Gomes v. Commercial Union Ins. Co.

• Decision Date: 20 November 2001
• Docket Number: (SC 16457)
• Citation: 783 A.2d 462,258 Conn. 603
• Court: Connecticut Supreme Court
• Parties: JOSEPH GOMES ET AL. v. COMMERCIAL UNION INSURANCE COMPANY ET AL.

258 Conn. 603

783 A.2d 462

JOSEPH GOMES ET AL. v. COMMERCIAL UNION INSURANCE COMPANY ET AL.

(SC 16457)

Supreme Court of Connecticut.

Argued March 14, 2001.

Officially released November 20, 2001.

Sullivan, C. J., and Norcott, Katz, Vertefeuille and Zarella, Js. Leonard M. Isaac, with whom were Louis A. Highmark, Jr., and, on the brief, James P. Brennan, for the appellants (plaintiffs).

John W. Lemega, with whom, on the brief, were Stephen H. Broer, John B. Farley and Bruce H. Raymond, for the appellees (defendants).

Opinion

ZARELLA, J.

The primary issue in this appeal is whether, under the circumstances of this case, the defendants owed a duty to the plaintiffs to refrain from preventing a third person from rendering aid to prevent damage to the plaintiffs' property. The plaintiffs, Joseph Gomes, Marguerite Gomes, Vic's Automotive Service, Inc., and Victor Mathieu brought an action in five counts against the defendants, Arnold Chase, Lawrence Perl, Michael Perl, Roger Freedman and West Hartford Motel Associates (hotel defendants), and Commercial Union Insurance Company (Commercial Union). The plaintiffs alleged in the first count that Lanita Carter, who was employed by the hotel defendants and allegedly acting within the scope of her employment as a desk clerk,¹ negligently prevented a hotel guest from "rendering aid to the plaintiffs...."In the second count, the plaintiffs alleged that the desk clerk, acting within the scope of her employment with the hotel defendants, intentionally prevented that guest from "rendering ... aid to the plaintiffs...." The plaintiffs alleged in the third count that, as a result of the desk clerk's acts or omissions, the hotel defendants violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq. In the fourth count of their complaint, the plaintiffs alleged negligent infliction of emotional distress on the part of all defendants owing to a letter sent to the plaintiffs by Commercial Union. In the fifth and final count, the plaintiffs alleged a violation of CUTPA on the part of all defendants as a result of the letter that formed the basis for the fourth count.

The defendants moved for summary judgment on all counts.² The trial court granted the defendants' motions and rendered judgment in favor of the defendants, from which the plaintiffs appealed to the Appellate Court. We transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

On appeal, the plaintiffs press only their claims of intentional and negligent prevention of the rendering of aid as to the hotel defendants and their negligent infliction of emotional distress and CUTPA claims as to Commercial Union. We reject the plaintiffs' claims and, accordingly, affirm the judgment of the trial court.

The following undisputed facts are relevant to this appeal. At or about 11:30 p.m. on Sunday, May 21, 1995, a guest at the West Hartford Inn (hotel) heard the sound of breaking glass and went to the window in her room to see what had caused the noise. The guest believed that she had observed someone breaking into the plaintiffs' gas station located immediately adjacent to the hotel. Thereafter, the guest contacted the desk clerk at the hotel so that the police would be notified. The desk clerk informed the guest she would "take care of it," and that the gas station was equipped with an alarm system through which the police would be notified of any attempted break-in. The guest believed that she had done all that she needed to do for the police to be contacted and returned to bed. Contrary to the desk clerk's statement, however, the plaintiffs' gas station was not equipped with an alarm system. Subsequently, other hotel guests smelled smoke, and they also notified the desk clerk, who did not notify the police or fire department. The plaintiffs' property sustained damage as a result of the break-in and a fire, which later was determined to be caused by arson. The hotel also was damaged by smoke from the fire on the plaintiffs' property.

On July 13, 1995, Commercial Union, the hotel's insurer, sent a letter addressed to the plaintiffs' gas station seeking reimbursement from the plaintiffs for an insurance claim that it had paid as a result of damage to the hotel caused by the smoke from the fire on the plaintiffs' property.³ Additional facts will be provided as necessary.

I

Prior to considering the plaintiffs' substantive claims, we address the standard of review governing each of those claims. Pursuant to Practice Book § 17-49, 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." On appeal, the plaintiffs do not challenge the trial court's conclusion that there are no material facts in dispute. Thus, each of the plaintiffs' claims raises only questions of law. This court subjects questions of law on appeal to plenary review. See, e.g., Hartford Electric Supply Co. v. Allen-Bradley Co., 250 Conn. 334, 367, 736 A.2d 824 (1999); United Technologies Corp. v. Groppo, 238 Conn. 761, 767, 680 A.2d 1297 (1996).

The plaintiffs first claim that the trial court improperly rendered summary judgment in favor of the hotel defendants on the first and second⁴ counts of the plaintiffs' complaint "because the [court] misfocused its attention on the lack of a special relationship between the plaintiffs and the defendants...." The plaintiffs argue that the trial court improperly concluded that Connecticut law does not provide a remedy to a plaintiff whose property sustains damage as a result of a defendant's prevention of a third party from aiding the plaintiff. We disagree. The plaintiffs urge us to adopt §§ 326⁵ and 327⁶ of the Restatement (Second) of Torts, made applicable to claims involving property damage through the operation of § 497 of the Restatement (Second) of Torts,⁷ as bases upon which to impose liability for interfering with a person attempting to render aid. The plaintiffs acknowledge that these sections of the Restatement (Second) of Torts previously have not been adopted in Connecticut.

The defendants argue that there is no public policy in Connecticut supporting the imposition of liability under §§ 326 and 327. Alternatively, the defendants argue that, even if we were to adopt §§ 326 and 327, these sections would not apply to this case because the desk clerk's actions did not prevent the guest from rendering aid to the plaintiffs.

A

We first address the plaintiffs' claim that, pursuant to § 326 of the Restatement (Second) of Torts, the hotel defendants should be held liable for the damage to the plaintiffs' property on the basis of the desk clerk's international prevention of the hotel guest from rendering assistance to the plaintiffs.⁸ We begin our analysis by considering the issue of whether the desk clerk prevented the hotel guest from rendering aid as that term is used in the Restatement. We conclude that the desk clerk did not prevent the guest from rendering aid.

Because the Restatement does not define the word "prevents," we first look to the scope note, illustration and comment accompanying § 326 for guidance. A scope note introduces each topic of the Restatement (Second) of Torts and purports to define the parameters of the sections covered by the topic that it accompanies. The scope note introducing the topic of prevention of assistance by third persons, of which § 326 is a part, provides that "[t]he actor can prevent a third person from rendering aid to another in many ways including the following: first, by so injuring the third person as to make him incapable of giving aid; second, by interfering with his efforts to give aid; third, by injuring or destroying the usefulness of a thing which the third person is using to give aid or by otherwise preventing him from using it; [and] fourth, by obstructing the third person's access to the other." 2 Restatement (Second), Torts p. 145 (1965) (scope note accompanying §§ 326 through 328). These examples define prevention by attempting, in general terms, to show ways in which prevention can be accomplished. The first, third and fourth examples contemplate that the actor physically stops the third person from rendering aid or compromises the efficacy of an item used in rendering aid. The second example contemplates interference with a person's efforts to render aid. This example appears to require active intervention on the part of the actor to prevent aid from being rendered.

We look next to the illustration accompanying § 326. It provides: "A prevents the fire department from using a fireplug in front of A's premises for the purpose of putting out a fire in B's house. This A does under an unfounded claim that he is entitled to the entire supply of water from the plug. In consequence, the fire department is unable to put out the fire and B, while carefully attempting to rescue from his house some valuable chattels, is injured. A is subject to liability to B." Id., § 326, p. 146, illustration (1). This illustration does not focus on the meaning of the word "prevents" in § 326 and thus offers little help in determining the scope or nature of the word "prevents" as contemplated by the drafters of the Restatement. The illustration contains no facts revealing how A prevented the fire department from using the fire hydrant. Finally, the comment accompanying § 326—offers no guidance as to the drafters' contemplation of the meaning of the word "prevents." See generally id., § 326, p. 146, comment (a). Having examined the Restatement and its supportive and explanatory materials, we next look at other sources for guidance.

Merriam-Webster's Dictionary defines "prevent" as "to deprive of power or hope of acting or succeeding... to keep from happening or existing ... [or] to hold or keep back...."...