Heritage Village Master Ass'n, Inc. v. Heritage Village Water Co., 10410

• Decision Date: 23 March 1993
• Docket Number: No. 10410,10410
• Citation: 622 A.2d 578,30 Conn.App. 693
• Court: Connecticut Court of Appeals
• Parties: HERITAGE VILLAGE MASTER ASSOCIATION, INC. v. HERITAGE VILLAGE WATER COMPANY.

Page 578

622 A.2d 578

30 Conn.App. 693

HERITAGE VILLAGE MASTER ASSOCIATION, INC. v. HERITAGE VILLAGE WATER COMPANY.

No. 10410.

Appellate Court of Connecticut.

Argued Jan. 15, 1992.

Decided March 23, 1993.

[30 Conn.App. 694] Augustus R. Southworth III, with whom, on the brief, was Nancy P. Maxwell, Waterbury, for appellant (plaintiff).

Dean M. Cordiano, with whom, on the brief, was Ann McClure, for appellee (defendant).

Before [30 Conn.App. 693] LAVERY, LANDAU and FREDERICK A. FREEDMAN, JJ.

FREDERICK A. [30 Conn.App. 694] FREEDMAN, Judge.

The plaintiff, as managing agent for the Heritage Village Condominiums (Heritage Village), appeals from the judgment of the trial court rendered, after a jury trial, for the defendant in this action sounding in negligence, products liability and nuisance. The dispute between the parties centers around the quality of water supplied to the plaintiff by the defendant and the plaintiff's

contention that the water damaged pipes and plumbing fixtures in its condominium complex. In this appeal, the plaintiff sets forth challenges to (1) the trial court's denial of its motion for partial summary judgment, (2) certain evidentiary rulings by the trial court, (3) the jury instructions, and (4) the trial court's denial of its motion to set aside the verdict as against the weight of the evidence. We affirm the judgment of the trial court

Heritage Village is a condominium community made up of twenty-four member condominiums in Southbury. The plaintiff, Heritage Village Master Association, Inc., is a corporation that manages the community on behalf of the residents. The defendant, Heritage Village Water Company, has been the exclusive provider of water to Heritage Village since it was constructed in the mid-1960s. The defendant's water distribution system supplies water to the condominiums via water mains that connect to lateral piping and then to service lines that lead to couplings. Copper tubing then carries the water from the coupling outside each condominium unit and under the concrete slab on which the condominium is built and into the unit.

Beginning in approximately 1977, condominium residents began experiencing leaks in the copper pipes under the slab on which the condominiums were built. To repair the leaks, extensive work is necessary, including ripping up carpeting, jack hammering through the floors and slabs, removing and replacing the leaking pipe and repairing the concrete slabs and interior flooring of the condominiums.

The jury heard extensive and conflicting evidence regarding the cause of the leaks in the copper tubing. The plaintiff's experts opined that the leaks were a result of the pH chemistry of the water. The defendant's experts attributed the leaks to a combination of other factors.

The jury returned a verdict for the defendant. After the plaintiff's motion to set aside the verdict was denied by the trial court, this appeal followed.

I DENIAL OF MOTION FOR PARTIAL SUMMARY JUDGMENT

The plaintiff first contends that the trial court, McDonald, J., should not have denied its motion for partial summary judgment on the issue of the defendant's liability. The plaintiff argues that the trial court improperly failed to give collateral estoppel effect to a prior determination of the Connecticut department of public utility control (DPUC) regarding the cause of the leaks in the pipes at Heritage Village. We disagree.

The following additional facts are relevant to the resolution of this issue. At an early stage in the proceedings in Superior Court, the trial court, O'Brien, J., issued an order directing the DPUC to consider the plaintiff's request for injunctive relief requiring an immediate change in the water supplied by the defendant to the residents of Heritage Village. In all other respects, the trial court retained jurisdiction of this action for damages. The DPUC is charged with responsibility for determining the adequacy and efficiency of service rendered by utilities in Connecticut. After a public hearing at which the plaintiff and the defendant, as well as other interested parties, were given an opportunity to present evidence and to cross-examine witnesses, the DPUC issued a decision concluding that "the majority of the pitting of the pipes located at Heritage Village is internal in nature, and the source of this internal corrosion is the chemical composition of the water. In addition, this internal corrosion perforates to the outside of the pipes and causes external corrosion. The amount of external corrosion present on these pipes is exacerbated by the under slab environment of the pipes, due to the improper manner in which the several pipes at Heritage Village were installed by the Developer, and the failure of the [defendant] to properly inspect these installations, in accordance with the Department's regulations. Therefore, the [defendant] has unreasonably failed to provide adequate service to the residents of Heritage Village who have experienced [leaks]...."

Accordingly, the DPUC ordered the defendant, inter alia, to increase the alkalinity of the water, or its pH factor, to as near to 8.5 as possible.

The defendant unsuccessfully challenged the decision of the DPUC in an administrative appeal to the Superior Court. In that proceeding, the defendant argued that the DPUC was without authority to make a finding that the pH factor of the water was too low and that it was the cause of the pipe corrosion. The court, McDonald, J., noted that the DPUC had been ordered to hear and determine the issue of whether an immediate change in the water supplied to Heritage Village should be ordered. The court concluded that "[t]his is precisely what the DPUC did and the questioned finding was necessary before such an order could enter."

Before considering the merits of the trial court's ruling on the plaintiff's motion for partial summary judgment, we must first determine whether the denial of that motion is reviewable on appeal. Our courts have held that the denial of a motion for summary judgment is generally not appealable where a full trial on the merits produces a verdict against the moving party. Gurliacci v. Mayer, 218 Conn. 531, 541 n. 7, 590 A.2d 914 (1991); Greengarden v. Kuhn, 13 Conn.App. 550, 552, 537 A.2d 1043 (1988). The rationale for the rule adopted in Gurliacci and Greengarden is that a decision based on more evidence should preclude review of a decision based on less evidence. Gurliacci v. Mayer, supra. That rationale, however, is not applicable here where principles of collateral estoppel could bar the defendant from presenting evidence to dispute the issue of its liability and where the judgment after full trial may, in fact, be based on the same evidence presented in the prior proceeding that yielded a determination in favor of the plaintiff. To conclude otherwise, we believe, would frustrate the policy behind the doctrine of collateral estoppel which seeks to limit a party to a single opportunity to litigate a disputed issue. Convalescent Center of Bloomfield, Inc. v. Department of Income Maintenance, 208 Conn. 187, 194, 544 A.2d 604 (1988); In re Juvenile Appeal (83-DE), 190 Conn. 310, 318, 460 A.2d 1277 (1983). This conclusion follows our recent determination that "the strict application of our rules of practice has yielded to a more common sense application when confronted with the implications of the doctrine of collateral estoppel." Carnese v. Middleton, 27 Conn.App. 530, 537, 608 A.2d 700 (1992). We therefore consider the merits of the plaintiff's claim.

"Where an issue of ultimate fact (1) was fully and fairly litigated in a prior [proceeding] between the parties, (2) was actually decided ... in that prior [proceeding], and (3) was necessary to the judgment rendered in the prior [proceeding], that factual determination may be given collateral estoppel effect in a subsequent action between the parties." Id., at 540-41, 608 A.2d 700. Although we afford appellate review to the plaintiff's claim that the trial court should have granted its motion for partial summary judgment, we conclude that principles of collateral estoppel did not bar further litigation of the issues of the defendant's liability for two reasons.

First, even if the DPUC decision is interpreted to have resolved the issue of the cause of the leaks in question, liability is predicated on more than a determination of cause in fact. In both a negligence claim and a product liability claim, a plaintiff must establish more than that the defendant's conduct was a cause of the plaintiff's injuries in order to establish the defendant's liability. See generally D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Torts (3d Ed.) §§ 29, 32, 33, 34 (negligence) and §§ 81A, 81E (product liability). One such element of liability is foreseeability as it relates to causation. Id. In its decision, however, the DPUC specifically and properly disavowed any determination of the issue of foreseeability as it relates to causation. ¹ Because not all Second, a determination of the issue of causation in the tort law sense was not necessary to the resolution of the issues before the DPUC. The question before the DPUC was whether the DPUC should order a change in the chemistry of the water supplied by the defendant to Heritage Village. While it was necessary for the DPUC to determine that the chemical makeup of the defendant's water played some role in its customers' problems, and hence that the water company was not fulfilling its statutory duty to provide adequate service, it was not required to determine that the defendant's conduct was "a substantial factor in bringing about the plaintiff's injuries"; (emphasis added) Hearl v. Waterbury YMCA, 187 Conn. 1, 4, 444 A.2d 211 (1982); in order to reach its conclusion. The plaintiff was not entitled to use the doctrine of collateral estoppel to prevent the defendant from contesting an issue of liability where the critical...