Palkimas v. Fernandez

• Decision Date: 04 August 2015
• Docket Number: No. 36548.,36548.
• Citation: 122 A.3d 704,159 Conn.App. 129
• Parties: Richard PALKIMAS v. Oscar FERNANDEZ et al.
• Court: Connecticut Court of Appeals

159 Conn.App. 129

122 A.3d 704

Richard PALKIMAS

v.Oscar FERNANDEZ et al.

No. 36548.

Appellate Court of Connecticut.

Argued April 7, 2015.

Decided Aug. 4, 2015.

Richard H.G. Cunningham, for the appellant (plaintiff).

Robert D. Laurie, with whom, on the brief, were Heather L. McCoy and Shrina B. Faldu, West Hartford, for the appellee (defendant Nationwide Insurance Company of America).

DiPENTIMA, C.J., and MULLINS and BEAR, Js.

Opinion

DiPENTIMA, C.J.

The plaintiff, Richard Palkimas, appeals from the judgment of the trial court rendered in favor of the defendant Nationwide Insurance Company of America.¹ On appeal, the plaintiff claims that the court improperly (1) determined that the defendant was not liable for the alleged negligence of Hygenix, Inc., and ServPro, which were independent contractors, and (2) found that the defendant did not cause damage to the plaintiff's property. We conclude that the court's finding of a lack of proximate cause is not clearly erroneous.² Accordingly, we affirm the judgment of the court.³

The memorandum of decision of the court set forth the following relevant facts. The plaintiff owned a home located at 350 Soundview Avenue in Stamford (house). In January, 2006, the plaintiff hired Oscar D. Fernandez “to restore windows in the house, perform exterior and interior painting, and lead pain[t] encapsulation.” At the time, the defendant was Fernandez' insurance carrier. In September, 2006, near the end of the renovation, an “unknown person” used a disconnected toilet, which resulted in water and waste flooding various rooms of the house, causing substantial damage.

Hygenix, Inc., and ServPro—both independent contractors—were hired to remediate the flooded area. During the remediation process, the heat to the house was turned off. At trial, the plaintiff claimed that the defendant ordered the heat turned off. The defendant, however, insisted that it never made such request and, moreover, that it was the plaintiff who had ordered the heat turned off.

Once the remediation was finished, the plaintiff returned to the house and discovered damage to the horsehair plaster walls.⁴ Specifically, the plaintiff observed cracks in the walls and found the walls soft to the touch. Afterward, the plaintiff ascertained that most of the plaster keyways had been broken.⁵ The plaintiff claimed that turning off the heat damaged the horsehair plaster walls by exposing the walls to freezing winter temperatures and moisture. The defendant maintained that neither the temperature during the winter of 2006 to 2007 nor the moisture in the house caused the damage to the horsehair plaster walls.

On January 27, 2009, the plaintiff commenced this action with a three count complaint. On March 22, 2013, the plaintiff withdrew the action as to Fernandez and Oscar Painting Contractor, LLC. On June 10, 2013, the plaintiff filed an amended complaint alleging that the defendant was negligent because it “should have provided for an alternative source of heat to prevent the fracturing and shattering of plaster ... should have assured that the remediation was being done in an expeditious fashion instead of prolonging the process allowing the property to be exposed to freezing temperatures for excessive periods of time ... [and] failed to appreciate the dangers inherent in allowing a home of this nature to be subject to freezing temperatures for prolonged periods of time.” The defendant filed its answer and special defenses on June 12, 2013, denying the claim of negligence.

A trial to the court began on June 17, 2013, and lasted four days. On January 2, 2014, the court rendered judgment in favor of the defendant. Specifically, it found that the defendant was not in control of the independent contractors and that the plaintiff failed to prove proximate causation. This appeal followed. Additional facts will be set forth as necessary.

The dispositive issue in this appeal is whether the court properly found that the plaintiff failed to establish proximate causation. In his appellate brief, the plaintiff argues that the court improperly determined that the opinion of the plaintiff's expert witness was unpersuasive because his conclusions were unverified by “any scientific experiments or tests at the [house]....” The defendant, however, asserts that the court, as trier of fact, properly weighed the competing experts' testimony as to proximate causation and correctly found that the plaintiff failed to prove proximate causation. We conclude that the trial court's finding was not clearly erroneous.

We begin with the standard of review, which is contested by the parties. The plaintiff seeks a plenary review, while the defendant asserts that our review is subject to the clearly erroneous standard. We agree with the defendant. The court found that the plaintiff failed to prove that the damage to the horsehair plaster walls was proximately caused by the failure to heat the premises during the remediation process. “Proximate cause is ordinarily a question of fact.” (Internal quotation marks omitted.) Gurguis v. Frankel, 93 Conn.App. 162, 168, 888 A.2d 1083, cert. denied, 277 Conn. 916, 895 A.2d 789 (2006).

“Our standard of review concerning a trial court's findings of fact is well established. If the factual basis of the court's decision is challenged, our review includes determining whether the facts set out in the memorandum of decision are supported by the record or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous.... Further, a court's inference of fact is not reversible unless the inference was arrived at unreasonably.... We note as well that [t]riers of fact must often rely on circumstantial evidence and draw inferences from it.... Proof of a material fact by inference need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact.... Moreover, it is the exclusive province of the trier of fact to weigh the conflicting evidence, determine the credibility of witnesses and determine whether to accept some, all or none of a witness' testimony .... Thus, if the court's dispositive finding ... was not clearly erroneous, then the judgment must be affirmed.” (Emphasis in original; internal quotation marks omitted.) Stein v. Tong, 117 Conn.App. 19, 24, 979 A.2d 494 (2009).

The elements necessary to prove an action for negligence are well established: “duty; breach of that duty; causation; and actual injury.... If a plaintiff cannot prove all of those elements, the cause of action fails.... [I]n a negligence action ... [a] causal relation between the defendant's wrongful conduct and the plaintiff's injuries is a fundamental element without which a plaintiff has no case.... To prevail on a negligence claim, a plaintiff must establish that the defendant's conduct legally caused the injuries.... The first component of legal cause is causation in fact. Causation in fact is the purest legal application of ... legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct.... The second component of legal cause is proximate cause.... [T]he test of proximate cause is whether the defendant's conduct is a substantial factor in bringing about the plaintiff's injuries.... Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendant's conduct].... The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection.... This causal connection must be based upon more than conjecture and surmise.” (Citation omitted; internal quotation marks...