LePage v. Horne

Decision Date03 December 2002
Docket Number(SC 16599)
Citation262 Conn. 116,809 A.2d 505
CourtConnecticut Supreme Court

Borden, Norcott, Katz, Palmer and Vertefeuille, Js.

Wesley W. Horton, with whom were Daniel J. Krisch, William J. Melley III and, on the brief, Trenton C. Haas and Michael R. Young, legal interns, for the appellant (defendant).

Gerald S. Sack, with whom was Nicole D. Dorman, for the appellee (named plaintiff).



This appeal arises from the tragic death of a seventy-five day old infant of sudden infant death syndrome (SIDS) while under the care of her day care provider. The defendant, Barbara Horne, doing business as Barbara's Child Care (Barbara's), appeals from the judgment of the trial court1, rendered after a jury trial, in favor of the plaintiff,2 Mary Katryn T. LePage, as administratrix of the estate of her daughter, Shelby Brooke LePage (Shelby). The dispositive issue on appeal is whether the plaintiff was required to introduce expert testimony to establish the requisite standard of care for attending to a sleeping infant so as to prevent SIDS. We conclude that expert testimony was required in the present case. In the absence of any such testimony, we reverse the judgment of the trial court.

The jury reasonably could have found the following facts. Since 1990, the defendant has owned and operated Barbara's, a licensed home day care facility in the town of Bolton. On December 7, 1998, the first day that the plaintiff returned to work after Shelby's birth, the plaintiff and her husband brought Shelby and their four year old son, Tyler LePage, to Barbara's. Tyler had been attending Barbara's since 1996. In conversations with the defendant prior to Shelby's first day at Barbara's, the plaintiff had asked that the defendant put Shelby in her car seat or swing when Shelby went down for her nap, so she would be near the other children. The defendant put Shelby down to sleep in the swing that first day.

The following day, the defendant was caring for four other young children, in addition to Shelby and Tyler. At 1 p.m., the five older children, including Tyler, began their regular naptime in the childproof basement area of the defendant's house. At approximately 2 p.m., the defendant took Shelby up to the main level of the house to bottle feed her. Sometime between 2:30 p.m. and 2:45 p.m., the defendant put Shelby down for her nap in a portable crib located in a room adjacent to the kitchen on the main floor. The defendant placed Shelby in the crib on her side and left the room. Around 3 p.m., the defendant woke the other children from their naps, at which time Tyler asked to see Shelby. At 3:05 p.m., the defendant took Tyler upstairs to the room in which Shelby was sleeping. Shelby appeared to be sleeping comfortably, but then was sleeping on her stomach, with her head to the side.3 The defendant decided not to disturb Shelby's sleep by shifting her onto her side or back. The next time the defendant went to check on Shelby was at approximately 4 p.m.4 When she entered the room, the defendant noticed that Shelby's head was turned face down and, upon picking Shelby up, found her limp and lifeless. The defendant immediately called 911 and began cardiopulmonary resuscitation. Emergency medical personnel arrived shortly thereafter and transported Shelby to Manchester Memorial Hospital, where she was pronounced dead. After investigations by the police and the department of children and families, and after an autopsy had been performed, the cause of death was determined to be SIDS.

The following additional facts and procedural history are relevant to our resolution of this appeal. The plaintiff filed an amended complaint alleging that the defendant's negligence had caused Shelby's death and seeking damages. The plaintiff alleged that the defendant had been negligent in that, inter alia: (1) "she knew or should have know[n] that, in 1992 and again in 1996, the American [Academy] of Pediatrics strongly recommended that infants not be placed in the prone position for sleep while unattended, due to the dangers of [SIDS], yet she did so with . . . Shelby LePage"; (2) "she left... Shelby LePage unattended for an extended period of time when, in the exercise of due care, she should not have done so";5 and (3) "while she observed . . . Shelby LePage on her stomach while sleeping, and knew of an association between sleeping in this position and SIDS, she failed to move Shelby LePage onto her back when she could and should have done so."

At trial, the plaintiff introduced the testimony of Herbert H. Scherzer, the director of the Sleep Disorders Laboratory at Saint Francis Hospital and Medical Center in Hartford, as an expert to prove the cause of Shelby's death.6 Scherzer testified that he had reviewed medical studies from various countries, including the United States, which indicate that, although there are several risk factors that have been identified as associated with SIDS, the highest risk factor is sleeping in the prone position. In addition to citing those studies, Scherzer noted that, because of this increased risk, the American Academy of Pediatrics (Academy) had issued a recommendation in 1992 suggesting that infants be placed on their side or back for sleep. He stated that, although the occurrence of SIDS is a "rare event," studies indicate that the statistical risk of it occurring increases anywhere from twofold to twelvefold when the infant is sleeping in the prone position. On cross-examination, Scherzer conceded that the risk of SIDS exists even when an infant is placed on its side or back, albeit a lower risk than when the infant is placed on its stomach. He concluded, however, that it was "[h]ighly probable" that Shelby's sleep position caused her death.

On direct examination by the plaintiff's counsel, the defendant admitted that, at the time of Shelby's death, she was aware of the Academy's recommendation that infants be placed for sleep on their side or back. The defendant further admitted that she was aware that this recommendation was based on an association between an infant's sleep position and the risk of SIDS. The defendant testified that she initially had placed Shelby on her side, but that she did not think of SIDS when she subsequently checked on Shelby and saw her sleeping on her stomach.

At the close of the plaintiff's case, the defendant moved for a directed verdict, on the ground that the plaintiff had failed to introduce any evidence of a specific standard of care applicable to the defendant. The defendant further contended that the plaintiff was required to introduce expert testimony to establish that standard of care. The trial court concluded that, "as a matter of law, there is a duty of a day care provider to provide . . . a reasonably safe environment for [his or her] wards . . . that takes into consideration the age and abilities and experience of those children. . . ." With respect to the issue of whether expert testimony was required, the trial court concluded that the experience of caring for a child is "so pervasive and so commonplace that an ordinary juror can judge what the standard of care is as to what is reasonably safe for the activity of an infant." Accordingly, the trial court denied the defendant's motion for a directed verdict.

During the presentation of her case, the defendant introduced testimony by Ira Kanfer, the forensic pathologist who had performed the autopsy on Shelby. Kanfer testified that he had determined that Shelby had died of SIDS after ruling out all other medical causes. According to Kanfer, medical science does not know the cause of SIDS. He further testified that the fact that Shelby had been sleeping in the prone position was irrelevant to his diagnosis.

Thereafter, the jury returned a verdict in favor of the plaintiff, awarding $200,000 in economic damages and $600,000 in noneconomic damages. The defendant moved to set aside the verdict, claiming that the jury had found in the plaintiff's favor based on the breach of a duty by the defendant despite the absence of evidence of the requisite standard of care.7 In its memorandum of decision addressing the defendant's motion, the trial court noted that knowledge of a dangerous condition could establish the scope of a duty of care and determined that the defendant was aware of the Academy's recommendations to place infants on their side or back for sleeping. The court concluded that "a reasonable day care provider, armed with the defendant's knowledge of the proper sleeping position to minimize the risk of SIDS, owes a duty of care to infants whose welfare has been entrusted to the provider to guard against placing babies to sleep on their stomachs and to restore them to [a] supine position should the provider discover that the child has rolled into the prone position." Accordingly, the trial court denied the defendant's motion to set aside the verdict. Thereafter, the trial court rendered judgment for the plaintiff in accordance with the jury's verdict.8 This appeal followed. On appeal, the defendant claims that the trial court improperly: (1) denied her motion to set aside the verdict based on the plaintiff's failure to present any expert testimony establishing the requisite standard of care;9 (2) charged the jury that the defendant was required to exercise "very great care" if there existed a potential for a risk of death; and (3) permitted the testimony of Scherzer as the plaintiff's expert on causation. We agree with the defendant as to the first issue and, accordingly, do not reach her remaining claims.

We begin by setting forth the relevant parameters under our negligence jurisprudence. "The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. . . . ...

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