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Partnership Announcement
Szilagyi & Daly is pleased to announce Attorney Carrie Coulombe as its newest partner, effective August 1, 2019. Ms. Coulombe has been with the firm since 2010. Since that time, her years of service have made significant contributions to the firm and its clients. Her practice with the firm is concentrated on the defense of professional liability claims, municipal liability claims, including police misconduct, product liability claims, liquor liability claims, general tort liability claims, premises liability claims, as well as the defense of automobile, trucking and under insured motorist claims. Ms. Coulombe also handles insurance coverage issues and claims of bad faith. She has defended clients in state and federal courts and has successfully tried cases to verdict.
We are excited to welcome Ms. Coulombe as the firm’s newest partner, and look forward to her continued commitment to providing our clients with quality legal representation.
Szilagyi & Daly Participates in Primerus’ Global Day of Service
On December 13th, Szilagyi & Daly participated in the Salvation Army’s Adopt-A-Family program and has adopted a local low-income family in need for the holidays. Each member of the family provided a wish list with items they need, and as a firm we coordinated to fulfill their wish list.
Frank J. Szilagyi said, “We are pleased to be able to once again participate in this wonderful endeavor to share the spirit of the Christmas Holidays with a deserving family. Thank you to the Salvation Army for organizing this effort and all at Szilagyi & Daly for your generous contributions”.
Attorney Tyler Dew Co-Hosts Inaugural DADs against Brain Cancer Golf Tournament
On August 26, 2019, Attorney Tyler A. Dew co-hosted the First Annual DADs Against Brain Cancer Golf Tournament, at the Golf Club of Avon, in memory of their fathers to benefit brain cancer research. The tournament was very well received and raised over $15,000 for Jackson Laboratory’s brain cancer research. Szilagyi & Daly was a proud sponsor of the tournament for this worthy cause. The group has already received requests from participants for save the dates for next year. Congratulations to Tyler, his brother Mike, and Donny Annicelle on a successful first year!
Attorney Tyler Dew was honored as a New Leader in the Law by the Connecticut Law Tribune
Congratulation to Attorney Tyler A. Dew who was recognized as a New Leader in the Law by the Connecticut Law Tribune. Attorney Dew was honored with the award for his “tremendous court presence, sense of responsibility, and potential.” Additionally, he was described by colleagues as one of the most prepared attorneys around. The honor is awarded to young and up-and-coming attorneys who have distinguished themselves early in their careers as solid, diligent, effective, and conscientious lawyers who show compassion for their clients and respect for the profession. Congratulations to Attorney Dew for this honor!
Attorney Tyler Dew Wins Summary Judgment for the Bristol Housing Authority
On October 9, 2019, Attorney Tyler A. Dew won a motion for summary judgment in his representation of Bristol Housing Authority. The Honorable Peter E. Wiese ruled in favor of the motion for summary judgment for this case that centered around a December 14, 2016 slip and fall. Attorney Dew drafted and argued the motion for summary judgment. Attorney Dew argued the Plaintiff did not comply with Connecticut General Statute § 8-67 notice requirement as the Plaintiff did not follow the service requirements established in the Statute.
Firm Successfully Obtains Summary Judgment on Behalf of Local Housing Authority
In Charlie Lewes-Johns vs. Bristol Housing Authority, the Plaintiff, two days after sustaining a slip and fall on snow and ice on a sidewalk in a housing complex owned by the BHA, reported that he had fallen to BHA personnel. That oral report was taken down in a handwritten and timestamped note by the BHA employee. The Court rejected Plaintiff’s argument that the notice detailing his fall within two days of it occurring met those requirements. Plaintiff argued summary judgment was not appropriate because the BHA employee had apparent authority to accept the notice on behalf of the chairman or executive director by virtue of her signing and timestamping it upon receipt. The Court, in granting summary judgment, noted that no case law supported the argument that an employee had the authority to waive the notice requirement of § 8-67. The Court, in supporting its ruling. Prevailing on summary judgment in this claim and others like it allows for the purpose of § 8-67 to be fulfilled, that is allowing for our public institutions to have timely notice of such claims so, among other things, measures can be taken to correct issues and protect other members of the public.
Firm Obtains Favorable Jury Verdict for Local Housing Authority in Premises Liability Case
Frank J. Szilagyi, representing a local housing authority as a defendant in a premises liability case, obtained a favorable jury verdict in a personal injury action after trial at the Hartford Superior Court. The case arose out of a slip-and-fall that occurred on Jan. 16, 2011, on a public walkway controlled by the local housing authority. The plaintiff suffered serious personal injuries. The plaintiff claimed that the housing authority was negligent in maintaining its property and that the premises were defective due the presence of snow and ice. After several days of trial, the jury deliberated for approximately one hour prior to returning its verdict for our client, the local housing authority.
Firm Successfully Obtains Summary Judgment on Behalf of Manufacturing Company
Carrie M. Coulombe, representing Regal Manufacturing Co., Inc., a defendant in a products liability case, successfully argued a Motion for Summary Judgment at the Stamford Superior Court on Feb. 3, 2014. Attorney Coulombe argued that Regal Manufacturing Co., Inc., was entitled to summary judgment because the plaintiff failed to identify a specific product defect that caused his injuries. The court granted the Motion for Summary Judgment on the grounds that the plaintiff’s stated belief that the stool collapsed underneath him was not sufficient evidence that the metal stool in fact malfunctioned by collapsing underneath him or that the stool was otherwise dangerous or defective. The court further found that the “malfunction doctrine” did not apply as the court was unable to find sufficient circumstantial evidence that the stool manufactured by Regal was defective in the first instance or evidence negating other reasons for the plaintiff’s fall.
Firm Successfully defends Modular Home Builder in Products Liability Claim
Frank J. Szilagyi successfully defended a modular home builder against claims that its modular homes were defectively manufactured and as a result, pipes froze and caused flooding, resulting in extensive property damage. After concluding a thorough investigation of the facts and applicable law, the firm filed its motion for summary judgment, arguing that the evidence was legally insufficient to raise a genuine issue of fact for a trial court or jury to consider. The plaintiff subsequently withdrew its claim against our client.
Frank J. Szilagyi Receives Outstanding Service Award
On Oct. 26, 2013, Frank J. Szilagyi, was honored by the International Society of Primerus Law Firms with its Outstanding Service Award in recognition of his outstanding service on behalf of his fellow members.
Frank J. Szilagyi Reelected Chairman of the Board of Directors for Oak Hill
On November 21, 2013, Frank J. Szilagyi was reelected Chairman of the Board of Directors for Oak Hill (Connecticut Institute of the Blind, Inc.), Connecticut’s largest non-profit provider of services to the disability community.
Firm Successful in Resolving Complicated Liquor Liability Death Case
Frank J. Szilagyi and Carrie M. Coulombe were successful in resolving a complicated Liquor Liability death case that also involved allegations of recklessness. The specifics of the resolution are subject to a confidentiality agreement.
Firm Successfully Resolves Trucking Accident Wrongful Death Case
Frank J. Szilagyi was successful in resolving a complicated wrongful death claim, brought in the United States District Court for the District of Connecticut, involving the collision between a tractor-trailer and a passenger vehicle that resulted in the death of the lone occupant of the passenger vehicle. The specifics of the resolution are subject to a confidentiality agreement.
Firm Successfully Overcomes Plaintiff’s Motion to Strike Special Defenses in Liquor Liability Case of First Impression
In a matter of first impression, our firm, representing the defendant, June’s Outback Pub in Michael Annunziata, Administrator of the Estate of Anthony Annunziata v. June’s Outback Pub, successfully defeated the plaintiff’s Motion to Strike our special defenses of contributory recklessness and assumption of risk. These defenses were made to plaintiff’s claim of reckless service of alcohol. The plaintiff claimed that the plaintiff’s decedent was recklessly served alcohol while intoxicated at June’s Outback Pub, before he crashed his motorcycle, resulting in his death. Suit was brought in Connecticut Superior Court for judicial district of Middletown at Middletown.
There currently is no appellate authority that addressed the availability of contributory recklessness or assumption of risk as defenses to a claim of reckless service of alcohol. The only reported Superior Court decisions that have addressed this subject are split and pertain to claims asserted by injured third parties. We are unaware of any other decisions addressing the validity of these defenses against claims asserted by the imbiber for his own injuries. In this case of first impression, we argued on behalf of the defense that the plaintiff’s decedent voluntarily and knowingly subjected himself to the well-known risks associated with riding a motorcycle while intoxicated. The plaintiff argued that contributory recklessness and assumption of risk are not valid defenses to a claim of reckless service of alcohol and should be stricken on public policy grounds.
After oral argument, the Honorable Lisa Morgan found that voluntarily riding a motorcycle at excessive speeds while intoxicated could be construed as wonton, willful or reckless conduct that increased the likelihood that the plaintiff’s decedent would be injured and die. Accordingly, the court denied the plaintiff’s Motion to Strike holding that contributory recklessness and assumption of risk may be asserted as a special defense by a purveyor of alcohol to a common law claim of reckless service of alcohol made by or on behalf of an intoxicated driver for his own injuries. Congratulations to Attorney i for her work on this matter.
Firm Successfully Argues for Keeping Performance Bond in Place
Our firm, on behalf of Mr. Murray Ostrager, successfully argued to the Town of Bolton to keep in place cash performance bonds posted pursuant to Connecticut General Statutes §8-25 in connection with improvements proposed as part of the Sperry’s Glen subdivision. The cash performance bonds were posted by the original owner, Mr. Frank Wood, before title to the property transferred to Mr. Murray Ostrager by virtue of foreclosure. After his passing, Mr. Wood’s heirs demanded the release of the bonds arguing that Mr. Wood would not be developing the property. Therefore, they argued the new developer should be required to post a bond. The Town of Bolton agreed with our position that there is no mandatory requirement that a successor developer be required to post a new bond. Posting a new bond is left to the discretion of the Town. In exercising its discretion, the Town of Bolton reasoned that the bonds should remain in place because the subdivision approval had not expired. Congratulations to Attorney Carrie M. Coulombe for her work on this matter.
Frank J. Szilagyi presents to a general session of the Primerus Defense Institute Convocation on the implications of the SMART Act
On April 27, 2013 Frank J. Szilagyi presented to a general session of the Primerus Defense Institute Convocation on the implication of the recent passage of the Strengthening Medicare and Repaying Taxpayers Act of 2011 (“SMART Act”). The Act becomes effective this year and simplifies the means by which claimant, plaintiffs, defendants and insurers are able to access and contest information provided by the Centers for Medicare and Medicaid Services regarding conditional payment reimbursement amounts. The SMART Act will make handling claims involving Medicare beneficiaries easier by providing timely, accurate and reliable information.
Firm Sponsors Joseph J. Cassidy Memorial 5K Road Race
Our firm sponsored a team to participate in the Hartford County Bar Foundation’s Joseph J. Cassidy Memorial 5K Road Race on May 4, 2013. Attorney Carrie M. Coulombe participated in the race.
Attorney Frank J. Szilagyi Attends Primerus Northeast Regional Meeting in New York City
On March 8, 2013, partner Frank J. Szilagyi attended the Primerus Northeast Regional meeting in New York City. At this meeting, Attorney Szilagyi networked with other Primerus members who work within the Northeast Region. The goal of the meeting was to build stronger relationships and discuss business development opportunities.
Frank J. Szilagyi Presents at Primerus Defense Institute Webinar Entitled “Transferring Risk in Premises Liability Cases”
Name partner Frank J. Szilagyi was one of the featured speakers at a webinar sponsored by the Primerus Defense Institute. The seminar took place on Jan. 29, 2013, and was entitled “Transferring Risk in Premises Liability Cases”. Szilagyi spoke on the subject of indemnification agreements and risk shifting strategies.
Firm Successfully Defends Plantiff’s Claim Of Breach Of Brokerage Agreement
Our firm, representing Kendall Homes, LLC as the defendant in the matter of New England Commercial Brokerage, Inc. v. Kendall Homes, LLC, successfully defeated the plaintiff’s claim of breach of a brokerage agreement. Suit was brought in Connecticut Superior Court, judicial district of Tolland at Rockville. The plaintiff claimed it earned a commission of nearly $40,000 for introducing the defendant to a prospective seller of land in Manchester, Connecticut. The defense argued that the plaintiff did not perform under the agreement was therefore earned no commission. After a bench trial before the Honorable Lawrence C. Klaczak, the judge found that there was no bad faith on the part of Kendall Homes, LLC and that the plaintiff failed to satisfy material conditions of the contract such that the brokerage commission clause of the contract between the parties was not triggered in plaintiff’s favor. Congratulations to Carrie M. Coulombe, Esq. on winning her first trial.
Firm Secures Judgment for City of Milford Police Officers
Our firm, representing the City of Milford, as well as several individual City of Milford police officers, all defendants in the case of Salatto v. City of Milford et al., successfully defeated the plaintiff’s claim of police misconduct. The litigation was filed in the United States District Court, District of Connecticut. The claim involved a §1983 claim in which the plaintiff claimed he was subjected to unreasonable search and seizure, false arrest, and malicious prosecution, violation of due process, and a failure to train claims. The firm argued that there the City and its police officers acted appropriately and within the law. The court agreed and granted summary judgment in the City and the officer’s favor on March 7, 2012.
Nurse Alleged Retaliatory Discharge for Whistleblowing
Connecticut General Statutes §31-51q “protects an employee from retaliatory discharge due to that employee’s exercise of certain enumerated rights, including, inter alia, the right to freedom of expression as guaranteed by the first amendment to the United States Constitution, and article first, §4, of the Connecticut constitution,” pursuant to Daley v. Aetna Life & Casualty Co., a 1999 decision of the Connecticut Supreme Court. The plaintiff, a nurse who provided home nursing care, allegedly observed poor nutrition, neglect and poor hygiene and reported violations to the Department of Public Health and was discharged, in retaliation. She alleged that her employer violated C.G.S. §31-51q. The defendant employer argued that the plaintiff failed to allege she was disciplined or discharged because of her exercise of constitutional rights. The plaintiff’s claim pursuant to §31-51q adequately alleged that “the plaintiff’s termination . . . was in retaliation for her exercise of such rights,” and the court denied the defendant’s motion to strike. The plaintiff’s complaint also alleged that the defendant reported her to the Department of Public Health and defamed her. The defendant moved to strike and argued the plaintiff failed to allege her reputation was injured. The plaintiff’s complaint adequately alleged she suffered humiliation and loss of income, because the defendant falsely reported she failed to meet nursing standards, and the court denied the motion to strike the defamation count. The defendant also moved to strike the plaintiff’s emotional-distress counts. The plaintiff’s complaint alleged that the defendant pre-dated a performance evaluation; falsely claimed the plaintiff refused to sign employee counseling reports that the plaintiff had never seen; issued false and defamatory statements about the plaintiff’s work to the Department of Public Health; and asked the plaintiff to recreate paperwork she had completed, as a condition of obtaining a paycheck, while withholding records required to do the paperwork properly. The plaintiff sufficiently alleged unreasonable conduct that led to emotional distress and that took place during the termination process. The court denied the motion to strike the negligent-infliction-of-emotional-distress count. A reasonable jury could find that these allegations, if proved, constituted extreme or outrageous conduct, and the court denied the motion to strike the intentional-infliction-of-emotional-distress count.
Court Dismisses Civil Rights Claim Against Police Officer
In a decision dated November 15, 2010, authored by United States District Court Judge Dorsey the court dismissed the plaintiff’s civil rights claim. The court held that allegations that a police officer falsely arrested an individual should be analyzed under the Fourth Amendment, as opposed to the 14th Amendment. In March 2007, the defendant, David Hancock, arrested the plaintiff, Christian Pierson, for allegedly violating restraining and protective orders, and engaging in threatening and harassing conduct. Allegedly, the defendant did not have an arrest warrant at the time of the arrest. Criminal charges were filed in August 2007. The plaintiff sued the defendant police officer, alleging false arrest, malicious prosecution and unreasonable bail bond, in violation of the Eighth and 14th Amendments of the U.S. Constitution. The defendant moved to dismiss. The plaintiff’s claim that the bail bond was unreasonable failed to describe the amount of the bail bond, the content of the police officer’s allegedly false report about his investigation of the plaintiff, and why the officer’s report was false. Allegations about unreasonable bail bond were conjectural, and the court dismissed the bail bond claim. The plaintiff’s claim that the defendant officer allegedly issued a false report about his investigation should be analyzed pursuant to the Fourth Amendment’s reasonableness standard, as opposed to the 14th Amendment’s substantive due-process approach. The plaintiff’s claim that the police officer’s report was false failed to adequately allege a claim, and the court granted the defendant’s motion to dismiss.
S&D Secures Judgment for City in Motorcycle Accident Claim
Our firm representing the City of Milford, a defendant in the case of Mills v. Sate of Connecticut, et. al., successfully defeated the claim. The litigation was filed in the Connecticut Superior Court in Milford. The claim involved a single motorcycle in an accident on North Street in Milford, Connecticut. The motorcyclist Willie Mills claimed the City’s conduct caused his accident and serious bodily injury. The firm argued that the City breached no obligation to the Plaintiff. The court agreed and granted summary judgment on June 8, 2010. The arguments were prepared by Carrie M. Dumas, Esq., with the assistance of Frank J. Szilagyi, Esq. Congratulations to Carrie M. Dumas, Esq. for her fine work for the City.
Suspect Bitten By Dog Claimed Local Cops Used Excessive Force
In a decision written by Judge Eginton, a judge sitting in the United States District Court for the District of Connecticut, released on Aug. 4, 2010, held that a municipality is legally responsible for depriving a citizen of the citizen’s rights under 42 United States Code §1983 when the government’s policy or custom inflicts injury for which the government is responsible. In July 2005, the defendant officer observed a car with parking lights on parked near the address of a known heroin dealer. Individuals inside the motor vehicle seemed to be slouching, to avoid detection. As the officer approached, he observed that one of the passengers, the defendant, Juan Gonzalez, had placed his hand inside the waistband of his pants, in an apparent attempt to hide contraband. The officer ordered Gonzalez to show his hands. The police officer who searched the Gonzalez found seven grams of cocaine. Gonzalez resisted attempts to handcuff him and fled, ignoring warnings about a police dog. The police dog caught the plaintiff, who struggled with the police dog and sustained dog-bite injuries. At the hospital, Gonzalez allegedly said that he had smoked angel dust and did not know what happened. The police charged Gonzalez with possession of crack cocaine with intent to sell and resist of arrest. Months later, officers observed the plaintiff and pulled over his motor vehicle. Allegedly, the plaintiff refused orders to exit, started the motor vehicle and pressed the accelerator. The motor-vehicle crashed on Interstate 95, and the plaintiff hid under an abandoned tractor-trailer. A police dog located the plaintiff. Police charged the plaintiff with escape, reckless endangerment and reckless driving. The plaintiff maintained he was subjected to cruel and unusual punishment in violation of the Eighth Amendment. The Eighth Amendment did not provide the plaintiff with a remedy for pre-conviction conduct. There was no evidence the plaintiff received inadequate medical care when he was in custody, in violation of the 14th Amendment. The plaintiff maintained the defendants used excessive force. Use of the police dog to find the plaintiff after the plaintiff fled was objectively reasonable. There was no evidence that a municipal policy or custom resulted in deliberate indifference to the plaintiff’s rights, in violation of 42 U.S.C. §1983. The court granted the defendants’ motion for summary judgment.
Allegedly Technician Gambled
Employees of the Mashantucket Pequot Gaming Enterprise who gamble at any time and in any way when they are working on duty at Foxwoods Casino can be discharged. The plaintiff employee, Mark Michalak, was assigned to work as a slot technician in an area of Foxwoods Casino known as casino number 3. Allegedly, the plaintiff left the assigned work area, without permission from his supervisor, went into casinos number 1 and 2 and, using a “non-cashable” ticket that permits slot technicians to discover whether slot machines function properly, played the slot machines and won “cashable” tickets, equivalent to cash. Supervisors observed that the plaintiff was away from his assigned work area. The Office of Inspector General investigated and found that the plaintiff employee gambled when he was on duty and misappropriated company property. The Mashantucket Pequot Gaming Enterprise discharged the plaintiff employee for allegedly leaving his assigned work area without permission, misappropriating funds and gambling. The plaintiff appealed. The Board of Review examined the surveillance videotape and found that the plaintiff violated the standards of conduct, which prohibit gambling and misappropriating company property. The chief executive officer also found that the plaintiff violated standards of conduct. The plaintiff appealed to the Mashantucket Pequot Tribal Court. The plaintiff was assigned to casino number 3. The videotape showed that the plaintiff left the assigned work area without contacting his supervisor and played the slot machines in casino numbers 1 and 2. The plaintiff’s supervisor testified that the machines that the plaintiff played in casino numbers 1 and 2 did not require repair. Evidence in the record supported the chief executive officer’s conclusions that the plaintiff left his assigned work area without permission, that he misappropriated company property and that he gambled. The plaintiff maintained that there was an unwritten company policy that slot technicians could generate “cashable” tickets and play them. His supervisor claimed that slot technicians were expected to return their “cashable” tickets. Substantial evidence supported the chief executive officer’s conclusion that any mitigating circumstances were insufficient to excuse the plaintiff’s conduct. The Mashantucket Pequot Tribal Court dismissed the plaintiff’s appeal.
Allegation Of Defective Design Insufficient to Allege Nuisance
A plaintiff who alleges that a municipality created a nuisance must allege that “positive conduct” of the municipality led to the nuisance. Plaintiff Richard Read went to a municipal transfer station and allegedly tripped and fell 10 feet into a movable dumpster. The plaintiff’s complaint alleged that the design of the transfer station was defective, because it did not include protective rails. The municipal defendants moved to strike and argued that the defective-highway statute provided the exclusive remedy and that individual defendants were entitled to governmental immunity. Earlier, the trial court found that the defective-highway statute provided the exclusive remedy and that the municipal transfer station did not qualify as a “defective highway.” The plaintiff appealed. In October 2008, the Connecticut Appellate Court partially reversed. On remand, the municipal defendants argued that the plaintiff failed to allege that the municipality’s “positive conduct” created the alleged nuisance. The plaintiff maintained that the design of the transfer station, which the municipality built, was defective, and that designing the transfer station qualified as “positive conduct.” The plaintiff failed to cite any court decisions that hold that defectively designing a municipal transfer station qualifies as “positive conduct.” The plaintiff fell because the walkway deteriorated. A reasonable factfinder could not find that the municipality’s “positive conduct” caused the dangerous condition that led to the plaintiff’s injuries. The court granted the municipality’s motion for summary judgment on the nuisance count. The plaintiff also claimed that the municipality possessed the duty to construct a protective railing, pursuant to C.G.S. §13a-111. The statute provides, “The party bound to maintain any bridge or highway shall erect and maintain a sufficient railing or fence on the sides of such bridge and on the sides of such parts of such road as are so made or raised above the ground as to be unsafe for travel.” The transfer station did not qualify as a “highway,” pursuant to C.G.S. §13a-111, and the court granted the defendants’ motion for summary judgment.
Connecticut Appelate Court applied the prior pending action doctrine
In a decision written by Judge Douglas Lavine, the Connecticut Appelate Court applied the prior pending action doctrine and dismissed the claim brought by the Plaintiff Zeliha Selimoglu.
Supreme Court precedent establishes that the prior pending action doctrine permits the court to dismiss a second case that raises issues currently pending before the court. The plaintiff Zeliha Selimoglu commenced an action against Maly Phimvongsa and Eastern Psychological Services, LLC, alleging that the plaintiff worked as a social work supervisor at the Department of Children and Families which hired the defendants to provide case management services. She contended that Phimvongsa brought a client, after hours, to an office area not meant for contact between department clients and caseworkers where the client attacked the plaintiff causing her severe personal and emotional injuries. The plaintiff alleged that Phimvongsa was negligent in her actions and Eastern was responsible under the doctrine of respondeat superior, for negligently training Phimvongsa and in failing to inform her of department protocol. Thereafter, the plaintiff brought a second action the first and second counts of which were identical to those in the first complaint. The third count differed only in that it added three allegations of Eastern’s negligence and two paragraphs concerning the plaintiff’s injuries and economic damages. The most notable difference between the two complaints was that there was a “Statement of [a] Licensed Professional Counselor” and a “Good Faith Certificate” attached to the second complaint. The trial court granted the defendant’s motion to dismiss the second complaint on the ground that the plaintiff had a prior pending action against the defendants involving identical factual allegations. The Appellate Court affirmed. The plaintiff unsuccessfully claimed that the prior pending action doctrine was not applicable because the two matters were dissimilar in that the second case sounds in medical malpractice, not negligence. She supported her contention by focusing on the attachments and that she labeled the claims differently on the respective summonses. However, the second complaint like the first was found to plead mere negligence, not medical malpractice. The second complaint did not mention a standard of care and the alleged negligence did not concern a medical diagnosis or treatment. Rather, it focused like the first complaint on Phimvongsa’s ignoring department protocol and Eastern’s failure to train Phimvongsa properly and to inform her of department regulations. The two actions were virtually alike as both sounded in negligence, were brought to adjudicate the same underlying rights based on the same set of facts.
Town entitled to Qualified Immunity
Town entitled to Qualified Immunity in ‘Kite Surfer’s’ death
In a decision dated Feb. 12, 2010, written by Judge Bryant of the United States District Court for the District of Connecticut the court held municipalities are immune from liability for negligence that arises from discretionary conduct. On an unusually warm winter’s day, the plaintiff’s decedent went “kite surfing” off of Long Beach in Stratford. Allegedly, there were no lifeguards, warnings signs or barricades. A kite surfing instructor expressed concern about the decedent’s newly purchased equipment. As the wind changed directions and began to blow away from shore, all of the surfers except the decedent and perhaps one other surfer returned to shore. The decedent and his kite fell into the water, about 300 feet from shore. The kite surfing instructor signaled that he should swim and called 911. The instructor called 911 three times and then called the Bridgeport police. At about 5 p.m., the U.S. Coast Guard dispatched rescue boats and the Stratford Fire Department sent a zodiac boat. The decedent’s last reported location was in the Housatonic River. The zodiac boat allegedly experienced motor difficulties at the mouth of the river. The plaintiff administratrix alleged the Coast Guard was distracted from rescuing the decedent when it rescued the zodiac. Rescuers found the decedent’s body the following day. The administratrix sued the Town of Stratford and its employees, alleging negligent failure to warn and negligent attempt to rescue. A municipality’s supply of emergency services to the public is discretionary. Qualified immunity barred negligence claims against firefighters. There was no evidence municipal defendants improved the beach area used for kite surfing. Any duty the municipality owed did not extend to dangers the decedent could be reasonably expected to discover. The risks of an extreme water sport in winter were obvious. Connecticut statutes do not require municipalities to post signs or to station lifeguards at public beaches during the winter. The Connecticut Siting Council, as opposed to the municipality, is responsible for telecommunication. The municipality was entitled to qualified immunity on claims of negligent failure to warn and to supply phone services. The alleged nuisance was the hazardous water, a naturally occurring condition. There was no evidence the municipality took positive action to create a nuisance. The court granted the municipality’s motion for summary judgment.
Police Report did not qualify as notice for purpose of C.G.S. § 13a-149
In a decision dated Feb. 26, 2010, written by Connecticut Superior Court Judge Lager the court held C.G.S. §13a-149 provides that no personal-injury suit “shall be maintained against any town . . . unless written notice of such injury and a general description of the same, and of the cause thereof and of the time and place of its occurrence, shall, within ninety days thereafter be given to a selectman or the clerk of such town.” The plaintiff, Julie Kilgoar, sued the defendant, David Miscio, alleging that he struck the plaintiff’s decedent, who was driving a motorcycle, in July 2007. The plaintiff also sued the Town of North Branford, because Miscio alleged that he was unable to see the plaintiff’s decedent, as a result of an overgrowth of trees and objects at the intersection. The municipality moved to dismiss and argued the plaintiff failed to supply notice that was timely and adequate. The plaintiff objected that a police report supplied the municipality with adequate notice. The police report was dated Oct. 17, 2007, which was more than 90 days after the motor vehicle accident. The plaintiff estate administrator failed to establish delivery to and actual receipt of notice by the municipal clerk within 90 days of the motor vehicle accident. The court granted the municipality’s motion to dismiss.
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