Susan Behan v. Sonitrol Corporation et al. (2014)

MEMORANDUM OF DECISION RE MOTIONS FOR SUMMARY JUDGMENT Defendant Comcast's Motion for Summary Judgment (# 191 in Docket No. CV 09–5031971, Plaintiff's Objection # 209, Comcast's Reply # 219;  # 151 in Docket No. CV11–6019178, Plaintiff's Objection, # 171, Comcast's Reply # 187) Defendant AM Broadband's Motion for Summary Judgment (# 178 in Docket No. CV–11–6019178;  Plaintiff's Objection # 180)

I. BACKGROUND

In these consolidated actions the plaintiff, Susan Behan, brings claims against the defendants Comcast of Connecticut, Inc., Sonitrol Communications Corp., a.k.a. Sonitrol of Hartford, and AM Broadband, LLC. The complaints allege various claims stemming from a fire that destroyed the plaintiff's home and the personal property therein.   The plaintiff claims that the defendant Sonitrol Communications Corporation, a.k.a. Sonitrol of Hartford, provided fire alarm equipment and monitoring service to the plaintiff's home which would dispatch the proper emergency personnel to her home.   The plaintiff claims that Comcast of Connecticut, Inc. provided the plaintiff telephone service at the time of the fire and that the fire detection system installed in her home would transmit a signal through the telephone equipment causing the dispatch of the proper authorities in the event of a fire.   The plaintiff claims that such system was not working properly at the time of the fire because of the conduct of Comcast and its subcontractor, AM Broadband, LLC. The plaintiff claims that the damages caused by the fire could have been prevented if the smoke/heat and fire alarm system had been able to transmit the proper signal and was functioning properly.   The plaintiff makes claims of negligence (Eleventh Count), negligent misrepresentation (Twelfth Count), breach of contract (Thirteenth Count), fraudulent misrepresentation (Fourteenth Count), recklessness (Fifteenth Count), and CUTPA (Sixteenth Count), against Comcast.   The plaintiff makes claims of negligence (Seventeenth Count), negligent misrepresentation (Eighteenth Count), third-party beneficiary (Nineteenth Count), fraudulent misrepresentation (Twentieth Count), and recklessness (Twenty–First Count).

Comcast and AM Broadband have moved for summary judgment on all counts of the plaintiff's complaint in both actions directed to them.   The parties submitted memoranda in support of their positions and oral argument on the motions was heard by the court on November 12, 2013.

II. DISCUSSION

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party ․ The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law.   In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact ․ but rather to determine whether any such issues exist ․ The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ․ Once the moving party has met its burden [of production] ․ the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ [I]t [is] incumbent [on] the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists ․ The presence ․ of an alleged adverse claim is not sufficient to defeat a motion for summary judgment.”  (Citation and internal quotation marks omitted.)   The Episcopal Church v. Gauss, 302 Conn. 408, 421–2 (2011).

It is undisputed that the cause of the fire, the time and duration of the fire, are all unknown.   It is also undisputed that there is no fire hydrant near the plaintiff's home and that in order to fight a fire at that location, the fire department must pump water from a pond a mile away into a tanker truck for delivery to the residence.   It is also undisputed that on the day of the fire, Sonitrol did not receive any signal from the plaintiff's home.

A. Causation

Comcast and AM Broadband claim that they are entitled to summary judgment because there is no genuine issue of material fact that the plaintiff cannot prove a prima facie case because she cannot prove that any alleged breach of duty by the defendants was the cause of her alleged damages.   The defendants claim that the plaintiff cannot establish that if the smoke alarm had been properly operating, and the signal had been properly transmitted through the phone system to the monitoring company, her damages would have been in any way reduced or diminished.

The Supreme Court in Rawls v. Progressive Northern Insurance Company, 310 Conn. 768, 776–7 (2014), recently reiterated the principles applicable.  “In order to make out a prima facie case of negligence, the plaintiff must submit evidence that, if credited, is sufficient to establish duty, breach of duty, causation, and actual injury ․ A defendant's duty and breach of duty is measured by a reasonable care standard, which is the care [that] a reasonably prudent person would use under the circumstances ․ After the plaintiff establishes that the defendant did not exercise reasonable care, the plaintiff has the burden of proving that the defendant's negligence caused the plaintiff's injuries.   To do so, the plaintiff first must establish causation in fact, that is, that the injury would not have occurred but for the actor's conduct ․ The plaintiff then must show proximate cause ․ Proximate cause requires that the defendant's conduct [was] a substantial factor in bringing about the plaintiff's injuries and that there was an unbroken sequence of events that tied [the plaintiff's] injuries to the [defendant's conduct] ․ Proximate cause does not require the plaintiff to remove from the realm of possibility all other potential causes of the accident ․ Instead, the plaintiff must establish that it is more likely than not that the cause on which the plaintiff relies was in fact a proximate cause of the accident ․ The more likely than not standard ensures that the causal connection ․ [is] based [on] more than conjecture and surmise.”  (Internal quotation marks and citations omitted.)

The defendants cite Vastola v. Connecticut Protective System, Inc., 133 Conn. 18 (1946).   There the defendant had installed a burglar system in the plaintiff's restaurant premises.   Burglars were able to enter the premises and burglarize the property without setting off the alarm.   The plaintiff sued the alarm company to recover the money stolen from the restaurant.   The trial court concluded that the defendant was negligent in the installation of the system and that its negligence was a substantial factor in causing the loss sustained by the plaintiff.   The Supreme Court reversed.   It held that:  “The question is not whether there could be a causal relationship between the failure of the bell to ring, caused by the defendant's negligence, and the burglary, which directly caused the loss, but whether the meager facts found in this particular case reasonably support an inference that the defendant's negligence was a proximate cause of the loss by burglary.   The plaintiff was bound to remove the issue of proximate cause from the realm of speculation by establishing facts affording a logical basis for the inferences which he claims ․ The inferences which might be drawn from the facts contained in this finding are highly speculative.   It is a reasonable inference that someone would have heard the bell if it had rung.   Beyond that, it cannot be known what would have happened.   We may speculate whether the hearer would have known that it was a burglar alarm, whether he would have ventured to interfere, whether he would have succeeded in frightening away the intruder in time to prevent the larceny, and whether he would have summoned the police in time to capture or frighten away the burglar.   There is no finding that there were people in the street at this early morning hour, that there was a police officer on patrol in the neighborhood, or that there was a police station in the vicinity.   We conclude that for the court to have found proximate cause upon the facts contained in the finding would be to find it upon no more substantial basis than a surmise or conjecture.   This the law will not permit ․ The defendant's undertaking was to install a proper burglar alarm system which would, under the circumstances of this case, cause a bell over the entrance door to ring.   It did not agree to afford further protection.   In Nirdlinger v. American District Telegraph Co., 245 Pa. 453, 91 A. 883, a similar action for damages caused by the defendant's negligence, the defendant undertook to equip the plaintiff's house with a burglar alarm and to protect it from burglarious entry by the dispatch of guards thereto when warned by automatic signals.   One of the issues discussed is whether a ringing of the alarm would have prevented the loss.   The court said (p. 460):  ‘But this is pure speculation.   Whether that would have been the result had the apparatus been in working order can never be known.   It would depend upon contingencies without number, any one of which would have been sufficient to disappoint it.   Certainly there is nothing in the case from which a legal inference could be derived that the loss would have been averted had the electrical alarm been in order.’  “ (Citations omitted.)   Id., pp. 20–22.

Similarly here, the defendants claim that since no one knows how the fire started, when it started, where it started in the home, and even if the smoke alarm was operational, any conclusion that the proper operation of the alarm system would have reduced in any way the plaintiff's damages is extremely speculative.

In opposition to the motions, the plaintiff cites the opinion of Peter Chen. In his affidavit he states that he is a senior engineer.   Based on his investigation he concludes that:  1) the fire area of origin was the first floor living room at the northeast corner of the structure;  2) even with a singular smoke alarm placed at a location furthest from the origin of the fire, smoke would have taken approximately two minutes to sound the Sonitrol smoke alarm thereby sending a signal to Sonitrol;  3) it would have taken a maximum of approximately 8 minutes for the fire department to arrive and begin fire suppression efforts if at least a singular smoke alarm had been connected to the Sonitrol System and control panel;  and 4) based upon the foregoing, the fire would have been contained to certain areas of the house and certain other areas of the property would not have been consumed by fire.

The plaintiff also submitted the affidavit of Jeffrey Zwrin.   Zwrin has extensive experience and certificates in the field of security and fire alarm systems.   He opines that there is no evidence that the alarm system was non-functional prior to the time that the plaintiff's telephone service was switched from AT & T to Comcast.   He also opines that, based upon his review of Chen's affidavit, the fire alarm system would have had enough time to detect the smoke/and fire in order to send a signal to Sonitrol's central station thereby alerting the proper authorities.

Thus the only evidence on the issue of causation, presented by the plaintiff, is essentially the opinions of Chen. Yet a review of his affidavit, as well as portions of his deposition testimony, indicate that there is no factual basis for his opinions and that they are simply theoretical.   Chen states that the fire area of origin was the first-floor living room at the northeast corner of the structure, and he bases this on his opinion that the back of the building was more consumed than the front.   His affidavit does not set forth any other factual basis for any of his conclusions.   His analysis regarding the spread of the fire used a theoretical fire source as well as a theoretical structure with theoretical features.   Our Code of Evidence allows for an expert to give his opinions “provided sufficient facts are shown as the foundation for the expert's opinion.”  Code of Evidence Sec. 7–4(a).  “Further, [i]n order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion ․ An expert's uncertainties in the essential facts will make an opinion based on them without substantial value.”  (Internal quotation marks and citations omitted).  Porter v. Thrane, 98 Conn.App. 336, 340 (2006).   Here there has not been sufficient facts shown as the foundation for Chen's opinion.

“[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”   (Internal quotation marks and citations omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins., 259 Conn. 527, 556 (2002).   It is appropriate for the court to consider the opinions of experts in determining a motion for summary judgment.   See, Barrett v. Danbury Hospital, 232 Conn. 242, 253 (1995).  “Although an affidavit by an expert may be considered in opposition to a motion for summary judgment, conclusory affidavits, even from expert witnesses, do not provide a basis on which to deny such motions.”  (Internal quotation marks and citations omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins., 259 Conn. 527, 557 (2002).   Even acknowledging that “[o]n summary judgment the inferences to be drawn from the underlying facts ․ must be viewed in the light most favorable to the party opposing the motion ․ A party may not, however, rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment.”  (Internal quotation marks and citations omitted.)  Id., p. 558.

In the absence of a factual basis for Chen's opinions, his opinions are based on speculation and conjecture.   Consequently, the plaintiff has not submitted admissible evidence which raises a question of fact as to the cause of the plaintiff's damages.

Counts Eleven 1 (Negligence v. Comcast) and Seventeen (Negligence v. AM Broadband)

As noted above, in order to make out a prima facie case of negligence, the plaintiff must submit evidence that, if credited, is sufficient to establish not only a breach of duty but causation.   Since she is unable to do so, her claims in negligence fail.

Therefore summary judgment shall enter in favor of the defendants on Counts Eleven and Seventeen.

B. Negligent and Fraudulent Misrepresentation

“This court has long recognized liability for negligent misrepresentation.   We have held that even an innocent misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing the truth ․ The governing principles are set forth in similar terms in 552 of the Restatement Second of Torts (1979):  One who, in the course of his business, profession or employment ․ supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.”  (Internal quotation marks and citations omitted.)  D'Ulisse–Cupo v. Board of Directors of N.D.H.S., 202 Conn. 206, 217–8 (1987).

The elements of a fraudulent misrepresentation are “that a false representation was made as to a statement of fact, that it was untrue and known by the defendants to be untrue, that it was made to induce the plaintiffs to [act], and that they acted upon the false representation to their detriment.   Connecticut law has firmly established that fraud must be proven by a standard more exacting than that of a fair preponderance of the evidence ․ The standard of proof for some cases such as those involving the acquisition of title by adverse possession, the termination of parental rights, libel, fraud, or reformation of a deed or contract is that of clear and convincing proof, a standard greater than proof by a fair preponderance of the evidence but less than proof beyond a reasonable doubt.”  (Internal quotation marks and citations omitted.)  Kavarco v. T.J.E., Inc., 2 Conn.App. 294, 295–6 (1984).

Counts Twelve (Negligent Misrepresentation v. Comcast);  Fourteen (Fraudulent Misrepresentation v. Comcast);  Eighteen (Negligent Misrepresentation v. AM Broadband);  Twenty (Fraudulent Misrepresentation v. AM Broadband)

Comcast claims that the plaintiff has admitted that Comcast made no representations to her and the allegations made against it in Counts Twelve and Fourteen are baseless.   The complaint alleges a number of representations the plaintiff claims were made by Comcast.  (Amended Complaint, Twelfth Count, paragraph 9;  Fourteenth Count, paragraph 8.) The plaintiff has failed to submit any evidence which supports a conclusion that such claims were made.   As noted above, “[o]nce the moving party has met its burden [of production] ․ the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ [I]t [is] incumbent [on] the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists ․ The presence ․ of an alleged adverse claim is not sufficient to defeat a motion for summary judgment.”  (Citation and internal quotation marks omitted.)   The Episcopal Church v. Gauss, 302 Conn. 408, 422 (2011).   Therefore the Motion for Summary Judgment is granted as to Counts Twelve and Fourteen.

As to the claims of negligent and fraudulent misrepresentation against it, AM Broadband claims that the plaintiff admitted that no representations were made to her.   The plaintiff makes a number of claims in her complaint of representations made by AM Broadband (Amended Complaint, Eighteenth Count, paragraph 9;  Twentieth Count, paragraph 9) but has submitted no evidence that such representation were, in fact, made.   A review of the plaintiff's deposition testimony also does not reveal that she was the recipient of any representations, such as set forth in her complaint, from AM Broadband.   Therefore the Motion for Summary Judgment is granted as to Counts Eighteen and Twenty.

C. Reckless, Wanton and Wilful Misconduct

“Recklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man, and the actor must recognize that his conduct involves a risk substantially greater ․ than that which is necessary to make his conduct negligent ․ More recently, we have described recklessness as a state of consciousness with reference to the consequences of one's acts ․ It is more than negligence, more than gross negligence ․ The state of mind amounting to recklessness may be inferred from conduct.   But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ․ Wanton misconduct is reckless misconduct ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ․ While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing.   The result is that willful, wanton, or reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.”  (Internal quotation marks and citations omitted.)  Matthiessen v. Vanech, 266 Conn. 822, 832–3 (2003).  “Recklessness is a state of consciousness with reference to the consequences of one's acts ․ It is more than negligence, more than gross negligence ․ The state of mind amounting to recklessness may be inferred from conduct.   But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them ․ Wanton misconduct is reckless misconduct ․ It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action ․ It is at least clear ․ that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention.”  (Internal quotation marks and citation omitted.)   Fricilli v. Westport, 264 Conn. 266, 277–8 (2003).

Causation is also an necessary part of any proof of an action grounded in recklessness.  “A legal, or proximate, causal connection between the conduct and the resulting injury is a necessary element of causes of action in gross negligence or in recklessness.   See, e.g., Shinville v. Hanscom, 116 Conn. 672, 674, 166 A. 398 (1933) (‘to furnish a basis of recovery, reckless misconduct must have been a substantial factor in bringing about the injuries complained of’).   A prerequisite to a determination of proximate causation is a finding of causation in fact.”  Boehm v. Kish, 201 Conn. 385, 390 (1986).

Counts Fifteen (Reckless, Wanton and Willful Misconduct v. Comcast);  and Twenty-first (v. AM Broadband)

In the absence of the ability to prove causation, the plaintiff cannot prevail on her claims of recklessness as well.   In addition, the plaintiff cannot sustain her claims of recklessness on the merits against the defendants.

Comcast claims that the allegations in the recklessness count against it are entirely false and not brought in good faith.   In the Fifteenth Count the plaintiff claims that Comcast's recklessness is demonstrated by its failure to install the telephone lines so that it would properly work with the preexisting alarm system, so that it would comply with state and national codes, and comply with the manufacturer's specifications;  that it failed to provide the plaintiff with an instruction manual;  or with directions for testing the telephone lines to ensure that they were operating as Comcast represented and properly with the alarm system;  etc.  (Amended Complaint, Fifteenth Count, paragraph 9.) These allegations alone do not allege reckless conduct.   In addition, reviewing the evidence set forth by the plaintiff, the court finds that no issue of material facts exists that the conduct of Comcast was reckless.

AM Broadband claims that there is no facts or evidence to support the plaintiff's recklessness claim against it.   In support of the plaintiff's recklessness claim, she alleges that AM Broadband's recklessness is demonstrated by its failure to install the telephone lines so that it would properly work with the pre-existing alarm system, so that it would comply with state and national codes, and comply with the manufacturer's specifications;  that it failed to provide the plaintiff with an instruction manual;  or with directions for testing the telephone lines to ensure that they were operating as AM represented and properly with the alarm system;  etc.  (Amended Complaint, Twenty–First Count, paragraph 8.) These allegations alone do not allege reckless conduct.   In addition, reviewing the evidence set forth by the plaintiff, the court finds that no issue of material facts exists that the conduct of AM Broadband was at most negligent and not reckless.   The plaintiff claims that the evidence allows for an inference that at the time AM Broadband installed the new telephone system it failed to recognize that the plaintiff's home had an alarm system and failed to take the necessary steps to ensure it was working properly with the new phone system, and failed to notify the plaintiff of any potential issues with the new service working with the alarm system in the home.   Even accepting these allegations, the plaintiff has not proved a claim of recklessness.   As noted above “recklessness requires a showing greater than that required to prove gross negligence.”  Atelier Constantin Popescu v. JC Corporation, 134 Conn.App. 731, 752 (2012).

Therefore the motion for summary judgment is granted as to Counts Fifteen and Twenty-one.

D. Breach of Contract

“[T]he elements of a cause of action founded on breach of contract [are] (1) the formation of an agreement, (2) performance by one party, (3) breach of the agreement by the opposing party and (4) damages ․ [T]he nonbreaching party may recover only for damages that are direct[ly] and proximate[ly] caused by a defendant's breach of contract, causation is an element—and a crucial one—of the plaintiff's prima facie case.”  (Internal quotation marks and citations omitted.)  McCann Real Equities v. McDermott, 93 Conn.App. 486, 503–4 (2006).

Counts Thirteen (Breach of Contract v. Comcast);  and Count Nineteen (Third–Party Beneficiary v. AM Broadband)

The plaintiff claims that Comcast entered into a contract to provide telephone service for Frank and Susan Behan at their residence which was in full force and effect on February 13, 2009 when the fire occurred.   She claims that Comcast breached the contract in essentially the same ways cited as support for her other claims.

As to the plaintiff's breach of contract claims against AM Broadband, the plaintiff claims that Comcast entered into a contract to provide telephone service for Frank and Susan Behan at their residence which was in full force and effect on February 13, 2009 when the fire occurred.   She also claims that Comcast entered into an agreement with AM Broadband by which AM Broadband was to install telephone lines, equipment and systems into homes, such as the plaintiffs, designated by Comcast.   She claims that given the terms of the contract between AM Broadband and Comcast, third parties, such as the plaintiff, relied on the obligations assumed by AM Broadband.   She alleges that damages caused by the fire were caused by AM Broadband's breach of its duties and/or contract in essentially the same ways cited as support for her other claims.

Since causation is also an element of proof on her breach of contract claims and, as noted above, she cannot prove causation, summary judgment is granted as to Counts Thirteen and Nineteen.

E. CUTPA

“To prevail on a CUTPA claim, the plaintiffs must prove that (1) the defendant engaged in unfair or deceptive acts or practices in the conduct of any trade or commerce;  General Statutes § 42–110b(a);  and (2) ․ [he or she] has suffered an ascertainable loss of money or property as a result of the defendant's acts or practices.  General Statutes § 42–110g(a) ․ The ascertainable loss requirement is a threshold barrier which limits the class of persons who may bring a CUTPA action seeking either actual damages or equitable relief ․ Thus, to be entitled to any relief under CUTPA, a plaintiff must first prove that he has suffered an ascertainable loss due to a CUTPA violation.”  (Citation omitted;  internal quotation marks;  and footnote omitted.)  Artie's Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 217–18 (2008).   Thus causation is also an element of proof of a CUTPA claim.

Count Sixteen (CUTPA v. Comcast)

The plaintiff claims that Comcast's conduct constituted unfair or deceptive trade practices or acts and therefor violates the Connecticut Unfair Trade Practices Act. She also claims that its conduct “caused” her to suffer damages.  (Amended Complaint, Count Sixteen, paragraph 16.)

A claim pursuant to CUTPA requires that the plaintiff prove, as she has alleged, that her damages were caused by the defendant's violation of CUTPA.   As already determined, she cannot do so.   Therefore summary judgment is granted as to Count Sixteen.

III. CONCLUSION

Defendant Comcast's Motions for Summary Judgment, # 191 in Docket No. CV 09–5031971, and # 151 in Docket No. CV11–6019178, are granted.

Defendant AM Broadband's Motion for Summary Judgment, # 178 in Docket No. CV–11–6019178, is granted.

Jane S. Scholl, J.

FOOTNOTES

FN1. The operative complaints in both cases are the same except that Counts Seventeen through Twenty–Two are added in the complaint in Docket No. 11–6019178..  FN1. The operative complaints in both cases are the same except that Counts Seventeen through Twenty–Two are added in the complaint in Docket No. 11–6019178.

Scholl, Jane S., J.