Gore v. People's Sav. Bank

• Decision Date: 20 September 1994
• Docket Number: No. 12203,12203
• Citation: 644 A.2d 945,35 Conn.App. 126
• Court: Connecticut Court of Appeals
• Parties: Thomas GORE et al. v. PEOPLE'S SAVINGS BANK et al.

Page 945

644 A.2d 945

35 Conn.App. 126

Thomas GORE et al. v. PEOPLE'S SAVINGS BANK et al.

No. 12203.

Appellate Court of Connecticut.

Argued Feb. 15, 1994.

Decided July 12, 1994.

Certification Granted, Limited to the Following Issues Sept.

20, 1994.

Dana P. Lonergan, Bridgeport, for appellants (plaintiffs).

Peter J. Dauk, Bridgeport, with whom was Lawrence F. Reilly, Morristown, for appellees (defendants).

Before FREDERICK A. FREEDMAN, SCHALLER and SPEAR, JJ.

SCHALLER, Judge.

The plaintiffs, Thomas Gore, Wanda Copeland and their minor child, Kendall Copeland, ¹ appeal from the judgment of the trial court, rendered after a jury verdict, in favor of the defendants, People's Savings Bank (People's) and M.S.B. Real Estate Corporation (M.S.B.), on two counts of negligence. The plaintiffs' amended complaint contained six counts. The first count, as to People's, and the third count, as to M.S.B., alleged negligence. The second count, as to People's, and the fourth count, as to M.S.B., alleged that the defendants had breached the lease agreement. The fifth count, as to People's, and the sixth count, as to M.S.B., alleged strict liability. The trial court granted the defendants' motions for directed verdict as to the fifth and sixth counts, from which the plaintiffs took an exception and filed a motion to set aside the verdict. The trial court denied the motion to set aside. ²

The dispositive issues on appeal are whether the trial court improperly (1) refused to instruct the jury that, if it found the defendants in violation of General Statutes §§ 47a-7, 47a-8 or 47a-54f, ³ the defendants were negligent per se, and (2) directed a verdict in favor of the defendants on the counts alleging strict liability based on a violation of §§ 47a-7, 47a-8 or 47a-54f. ⁴ We conclude that the trial court improperly directed a verdict in favor of the defendants on the strict liability counts, and remand this case for a new trial.

The jury reasonably could have found the following facts. In 1984, Kendall and his parents moved into an apartment in Bridgeport owned by the defendants. Kendall ingested chips of paint in the apartment, and, in 1985, was diagnosed as having a high level of lead in his blood. Upon notification of Kendall's medical status, Audrey Gains, an official from Bridgeport's lead poisoning prevention program, conducted tests at the apartment utilizing a lead-paint analyzer. In the living room of the apartment, where chips of paint were found on a window sill, the analyzer indicated a measurement of 8.3 milligrams of lead per square centimeter. Gains subsequently notified the defendants of the results of the tests.

The plaintiffs assert that the trial court improperly directed a verdict as to the counts sounding in strict liability. " 'The standard of review of directed verdicts is well settled. A directed verdict is justified if on the evidence the jury could not reasonably and legally have reached any other conclusion. Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986); Golembeski v. Metichewan Grange No. 190, 20 Conn.App. 699, 701, 569 A.2d 1157 (1990).' Merola v. Burns, 21 Conn.App. 633, 636, 575 A.2d 1025 (1990). In reviewing the trial court's action in directing a verdict for [the defendants], we must consider the evidence in the light most favorable to the plaintiff[s]. Petyan v. Ellis, supra [200 Conn. at 244, 510 A.2d 1337]; Merola v. Burns, supra [21 Conn.App. at 636, 575 A.2d 1025]." Berry v. Loiseau, 223 Conn. 786, 819-20, 614 A.2d 414 (1992).

In order to address the plaintiffs' issues concerning the directed verdict as to the strict liability counts, we must first distinguish the plaintiffs' claims of negligence per se. The parties intimate that these two causes of action are virtually identical. Both actions are grounded in claims that the defendants violated (1) General Statutes §§ 47a-8 and 47a-7, which together provide that the presence of paint containing lead in excess of certain federally prescribed standards or of certain flaking or peeling paint that constitutes a health hazard renders certain rental premises uninhabitable, ⁵ and (2) General Statutes § 47a-54f, which proscribes certain flaking or peeling paint that constitutes a health hazard.

"The doctrine of negligence per se serves to superimpose a legislatively prescribed standard of care on the general standard of care. Wendland v. Ridgefield Construction Services, Inc., 184 Conn. 173, 178, 439 A.2d 954 (1981)." Staudinger v. Barrett, 208 Conn. 94, 101, 544 A.2d 164 (1988). " 'Where a statute is designed to protect persons against injury, one who has, as a result of its violation, suffered such an injury as the statute was intended to guard against has a good ground of recovery.' Knybel v. Cramer, 129 Conn. 439, 443, 29 A.2d 576 [1942]; Coughlin v. Peters, 153 Conn. 99, 102, 214 A.2d 127 [1965]. That principle of the law sets forth two conditions which must coexist before statutory negligence can be actionable. First, the plaintiff must be within the class of persons protected by the statute. [Coughlin v. Peters, supra, at 101, 214 A.2d 127]; Hassett v. Palmer, 126 Conn. 468, 473, 12 A.2d 646 [1940]; Monroe v. Hartford Street Ry. Co., 76 Conn. 201, 207, 56 A. 498 [35 Conn.App. 131] [1903]. Second, the injury must be of the type which the statute was intended to prevent. Toomey v. Danaher, 161 Conn. 204, 212, 286 A.2d 293 [1971]; Longstean v. McCaffrey's Sons, 95 Conn. 486, 493, 111 A. 788 [1920]. See Prosser, Torts (4th Ed.) § 36; 2 Restatement (Second), Torts §§ 286, 288." Wright v. Brown, 167 Conn. 464, 468-69, 356 A.2d 176 (1975).

Pursuant to § 288A of the Restatement (Second) of Torts, a defendant can rebut an allegation of negligence per se through proof of an excuse for the violation. Section 288A provides that, unless the statute is construed not to permit an excuse, the violation of such a statute "is excused when (a) the violation is reasonable because of the actor's incapacity; (b) he neither knows nor should know of the occasion for compliance; (c) he is unable after reasonable diligence or care to comply; (d) he is confronted by an emergency not due to his own misconduct; [and] (e) compliance would involve a greater risk of harm to the actor or to others." (Emphasis added.) In the case of strict liability, however, the defendant is liable without fault upon proof of the violation of the statute and proximate causation. When an excuse is not permitted under the construction of the applicable statute, strict liability exists. ⁶

We note that the distinctions between statutory negligence per se and strict liability have rarely been explored by our courts. In Vingiano v. Frisco, Superior Court, judicial district of New Haven, Docket No. 240142 (June 23, 1986), Judge (now Justice) Berdon discussed the differences between negligence per se and strict liability. Vingiano concerned the nature of civil liability pursuant to General Statutes (Rev. to 1983) § 14-80(a), which required that "service and parking brake systems ... shall be maintained at all times in good working order." Judge Berdon commented that the key difference between the imposition of negligence per se and strict liability concerned the fact that § 288A of the Restatement (Second) of Torts provided excuses for violations of statutes under the doctrine of negligence per se, while there is no provision for excuses under the doctrine of strict liability. Judge Berdon noted that our courts have often confused the terms strict liability and negligence per se. ⁷ Judge Berdon then concluded that the legislature did not intend that excuses be permitted for violation of § 14-80(a), that § 14-80(a) imposed strict liability and that the second element of strict liability, namely proximate causation, had been met. Vingiano v. Frisco, supra.

In assessing whether the violation of § 47a-8 or § 47a-54f can provide for civil liability pursuant to a negligence per se theory, we must determine whether the legislature, in adopting the statute, anticipated the plaintiff to be a member of the protected class and intended to prevent the harm that resulted. "To determine the collectively expressed legislative intent, we look first to the language of the statute itself. If that language is plain and unambiguous, we go no further. University of Connecticut v. Freedom of Information Commission, 217 Conn. 322, 328, 585 A.2d 690 (1991). If, however, the statute is ambiguous, e.g., either opaque or susceptible to alternative conflicting interpretations, we will seek guidance from 'extrinsic aids,' e.g., the legislative history. Shelby Mutual Ins. Co. v. Della Ghelfa, 200 Conn. 630, 637-38, 513 A.2d 52 (1986); State v. Ellis, 197 Conn. 436, 445, 497 A.2d 974 (1985)." Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991).

Section 47a-8 provides the following two ways in which the paint may render premises uninhabitable: (1) the paint does not conform to certain standards concerning the content of lead set forth in the federal Lead-Based Poisoning Prevention Act; or (2) the paint is cracked, chipped, blistered, flaking, loose or peeling and constitutes a health hazard. The purpose of the portion of the statute prescribing the amount of lead in paint that can be used in a premises pursuant to certain federal statutes is unambiguous. The plaintiff, who was a minor resident of a rental premises, is a member of the class of persons intended to be protected by the statute. The reference to the federal statute designed to curb lead-based paint poisoning clearly renders the alleged injury suffered, lead-based paint poisoning, as the type of injury that the legislature intended to curb. See Torres v. Melody, Superior Court, judicial district of Norwich, Docket No. CV910098765, 1992 WL 33699 (February 13, 1992) (concluding that § 47a-8 covered members of the class that included a minor child living at rented premises, and that § 47a-8 addressed injuries...