Lynn Roberson, Administratrix et al. v. Lili Khorsandi et al. (2013)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (No. 102)

The Motion For Summary Judgment now before the Court presents issues concerning the proper construction of Conn. Gen.Stat. § 8–67.   That statute provides that,

Any person injured in person or property within boundaries of property owned or controlled by an authority, for which injury such authority is or may be liable, may bring an action within two years after the cause of action therefore arose to recover damages from such authority, provided written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the chairman or secretary of the authority within six months after the cause of action therefore arose.

The cause of action in this case arose from a tragic fire in New Haven on March 9, 2011.   Three persons died in the fire:  Jaqueeta Roberson, Wanda Roberson, and Quayshaun Roberson.   Two minor children—Quayvon Roberson and Brentell Roberson—survived the fire but suffered the emotional shock of watching their family members burn to death.  (To avoid confusion, the Robersons will be referred to by their first names.)

On February 15, the named plaintiff, Lynn Roberson—the Administratrix of the estates of Jaqueeta, Wanda, and Quayshaun—commenced this action against three defendants:  the named defendant, Lili Khorsandi, the Robersons' landlord;  the Housing Authority of the City of New Haven (“Authority”);  and Joseph Cappucci, the Fire Marshall of the City of New Haven.   Lynn's complaint consists of fifteen counts, but only Counts Six to Ten—all against the Authority—are involved here.   Those counts essentially allege that the Authority failed to maintain smoke detectors in the building in question.   Counts Six, Seven, and Eight are wrongful death actions brought pursuant to Conn. Gen.Stat. § 52–555.   Counts Nine and Ten claim bystander emotional distress on behalf of the surviving minor children.

On April 2, 2013, the Authority filed the Motion For Summary Judgment now before the Court.   The Motion contends that judgment should enter on Counts Six through Ten because the six-month written notice provision of § 8–67 was not complied with.   The plaintiffs admit that they did not provide the Authority with written notice within six months but contend that they were not required to do so because their causes of action—wrongful death and bystander emotional distress—are not actions for injury to “person or property” within the statute.   The Motion was argued on November 25, 2013.

The respective actions for wrongful death and for bystander emotional distress must be considered separately.

Counts Six, Seven, and Eight are wrongful death actions.   These are statutory actions, brought pursuant to Conn. Gen.Stat. § 52–555.  “These actions come within the scope of § 8–67 only if they are actions brought by persons injured in person or property.”  Greco v. United Technologies Corp., 277 Conn. 337, 890 A.2d 337 (2006), is persuasive authority that they are not.

Greco holds that statutory wrongful death actions are not actions “to recover damages for personal injury or property damage” within the scope of Conn. Gen.Stat. § 52–577c(b), establishing a two-year statute of limitation for actions of this description seeking damages caused by exposure to hazardous chemical substances or pollutants.   The Greco court explains that, “[a]lthough the legislature reasonably could have equated personal injury and wrongful death for statute of limitations purposes, the language of the relevant statutory provisions belies [the] claim [of such intent].”  277 Conn., at 350.  (Emphasis in original.)   It points out that, “when the legislature wishes to treat personal injury and wrongful death actions in the same manner, the legislature has done so expressly.”  Id., at 351.   See, e.g., Conn. Gen.Stat. § 52–114.  (“In any action to recover damages for negligently causing the death of a person, or for negligently causing personal injury or property damage, it shall be resumed that such person whose death was caused or who was injured or who suffered property damage was, at the time of the commission of the alleged negligent act or acts, in the exercise of reasonable care.”)  (Emphasis added.)

Greco 's reasoning is persuasive here.   The Authority's argument that Greco's reasoning is confined to statute of limitations cases is plainly inappropriate, since Greco cites many statutes having nothing to do with the statue of limitations in its reasoning.  277 Conn., at 351.   The court's task is to fairly construe § 8–67, not to rewrite it.   If the legislature had intended to include wrongful death actions within the ambit of § 8–67, it could have done so.   It did not.  Sec. 8–67 does not apply to wrongful death actions.   Consequently, judgment cannot enter on Counts Six, Seven, and Eight on the ground asserted by the Authority.

The bystander emotional distress actions asserted in Counts Nine and Ten present distinct issues of law and fact.   These are unquestionably common-law actions for negligence.   The plaintiffs' initial argument that they are nevertheless not actions by persons “injured in person or property” is unpersuasive.

The parties agree that the phrase “injured in person or in property” set forth in § 8–67 has not been construed by the reviewing courts of our State.   There is, however, helpful precedent construing analogous language in the Workers' Compensation Act. Conn. Gen.Stat. §§ 31–275 et seq.   Prior to 1993, the Act applied to “personal injury” sustained in the course of employment.   Conn. Gen.Stat. § 31–275(8) (1991) provided that the terms “personal injury” and “injury” included both “accidental injury which may be definitely located as to the time when and the place where the accident occurred” and “an injury to an employee which is causally connected with his employment and is the direct result of repetitive trauma or repetitive acts incident to such employment.”   In Crociere v. Board of Education, 227 Conn. 333, 630 A.2d 1027 (1993), the Supreme Court construed the terms “personal injury” and “injury” broadly, holding that “mental disorders, even if not accompanied by physical trauma to the body, constitute an injury under the act.”  Id., at 363.

Following Crociere, the legislature amended the definitional statute.   Sec. 31–275(16)(B)(ii) now provides that, with certain exceptions, the terms “personal injury” and “injury” do not include “[a] mental or emotional impairment.”   In Biasetti v. City of Stamford, 250 Conn. 65, 735 A.2d 321 (1999), the Supreme Court acknowledged that “the plain language of the statute” now excludes coverage of purely “mental” injury.”  Id., at 79.   It is evident from this analogy that when the legislature wishes to specifically exclude mental or emotional injury from the broader category of “personal injury,” it knows how to do so.

The bystander emotional distress actions asserted in Counts Nine and Ten are thus actions brought by “person[s] injured in person or property” within the meaning of § 8–67.   That is not, however, the end of the matter.  Sec 8–67 applies only to injuries suffered “within boundaries owned or controlled by an authority.”   It is common ground that the claimed injuries did not occur on property owned by the Authority.   The issue of “control” is, however, considerably more contentious.   The parties have relied entirely on abstract legal arguments in litigating this point.   Neither party has submitted any affidavits or other documents describing the degree of control, if any, that the Authority had with respect to the subject property.

The Authority has not admitted control of any sort.   Its argument is syllogistic.   If, hypothetically, it did have control, § 8–67 applies, and the bystander plaintiffs are out of luck.   If, on the other hand, it did not have control, the bystander plaintiffs have no underlying cause of action.

The bystander plaintiffs present a somewhat different logical argument.   While—like the Authority—they decline to present evidence concerning the extent to which the Authority controlled the subject property, they argue that a finding of lack of control would not necessarily deprive them of a cause of action.   Their theory is that the Authority had a duty to them based on its responsibility to inspect privately owned premises used to house Section 8 tenants.   If the premises are deficient, the Authority has the responsibility to move the tenants to other housing.   This does not compel the property owner to correct the deficiencies.   The property owner is free to do as it wishes, albeit with other tenants.   Consequently, in the bystander plaintiffs' view, they can have a cause of action against the Authority even in the absence of “control” of the subject premises.

It would be inappropriate to attempt to resolve these novel and important questions in the context of the Motion now before the court.   As mentioned, neither party has submitted evidence concerning the degree of “control,” if any, exercised by the Authority.   The arguments have, rather been abstract propositions of law.   This is undoubtedly related to the fact that, as counsel have informed the court, discovery is incomplete.   Moreover, the issue of liability in the absence of “control” is not even formally presented by the Motion itself.   The Motion centers on the absence of written notice.   The issue of whether liability can exist in the absence of “control” evolved during the course of the parties' arguments and has not been adequately briefed by either side.

In these circumstances the court declines to issue what would be, in effect, an advisory opinion.   If the matter is to be decided on summary judgment, it must be in the context of an appropriate submission of evidence;  P.B. § 17–46;  followed by an adequate briefing of the issues actually raised by the evidence.

For the reasons set forth above, the Motion For Summary Judgment is denied.   The denial as to Counts Nine and Ten is without prejudice.

Jon C. Blue

Judge of the Superior Court

Blue, Jon C., J.