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Vermont Mutual Insurance Co. v. Fern

Court of Appeals of Connecticut

May 24, 2016

VERMONT MUTUAL INSURANCE COMPANY
v.
BRUCE FERN, SR., ET AL.

          Argued January 7, 2016

         Appeal from Superior Court, judicial district of Fairfield, Hon. George N. Thim, judge trial referee.

          A. Jeffrey Somers, for the appellant (named defendant).

          Stuart G. Blackburn, with whom was Derek E. Donnelly, for the appellee (plaintiff).

          Gruendel, Prescott and Bear, Js.

          OPINION

          BEAR, J.

         The defendant Bruce Fern, Sr., appeals from the judgment of the trial court in favor of the plaintiff, Vermont Mutual Insurance Company. The plaintiff brought this subrogation action against the defendant and his son, the defendant Bruce Fern, Jr., [1] to recover damages resulting from a fire occurring on a residential property on November 6, 2011. The defendant argues that the court erred in determining that (1) the defendant owed a duty to the plaintiff’s insured and (2) the defendant installed a boiler and was equally at fault with his son. We affirm the judgment of the trial court.

         In its memorandum of decision, the court made the following findings of fact. The defendant and his son both work as contractors, although only the defendant is a registered improvement contractor. Although both had some prior experience in installing new boilers, [2]neither the defendant nor his son has the necessary occupational license to engage in plumbing and piping work or heating, piping, and cooling work.

         Charles Loria (insured) was the owner of property located at 155 Twin Lanes Road in Easton (property), on which he possessed an insurance policy issued by the plaintiff. At the time of the fire, the insured’s former wife, Elizabeth Loria (occupant), lived on the property with her children.[3] She told investigators subsequent to the fire that the defendant and his son had installed the boiler about a week before the fire occurred.

         On the day of the installation, the defendant and his son arrived at the property, removed the old boiler, and installed the new boiler. The defendant was responsible for certain aspects of the installation of the new pipe connecting the boiler to the chimney. This work involved measuring the pipe, making the proper cuts, and installing the adapter[4] that connected the pipe and chimney into the masonry. When installing the chimney connector into the masonry, the defendant used a two-by-four board to knock the adapter into the chimney. He also held the pipe in place while his son affixed the adapter and the pipe to one another. No further action, such as the use of cement or strapping the pipe in place, was taken to secure the chimney connector into the chimney. The defendant did not read the installation manual for the boiler or speak with a building inspector about the applicable regulations governing the installation of the boiler. The defendant’s son ignited the boiler, but failed to make any adjustments to the appliance as required by the manufacturer.

         Approximately one week after the defendant and his son installed the boiler, the chimney connector became disconnected from the masonry.[5] As a result, exhaust gases from the boiler were directed onto the joists of the basement ceiling and, over time, generated sufficient heat to start the fire. From the basement, the fire spread to other parts of the property, resulting in damages exceeding $350, 000.

         During the subsequent investigation into the fire, two potential causes were identified as causing the fire. First, the boiler had not been placed to the proper settings and adjusted as required during the initial installation; consequently, the boiler had been running improperly and accumulated a large amount of soot. Second, the chimney connector had not been cemented into the chimney or secured in place by a separate piece of equipment; consequently, it became dislodged from the chimney. One of the investigators stated that, if the chimney connector had been secured properly into the chimney, the connector would not have become disconnected due to the improper installation and adjustment of the burner.

         In its amended complaint, the plaintiff asserted two theories for recovery: (1) the defendant and his son had acted negligently in installing the boiler (counts one and three); and (2) they had breached an implied covenant that all work would be performed in a workmanlike manner (counts two and four). Following a trial to the court, the court issued its memorandum of decision on February 26, 2015. Recounting the essentials of this chronology, the court found that both the defendant and his son had violated various statutes and regulations while installing the boiler. Consequently, the court held that the defendant and his son had acted negligently and violated an implied covenant that their work would be done in a workmanlike manner, their actions were the proximate cause of the fire, and they were equally at fault. Therefore, the court found in favor of the plaintiff on each count of its complaint. This appeal followed.

         I

         On appeal, the defendant primarily asserts that the court erred in finding that he owed a duty to the insured or the occupant. The defendant asserts that the resulting fire was unforeseeable to him because his role in installing the boiler was relatively limited. In making this argument, the defendant relies on the difference in the type and character of his work when compared to that of his son. In particular, the defendant asserts that his son was the contractor retained or engaged by the occupant, made the agreement to install the boiler, held himself out as having the necessary skill and expertise to install the boiler, and, thus, had the ultimate responsibility for verifying that the boiler was properly installed. The defendant frames his personal involvement much more narrowly, contending that he was merely a laborer or helper, rather than a subcontractor, and claims as support that he took direction from his son, was not paid for his labor, and never held himself out as having any skill whatsoever in boiler installation. We disagree.

         We begin by noting that the defendant’s argument appears to confuse the existence of a duty with the scope of that duty once one is found to exist;[6] thus, he blends together two separate concerns. ‘‘The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. . . . Contained within the first element, duty, there are two distinct considerations. . . . First, it is necessary to determine the existence of a duty, and [second], if one is found, it is necessary to evaluate the scope of that duty. . . . The issue of whether a duty exists is a question of law . . . which is subject to plenary review. We sometimes refer to the scope of that duty as the requisite standard of care.’’ (Internal quotation marks omitted.) Doe v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 373, 119 A.3d 462 (2015).

         ‘‘A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.’’ Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982). Although ‘‘[t]he ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised . . . [f]oreseeability in this context is a flexible concept, and may be supported by reasonable reliance, impeding others who might seek to render aid, statutory duties, property ownership or other factors.’’ (Citation omitted; internal quotation marks omitted.) Burns v. Board of Education, 228 Conn. 640, 647, 638 A.2d 1 (1994), overruled on other grounds by Haynes v. Middletown, 314 Conn. 303, 323, 101 A.3d 249 (2014).

         In holding that the defendant was liable for the fire, the court did not engage in a separate analysis concerning whether it was foreseeable that a fire could occur. Instead, it relied on two groups of statutes and regulations that the defendant and his son contravened while installing the boiler. It first noted that although neither the defendant nor his son had the occupational license required by statute for this work, they wilfully engaged in this work and the fire was ‘‘[t]he harm that . . . the licensing requirement was designed to prevent.’’ It also noted that certain codes and standards promulgated by the National Fire Protection Association (standards) had been incorporated into our law and were not followed by the defendant. Thus, in effect, the court analyzed duty as a question of negligence per se under these two groups of statutes and regulations.[7]

         ‘‘Negligence per se . . . serves to superimpose a legislatively prescribed standard of care on the general standard of care. . . . A violation of the statute or regulation thus establishes a breach of duty when (1) the plaintiff is within the class of persons intended to be protected by the statute, and (2) the injury is the type of harm that the statute was intended to prevent. . . . Although the plaintiff still must demonstrate the remaining elements of negligence, the jury in a negligence per se case need not decide whether the defendant acted as an ordinarily prudent person would have acted under the circumstances. [It] merely decide[s] whether the relevant statute or regulation has been violated. If it has, the defendant was negligent as a matter of law.’’ (Citations omitted; footnote omitted; internal quotation marks omitted.) Duncan v. Mill Management Co. of Greenwich, Inc., 308 Conn. 1, 24–25, 60 A.3d 222 (2013).

         ‘‘Generally, our courts have treated a statutory violation as negligence per se in situations in which the statutes or city ordinances at issue have been enacted for the purpose of ensuring the health and safety of members of the general public.’’ (Internal quotation marks omitted.) Shukis v. Board of Education, 122 Conn.App. 555, 580, 1 A.3d 137 (2010). Our Supreme Court has held on prior occasions that legislative enactments that contain criminal penalties could qualify as the statutory predicate for negligence per se claims. See Panaroni v. Johnson, 158 Conn. 92, 100–102, 256 A.2d 246 (1969) ...


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