Monroe held liable for road conditions
By: Daniel Tepher
Connecticut Post-May 6th 1998
BRIDGEPORT-- Ghost hunters Ed and Lorraine Warren were awarded $300,000 from the town of Monroe for injuries Lorraine Warren suffered when she slipped on a patch of ice in front of her home more than five years ago.
Lorraine Warren clutched a small silver medal of ´Padre Pio’ in her right hand as the six Superior Court jurors filed into the jury box to deliver their verdict.
´He was there with us and told me everything would be all right,’ she confided late of the medal which depicts a priest who may Catholics in the 1960s and 70s believed was destined for sainthood. ´This was such an emotional thing for Ed and I.’
Added her husband: ´I am very happy justice prevailed and we had two very good lawyers.’
The jury deliberated about six hours before finding the town of Monroe negligent for failing to properly plow snow from the front of the Warrens’ home on Knollwood drive on Jan. 21, 1993
The amount of the verdict was double the damages claimed in their lawsuit.
During the weeklong trial, the Warrens’ lawyers, Arthur C. Laske III and Auden Grogins, argued that despite numerous calls from the Warrens, the town failed to remove a quantity of snow that blocked the street in front of their home a week after it had accumulated.
They related that at 7:30am on Jan 21, Lorraine Warren went out into the street to get to her mailbox when she slipped on an area of packed snow left in the roadway by the town. They said Warren fell onto the road, breaking her right hip. She was found lying in the street by neighbors and her husband and taken to the hospital. As a result of the fall, the lawyers said Warren had to undergo two hip replacements within the year and now suffers a 25 percent permanent disablitly of the right hip.
Both lawyers said the contradictory testimony of a Monroe police officer may have actually helped their case. They said Officer Mark Caulfield testified Lorraine Warren told him at the scene that she had actually fallen in her driveway but had dragged herself the 10 feet into the street out of concern that the emergency personnel would have to drive into her icy driveway.
However, Ed Warren, who claimed a loss of consortium as a result of his wife’s injuries, testified Caulfield didn’t speak to his wife at the scene. ´He just spoke to me and then left,’ he said.
Phillip VonKuhn, who represented the town, was unavailable for comment.
Peters' Third Way
In a landmark welfare case, the chief justice charts a tricky course between constitutional rights and legislative decision.
By: Elaine Song
Connecticut Law Tribune, July 26, 1995
The Supreme Court last week issued three opinions on whether the Constitution guarantees a right to maintain minimal subsistence. The four-justices majority in Moore vs. Ganim upheld the status quo, declaring no such right exists. Dissenting Justices Robert I. Berdon and Joette Katz went the opposite direction, finding a governmental obligation to provide for the poor. But the courts leading scholar—Justice Chief Ellen A. Peters---served up the most surprises in a strongly worded concurrence that makes the case not only for a right to subsistence but for recognition of unremunerated rights during challenging times.
“Contrary to the view of the majority, I am persuaded that the Connecticut constitution includes a governmental obligation to provide a minimal safety net to our poorest residents,” Peters writes in her concurrence. Still Peters joined the majority in upholding the welfare statute at issue, saying the Legislature has wide discretion in defining the way government carries out its responsibility.
The minimum subsistence levels at issue in Moore vs. Ganim and a companion case, Hilton vs. New Haven, were welfare payments and shelter, respectively. The plaintiffs in Moore challenged a state law that allowed municipalities to cut off general-assistance payments after nine months. Hilton plaintiffs sued New Haven over its decision to close a homeless shelter.
Justice Flemming L. Norcott wrote the majority opinions in both cases. Joining him were justices David M. Borden, Robert J. Callahan and Richard N. Palmer. The majority found no court precedent for an implicit right to subsistence in Connecticut, federal or sister state courts. It also rejected the crux of the plaintiff’s argument, that the right is rooted in centuries of Connecticut history and in the text of the state Constitution itself.
Although she is disappointed with the outcome, Amy Eppler-Epstein, plaintiffs’ lawyer in Hilton, says Peters’ opinion offers some hope. On the constitutional question, at least, the decision becomes 4-3 rather than 5-2 says Eppler-Epstein, of the New Haven Legal Assistance Association.
“Anything she writes is bound to have influence,” says Martin B. Margulies, constitution law professor at Quinnipiac College School of Law.
All parties expected Peters to play a critical role due to the interest she showed in the case. “ We thought she was kind of a moving force in it,” says Arthur C. Laske III, a Bridgeport City Attorney who successfully argued Moore vs. Ganim.
Laske says Peters’ finding on unemnumerated rights—particularly her willingness to find an affirmative governmental obligation to take care of poor people—is significant. He says it could open the door to claims seeking to establish other government obligations.
At the same time, Laske says, the decision keeps welfare reform right where it belongs: in the Legislature. “I thought it would have been kind of a stretch for the court” to find a constitutional right to subsistence, he says.
The ruling comes as legislative welfare reform efforts intensify in Connecticut and throughout the country. This year, the Legislature cut welfare benefits further, reducing monthly payments and limiting their duration, availability and the possibility of extensions.
Attorney General Richard Bluementhal, who represented the state in both cases, says: “I’m very pleased with the decision because it vindicates no only our legal position but also welfare reform efforts that are so critical to the state and nation.”
But Steven R. Burg, an attorney with Connecticut Legal Services in Bridgeport who represented the Moore plaintiffs think Peters’ reasoning on the right to subsistence “will carry persuasive power in the legislature.”
Nine months and you’re out
Both cases came to the court through expedited appeals. The Moore plaintiffs were Bridgeport residents affected by a 1992 state law that allowed the city welfare department to cut them off from general assistance after nine months. That means they received no cash payments but continued to get food stamps and medical benefits. Their ineligibility lasted for three months, after which time they could reapply.
General assistance, funded mainly by the state and administered by the towns, is the welfare program for able bodied adults. It’s separate from the much larger Aid to Families with Dependant Children Program, the target of this years legislative cuts. The 1992 law sprang from an interagency task force setup by then Gov. Lowell P. Weiker Jr. to improve the welfare system. Its purpose, as stated during trial testimony, was to turn welfare into a more temporary program by providing people with incentives to find employment.
Previously, state law set no time limit on benefits. The 1992 law gives towns and cities options to extend payments. The state pays 80% of benefits and the towns pick up the rest. Bridgeport began enforcing the nine month deadline in March 1994, and five plaintiffs sued the city and its mayor, Joseph D. Ganim.
Superior Court Judge Christine F. Vertefeuille granted a temporary restraining order, after which the state successfully intervened as a defendant. Following a hearing at which witnesses testified that they would no be able to afford housing without state support, Vertefeuille denied a request for permanent injunction. She found that the plaintiffs failed to prove a likelihood of success on their claim that the state has a constitutional obligation to provide subsistence benefits.
The Hilton action dates to 1989, when New Haven decided to shut down an emergency homeless shelter that provided additional housing when other city shelters were full. After several homeless people sued, then New Haven Superior Court Judge Anthony DeMayo ordered the city to develop a long term plan for housing homeless people.
For two and a half years, the court rejected the city’s proposals. Then in 1992 the city asked DeMayo to reconsider his order in light of a new general assistance statute---which, in addition to establishing the nine month welfare limit, also narrowed the obligation of towns and cities to provide emergency shelter.
The plaintiff’s argued that the law violated their fundamental right to shelter under the constitution. DeMayo rejected that contention and the plaintiff’s appealed.
In Search of Implicit Rights
As novel as the claims were, the Supreme Court gave them serious consideration, consolidating the cases and holding two en banc sessions of argument last year. In certain ways, the cases pose familiar questions: Does a constitutional right exist when it isn’t specified in the document itself? Does the constitution change with time? Can the framers’ intent be determined with certainty, and if so, how much certainty is needed?
The difference between Peters’ concurrence and Norcott’s majority opinion highlight the varied perspectives on those questions.
The plaintiff’s argued that the authority for a constitutional right dates before the 1818 Connecticut Constitution, when several statutes mandated that municipalities care for poor people. The constitution incorporated those statutorily defined rights the plaintiffs contended.
They look to the constitution’s preamble, which states as its purpose: “more effectually to define, secure and perpetuate the liberties, rights and priveledges which[ the people] have derived from their ancestors.”
The plaintiffs also cited Article First, § 1, which states: “All men, when they form a social compact, are equal in rights….”
Berdon, in dissent, finds clear support for a right to subsistence in both provisions. But, like Peters, he finds the state can set reasonable conditions on carrying out its obligations.
Much of the debate within the court was over how to determine when an implicit right exists. Norcott limits unenumerated rights to those that relate in the due process guarentee, such as the rights against cruel and unusual punishment and against double jeopardy. Neither is enumerated, but both are constitutional rights.
Peters disagrees with Norcott’s limits. She says protections against cruel and unusual punishments and double jeopardy became due process rights only in the 2nd half of the 20th century. The cases that recognized those rights neither include nor exclude additional unenumerated rights—whether they arise from due process guarantees or other constitutional provisions—she reasons.
“Instead, the case law in this state has subscribed to a broader proposition—that the framers did not intend our written constitution to be an all encompassing exhaustive enumeration of individual rights,” Peters writes.
Peters calls for more openness to unenumerated rights based on the state’s “unique constitutional history,” demonstrated by the fact that Connecticut was among the last of colonies to adopt a constitution. Peters contends that the framework of the government was already in place before 1818, and therefore the need for a constitution to formalize rights was not as pressing. In addition, Peters looks for support to the theory, espoused by the US supreme Court as early as McCullough vs. Maryland in 1819, that a constitution endures for ages and must adapt to changing times.
Affirmative Obligations
A second difference between Norcott and the chief justice is that Norcott distinguishes between a right that imposes an affirmative governmental obligation an a right that protects people from government interference.
“We are especially hesitant to read into the constitution unenumerated governmental obligations,” Norcott writes. “In general, the declaration of rights in our state constitution was implemented not to impose affirmative obligations on the government, but rather to secure individual liberties against direct infringement through state action.”
Any so-called affirmative obligations are clearly enumerated, as, for instance, the right to public education and the right to be free of discrimination, Norcott writes. But no constitutional amendment gives special protections to the indigent, he notes. “Such omissions suggest that the framers of our state constitution did not intend to constitutionalize Connecticut’s policy of supporting it’s indigent.”
Again, Peters disagrees. When the 1965 constitutional convention added a second on the right to education, it was merely making explicit what had been implicit in the 1818 document, she writes. The 1965 delegates could have enumerated other implicit rights as well, she says.
“The 1965 reenactment of the 1818 constitution, with only minor changes, therefore, must be read to preserve the earlier framers’ understanding that the constitution was not all inclusive document,” Peters writes.
More important, Peters writes, under the theory that the constitution adapts itself to changing times, affirmative rights are as important as negative rights…
…But Blumenthal and Laske, the Bridgeport Assistant attorney say a decision in the plaintiff’s favor would deluge the court system with questions over every minute issue. “The court would really have to micro-manage welfare,” Laske says.
Peters addresses that question in her concurrence, stating that she would allow court intevention only in extreme cases, where severe deprivation would occur.
Although Peters’ standard isn’t law, court action weighs heavily on the minds of lawyers who see new welfare cuts as having harsh effects on poor people, including children. Solomon says a challenge is afoot to fend off new measures scheduled to take effect in July.
“Welfare reform is going to be litigated,” Solomon says. “That’s a promise.”
Solos Connect With Contract Lawyers
Solo and small-firm practitioners stay competitive in a tough market by using co-counsel arrangements
By: Elaine Song
Connecticut Law Tribune, July 26, 1995
For solo and small firm practicioners, co-counsel arrangements can be the next best thing to working in a full service firm and having a host of specialists on the same floor. But that's not the only alternative to going it alone.
Whether it’s relying it on colleagues for referrals or contracting other attorneys when they’re too swamped to do minor chores themselves, many solos have learned that they can be part of a team of sorts, without having the headaches that come with being a part of a large outfit.
Trumbull solo Arthur C. Laske III, for one, has joint ventures with other small firm lawyers to thank for a substantial portion of his income. “Probably half of my practice is contract lawyering for other attorneys,” says Laske, who has been on his own since leaving Southport’s Marsh, Day and Calhoun in 1993.
A trial lawyer who handles just about any kind of litigation except family matters, Laske says his frequent co-counsel assignments come in about two ways. Either he'll get a call from a nonlitigator wanting him to handle a case from the get-go or he'll be asked to step in before a case goes to trial by an attorney in need of his courtroom expertise.
The latter assignments, says Laske, have been pouring in lately because of a growing resistance among some insurers to settle claims for a reasonable price. (see suffering Backlash from Whiplash-The Connecticut Law Tribune Dec 22, 1997, p1). The extent of the assigning lawyer's involvement in a matter varies. Some {attorneys} don't want to hear about the case until it's over, Laske says. But others will stay closely involved and sit in during the trial. “We may split up jury selection,” he says. Or he'll handle opening arguments and his co-counsel will take over on closing remarks.
A lot of attorneys look at it as a learning experience, one that comes without the risk of being the lead attorney at trial, Laske says. When it comes time to his getting paid, the amount depends on the other attorney's involvement. If they remained actively involved in the case through trial, Laske says they are likely to earn more than he does. But if they bow out way before the case gets to trial, it's Laske who may get the lion's share of the proceeds, he says. But there are no generalizations, he notes, when it comes to splitting up fees.
Dismissal of Teacher's Wrongful Death Suit Upheld
By: Daniel Tepfer
Connecticut Post—January 31, 2003
HARTFORD-- The State Appellate Court has upheld the dismissal of a lawsuit by a former city official and teacher who claimed he was wrongfully arrested by Bridgeport police on charges of assaulting students.
The appeals court ruled that the former teacher, Leonard L. Crone, had not presented sufficient evidence to prove his contention that city officials had conspired against him because of his earlier political work.
“Justice doesn’t always work, but that’s our system,” commented Crone, who retired from the Bridgeport school system two years ago. “We thought we had a good case.”
Following the court victory, Crone filed a lawsuit against then Supt. of Schools James Connelly, former police chief Thomas Sweeney and the two police detectives responsible for his arrest.
He claimed they violated his constitutional rights---Connelly, by suspending him, and the police, by arresting him without probable cause.
And Crone, who had previously served as city clerk and ran for mayor; claimed his arrest was payback for his political activities.
The case went to trial in July 2001. Crone testified that when he ran for mayor 13 years earlier, during that campaign he had been critical of Connelly as superintendent.
In addition, he said, while he was city clerk Connelly had inquired whether there was anything improper about Crone holding that position while he was also working as a full time teacher. Crone testified that he believed the incidents were the basis for Connelly’s investigation of the student’s complaints.
But Sweeney and the two police officers said they never talked to Connelly about any prior incidents with Crone.
The Superior Court jury dead-locked 4 to 2 on a verdict. Judge Edward F. Stodolink then granted a motion dismissing the case.
Stodolink ruled that the police officals did not have probable cause for Crone’s arrest and that no evidence was presented showing the officers acted with malice in arresting him or that Crone suffered severe harm from the arrest.
“Judge Stodolink based his decision on evidence in the case; Mr. Connelly and the other defendants did nothing but their jobs to protect the children of the City of Bridgeport,” added Arthur C. Laske III, who represented Connelly.
Cities, Tort Lawyers Clash Over Municipal Immunity
Supreme Court left to decide meaning of legislative silence
By: Thomas B. Scheffey
Connecticut Law Tribune December 9, 2002
Two powerful adversaries thundered before the state Supreme Court Dec. 4---debating the meaning of silence.
Attorneys for Connecticut cities and lawyers who represent tort plaintiffs have diametrically opposing views on whether a 1987 law creates a right to directly sue municipalities for negligence. Trumbull advocate Arthur C. Laske III, representing the City of Bridgeport, showcased 142 pages of legislative debate. The fact that they never referenced a change from common law immunity, he said, was evidence law makers never contemplated direct suits against towns and cities for passing the act that became C.G.S. § 52-557n.
But Karen E. Souza, representing a child injured due to an uncapped fire hydrant, contended that the state’s language is clear on its face when it states “ [A] political subdivison of the state shall be liable for damages to person or property caused by…[t]he negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties…”
Souza, in the New Haven law firm of Alan E. Silver, cited a handful of Superior Court decisions that held this language permits direct negligence actions against cities and towns. She argued that the lawmakers’ silence over the decade since these decisions began is evidence they liked the way courts were interpreting the act.
Laske contended the statute was a mess from the start. He cited complaints from lawmakers and courts that they’ve always been unclear about the real meaning of C.G.S § 52-557n, passed in the confusion and stress of late night legislative debate. The contentious 1986 tort reform debate, Laske said, was silent on the topic of eliminating traditional municipal immunity.
But for one justice, at least, such silence cuts both ways. “How does the legislative history help you? How do you conclude that silence is on your side?” quizzed high court newcomer, Peter T. Zarella. Laske responded that, if the 1986 statute was intended to permit suits against cities without “naming a municipal actor” as an individual defendant or to create vicarious liability for negligent city employess, it would have sparked a huge debate.
The Connecticut Council of Municipalities and the Connecticut Trial Lawyers Association both would have spurred their allies in the legislature to champion their views, Laske maintained. Both of these groups, he noted, have filed friend-of-the—court briefs in the present case, Spears vs. Garcia.
In Laske’s analysis, a key phrase in the statute is the savings clause, “except as otherwise provided by law.” It requires courts to consider two other statutes that cover municipalities’ duty to indemnify city employees found negligent in the discharge of a non-discretionary duty. The municipal employees’ indemnification statute (C.G.S § 7-465) and the firefighters’ indemnifications statute (C.G.S. § 7-308) are meant to lighten the liability burden that cites shoulder, and must be read together with 52-557, Laske argued.
That’s exactly the opposite of what Connecticut plaintiffs’ lawyers want. In the amicus brief filed by the CTLA, Kathryn Caliby and Douglas W. Hammond, of Hartford’s RisCassi and Davis, argue that it would enhance “judicial economy” if plaintiff’s did not have to name specific municipal employees as defendants. It would also avoid cumbersome situations where a large number of employees have to be sued to place blame.
Zarella’s repeated questioning of Laske focused on whether ambiguity existed: “I’m trying to figure out what’s unclear about the statute.”
Laske contented that the appellate Court’s holding, that 52-557 allows a direct negligence case against a city, “creates a complete end run around what has always existed.” But Souza, arguing the plaintiff’s position, said the appellate court was right to avoid an analysis of the legislative history behind the statute since it is clear on its face.
Justice Joette Katz noted that suing a city without an individual defendant makes it harder for a plaintiff to trace the elements of negligence, “but there’s no prejudice to the defendant by the fact that you haven’t named a particular employee?”
Laske in rebuttal, noted that former Justice Robert I Berdon, in his dissent in the 1989 supreme court case of Williams v. New Haven, stated that 52-557 allows direct suits for negligence against cities. Laske also noted that the municipal immunity is an obsolete in the eyes of late tort scholar William H. Prosser and the American Law Institute model laws. “If change could come, might come, but let it come properly,” concluded Laske, not by court decision, but through legislature.