30 Conn. 184, 188 (1861); Connecticut Mutual Life Ins. Co. v. New York. & New Haven R.R. Co., 25 Conn. 265, 273 (1856); Isaac v. Mount Sinai Hospital, 3 Conn.App. 598, 601-602, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 904 (1985); Shattuck v. Gulliver, 40 Conn.Sup. 95, 97, 481 A.2d 1110 (1984); Leland v. Chawla, 39 Conn. Sup. 8, 10, 467 A.2d 439 (1983); Cofrancesco v. Smith, 29 Conn.Sup. 139, 141-42, 275 A.2d 608 (1971); Gorke v. Le Clerc, 23 Conn.Sup. 256, 257-58, 181 A.2d 448 (1962); Perlstein v. Westport Sanitarium Co., 11 Conn.Sup. 117, 119 (1942); see also D. Wright & J....

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