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Williams v. Campanaro Const. Co., Inc.

Court of Appeals of Connecticut

February 27, 1990

Larry WILLIAMS et al.
v.
CAMPANARO CONSTRUCTION COMPANY, INC.

Argued Dec. 11, 1989.

Brian J. Casey, New Haven, for appellant (defendant).

Kevin J. Pohl, Hartford, for appellees (plaintiffs).

Before DALY, NORCOTT and FOTI, JJ.

[20 Conn.App. 710] NORCOTT, Judge.

The defendant appeals from the trial court's judgment rendered in favor of the plaintiffs in the amount of $6809.60 for

Page 229

compensatory damages resulting from the rupture of a sewer pipe in Milford.

The following facts are not in dispute. In November, 1985, the defendant, Campanaro Construction Company, entered into a construction contract with the state to build a flood control channel at the Great Creek Silver Sands State Park in the city of Milford. In connection with this project, the defendant entered into a subcontractor agreement with Northeast Dredging, Inc., under which Northeast was to furnish all labor and equipment necessary to construct the new Great Creek Channel. On or about August 19, 1986, a sewer pipe ruptured in the area of the Great Creek Silver Sands Park where Northeast was working.

The named plaintiff, Larry Williams, is a commercial shellfisherman who leases shellfish beds in the Connecticut waters off the coast of Milford. [1] As a result of the pipe rupture, sewage was discharged into the surrounding waters causing the closure, from August 19 to September 3, 1986, of shellfish beds leased by the plaintiffs.

The case was referred to an attorney trial referee who, after a hearing, issued a report recommending that judgment be rendered in favor of the plaintiffs on the negligence count [2] of the complaint in the amount [20 Conn.App. 711] of $6809.60, which was the amount of damages to which Williams had testified. The trial court accepted the referee's recommendation and rendered judgment accordingly.

On appeal, the defendant claims that the trial court erred in accepting the referee's conclusion that the evidence introduced at trial established a cause of action in negligence against the defendant. Specifically, the defendant argues that the evidence failed to establish (1) that the sewer pipe was ruptured due to the negligent conduct of the defendant and (2) that Northeast was an agent of the defendant company. We find error.

A review of the record reveals that, in her report, the referee made absolutely no reference to agency, negligence or negligent conduct. The defendant filed a motion to correct the memorandum of decision requesting that the referee address these deficiencies. The referee, in denying the defendant's motion, articulated that "evidence adduced at trial" led her to conclude that Northeast "was an agent and under contract with the defendant and that the sewer line rupture was caused while Northeast Dredging Company, Inc., was in performance of its contract with the defendant."

The function of this court is to determine whether the trial court's findings are clearly erroneous. Practice Book § 4061; Bowman v. 1477 [20 Conn.App. 712] Central Avenue Apartments, Inc., 203 Conn. 246, 256-57, 524 A.2d 610 (1987); Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). On appeal, we must determine whether the legal conclusions of the trial court are " 'legally and logically correct and whether they find support in the facts set out in the memorandum of decision....' " Bowman v. 1477 Central Avenue Apartments, Inc., supra, 203 Conn. at 256, 524 A.2d 610. " 'In reviewing the evidence ... we must give it the most favorable construction in support of the verdict of which it is reasonably capable.' " Shelnitz v. Greenberg, 200 Conn. 58, 67, 509 A.2d 1023 (1986).

Our review of the record reveals that there was insufficient evidence to support a finding of liability for negligence against the defendant. "Recovery of damages in negligence requires proof by a fair preponderance of the evidence that the actor owed a duty of care to the victim, which was breached by the actor's failure to meet the standard of care arising therefrom and

Page 230

that the breach was the proximate cause of actual harm suffered by the victim." (Emphasis added.) Coburn v. Lenox Homes, Inc., 186 Conn. 370, 372, 441 A.2d 620 (1982). "[T]he trier may not decide an issue which is wholly unsupported by the evidence." New Haven Savings Bank v. ...


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