Opinion
No. CV 02-0172369 S
December 21, 2007
MEMORANDUM OF DECISION
Introduction
The Plaintiffs, Verdi Vejseli and Anife Vejseli, bring this action in nine-counts against the Defendants, Gani Pasha and Myzejen Pasha; the Town of Watertown and its Building Official, Richard Fusco, and its Assistant Building Inspector, Joel Skilton. In the Second Count of the Complaint, the Vejselis claim that the Pashas were negligent in their design, construction, development and sale of a house to the Plaintiffs. In the Fourth Count, the Plaintiff's claim that the defects and deficiencies in the construction of the house constitute a breach by the Pashas of the implied warranties set forth in the New Home Warranties Act, General Statutes § 47-118. In the Fifth Count, the Plaintiffs claim that the defects and deficiencies in the construction of the house constitute a breach by the Pashas of the implied warranties embodied in the certificate of occupancy pursuant to General Statutes § 47-121. In the Sixth Count, the Plaintiffs claim a breach of contract by the Pashas. In the Eighth Count, the Plaintiffs claim a violation of the Connecticut Unfair Trade Practices Act by the Pashas. In the Tenth Count, the Plaintiffs claim that Richard Fusco and Joel Skilton, in their official capacities, were reckless in issuing a certificate of occupancy for the house based on Fusco and Skilton's representations that the premises were in compliance with applicable codes. In the Eleventh Count, the Plaintiffs claim that the Town of Watertown is liable pursuant to General Statutes § 52-557n(b) because of the issuance of the certificate of occupancy which constituted a reckless disregard for health and safety. In the Twelfth Count, the Plaintiffs claim recklessness by the Town in the performance of its duties. In the Thirteenth Count, the Plaintiffs seek equitable reformation or rescission of a promissory note and mortgage given by the Plaintiffs to the Pashas.
The Complaint is in thirteen counts but summary judgment was granted as to the Ninth Count and the Plaintiff withdrew the First, Third and Seventh Counts.
The court dismissed the case as to Gani Pasha because he had died during the pendency of this case and no representative of his estate had been substituted.
Trial on this matter was held on September 25th, 26th, and 27th, 2007. At that time the court heard testimony from the Plaintiffs, Anile and Verdi Vejseli; Paul Foschi, a project manager and registered architect for Caldwell Walsh; the Defendant, Joel Skilton; the Defendant, Myzejen Pasha; and Anthony Fusco, an adjoining property owner. The Plaintiffs filed a post-trial brief on October 31st and the Defendants filed post-trial briefs on November 16th and 27th. The Plaintiffs filed a reply brief on November 29th.
Findings of Facts
Certain facts alleged by the Plaintiffs in their complaint have been admitted by the Defendants. They are: The Plaintiffs are individuals and residents of the Town of Waterbury, County of New Haven and State of Connecticut. The Pasha Defendants are individuals and residents of the Town of Watertown, County of Litchfield and State of Connecticut. The Defendant Town of Watertown is a duly authorized and existing municipality of the State of Connecticut. At all relevant times, the Defendant Richard Fusco was the Building Official of the Town and the Defendant Joel Skilton was the Assistant Building Inspector of the Town. The Pashas owned a parcel of land, now commonly known as 11 Georgetown Drive, Watertown, Connecticut. The Pashas decided to construct a single family dwelling upon the property. The Pashas were not and are not licensed building contractors. They represented that the dwelling house to be constructed would be for their own use and occupancy in order to obtain the necessary permits from the Town. The Pashas constructed a dwelling house on the property. On or about January 10, 2001, the Pashas and the Plaintiffs entered into a real estate contract under which the Pashas agreed to sell, and the Plaintiffs agreed to purchase, the newly constructed single-family residence on the premises. The total contract price was $220,000. In order to finance the transaction, the Pashas agreed to hold a second purchase money note and mortgage in the amount of $100,000 on behalf of the Plaintiffs. On May 30, 2001 the Town issued a Certificate of Occupancy for the premises, certifying that the property and structures thereon were in substantial conformity with the codes and regulations of the town and the state. The issuance by a building department of any municipality of a certificate of occupancy for any newly constructed single family dwelling "shall carry an implied warranty to the purchaser of such dwelling from the vendor who constructed it that such vendor has complied with the building code . . ." On or about June 27, 2001 the Plaintiffs and the Pashas completed a closing of the sale of the premises. At that time the Plaintiffs executed and delivered a promissory note to the Pashas in the amount of $100,000 and the second mortgage.
Based upon a preponderance of the evidence, the court finds the following additional facts. The Defendants, Gani and Myzejen Pasha, were married. Mr. Pasha made his living from building and selling houses. The house on Georgetown Road was built by Mr. Pasha for his family to live in but Mr. Pasha decided, over the objections of his wife, to sell the property. He advised his wife that he would build her another house. Mrs. Pasha occasionally visited the site and brought lunch or coffee to the site. Although she was seen by a neighbor occasionally working at the site, Mr. Pasha was in charge of the construction of the house. Mr. Stilton, the building official who signed the certificate of occupancy did not recall seeing Mrs. Pasha at the premises either when he inspected the property for purposes of the certificate of occupancy or after the flood. He does recall Mr. Pasha being present on both occasions. Mrs. Pasha may have assisted her husband at times while he worked on the house but she did not normally work outside the home during their marriage and instead raised their four children. It was Mr. Pasha who was engaged in the construction business.
The Plaintiffs first saw the Pashas' house on Georgetown Drive in Watertown when it was being built. They saw the owners working on the property. However the house was priced higher then they could afford. A few months later someone contacted them and inquired whether they were still interested in the house because the Pashas had reduced the price and agreed to take a second mortgage. They decided to buy the house and a contract of sale, dated January 10, 2001, was entered into between the Pashas and the Plaintiffs after negotiations between Mr. Vejseli and Mr. Pasha. The closing was originally scheduled for the following March, but the house was not yet completed. A certificate of occupancy was issued by the town building inspector on May 30, 2001. Pursuant to the certificate of occupancy, the building official certified that the house was in substantial compliance with the building code. The closing finally occurred in June. Although the Plaintiffs had a right to have an inspection done of the premises, pursuant to the terms of the contract of sale, they did not hire an inspector to inspect the house prior to the closing. At the closing the Plaintiffs executed a mortgage note in the amount of $100,000 in favor of the Pashas payable over ten years without interest. The Plaintiffs moved into the property the day of the closing. At that time the upstairs bathroom was not completed so money was escrowed in order to ensure that it would be done. The bathroom was completed some time after the closing and the escrowed funds were paid to the Pashas. Approximately seven months after the closing, on February 5, 2002, a water pipe burst in the ceiling of the dining room causing significant damage to the house. The pipe apparently burst because of a lack of proper insulation to prevent it from freezing. The Plaintiffs moved out of the house that day and have not returned. The Plaintiffs did not notice any significant problems with the house prior to February 5, 2002, but after the flood they noticed various defects in the construction of the house. Mr. Pasha offered to fix all the defects they identified but the Plaintiffs did not allow him to do so. The Plaintiffs received $80,000 from their insurance company for living expenses and repairs to the property. The Plaintiffs have not made any mortgage payments to the Pashas since April 2002. The Plaintiffs have not done any maintenance to the interior or the exterior of the house since 2002.
An inspection by an expert, Mr. Foschi, four years after the flood, in February 2006, revealed numerous problems with the house such as bulging vinyl siding, the handrail on the rear deck was loose, the balusters in the second floor railing were loose and are spaced further apart then allowed by the code, microlam beams were missing, and the house exhibited generally poor workmanship. During the Plaintiffs' occupancy of the house, however, no one had been injured because of any of the defects.
Burden of Proof
The Plaintiffs have the burden of proving their claims, except as otherwise noted, by a preponderance of the evidence. This means that "in an ordinary civil action the party upon whom rests the burden of proof as to a fact or issue has sustained that burden if the evidence, considered fairly, induces in the trier's mind a reasonable belief that it is more probable than otherwise that the fact or issue is true." (Quotation marks and citations omitted.) Holmes v. Holmes, 32 Conn.App. 317, 318, cert. denied, 228 Conn. 902 (1983).
Claims Against the Pashas Second Count — Negligence
In the Second Count of the Complaint the Plaintiffs claim that the Pashas were engaged in the business of erecting and/or improving real estate and were under a duty to the Plaintiffs "to perform their work and duties in a workmanlike manner and in compliance with all applicable codes, laws, engineering, building plans and specifications, and were careless and negligent in said duty in their design, construction, development and sale of the premises."
"[E]stablishing a claim of negligence requires proof that the defendant owed a duty of care to the plaintiff and that his or her failure to meet the standard of care proximately caused the damages sustained by the plaintiff . . . In terms of the nature of the duty owed, our Supreme Court has noted that [a] builder is under a duty to exercise that degree of care which a skilled builder of ordinary prudence would have exercised under the same or similar conditions." (Internal quotation marks and citation omitted.) Anderson v. Whitten, 100 Conn.App. 730, 739 (2007). Thus the first issue the court must decide is whether Mrs. Pasha owed a duty of care to the Plaintiff as the builder of the house. In this regard, the evidence established that Mr. Pasha was the actual builder of the house and the one who oversaw its construction. Mrs. Pasha was on the premises at times only to assist him. The evidence did not establish that she was in fact the builder of the house in the sense that she was responsible for its design, development or construction as alleged. Since Mrs. Pasha was not, as claimed, in the business of erecting and/or improving real estate, the Plaintiffs did not establish that she owed a duty to the Plaintiffs as the builder of the house.
Judgment shall enter in favor of the Defendant, Mrs. Pasha, on the Second Count of the complaint.
Fourth and Fifth Counts — New Home Warranties Act
In the Fourth and Fifth Counts the Plaintiffs make claims against the Defendant Myzejen Pasha based on the New Home Warranties Act, specifically, General Statutes §§ 47-118 and 47-121. General Statutes § 47-118 provides, in pertinent part: "(a) In every sale of an improvement by a vendor to a purchaser, except as provided in subsection (b) of this section or excluded or modified pursuant to subsection (d), warranties are implied that the improvement is: (1) Free from faulty materials; (2) constructed according to sound engineering standards; (3) constructed in a workmanlike manner, and (4) fit for habitation, at the time of the delivery of the deed to a completed improvement, or at the time of completion of an improvement not completed when the deed is delivered. (b) The implied warranties of subsection (a) of this section shall not apply to any condition that an inspection of the premises would reveal to a reasonably diligent purchaser at the time the contract is signed. . . . (e) The implied warranties created in this section shall terminate: (1) In the case of an improvement completed at the time of the delivery of the deed to the purchaser, one year after the delivery or one year after the taking of possession by the purchaser, whichever occurs first; and (2) in the case of an improvement not completed at the time of delivery of the deed to the purchaser, one year after the date of the completion or one year after taking of possession by the purchaser, whichever occurs first." General Statutes § 47-121 provides: "Subject to the provisions of section 29-265, the issuance by the building department of any municipality of a certificate of occupancy for any newly constructed single-family dwelling shall carry an implied warranty to the purchaser of such dwelling from the vendor who constructed it that such vendor has complied with the building code or the customary application and interpretation of the building code of such municipality." General Statutes § 47-116 defines "improvement" as "any newly constructed single family dwelling unit, any conversion condominium unit being conveyed by the declarant and any fixture or structure which is made a part thereof at the time of construction or conversion by any building contractor, subcontractor or declarant." "Vendor" is defined in that same statute as "any person engaged in the business of erecting or creating an improvement on real estate, any declarant of a conversion condominium, or any person to whom a completed improvement has been granted for resale in the course of his business." The home here clearly comes within the definition of "improvement" since it was a newly constructed single family dwelling unit built on the property of the sellers. The statute has been repeatedly interpreted as setting forth warranties and imposing liability on the builder/vendor of a new home in favor of the original buyer of improved real estate as opposed to the situation in which the plaintiffs already owned the land before contracting for the erection of a new home upon it. Salisbury v. Philip Hayes Builders, Superior Court, Judicial District of Middlesex at Middletown, Docket No. CV04-0103923 S (Silbert, J., Aug. 18, 2004). The issue then becomes whether Mrs. Pasha was a "vendor" within the meaning of the statute.
Pursuant to the language of the statute, in order to be a "vendor" Mrs. Pasha must have been "engaged in the business" of constructing the home purchased by the Plaintiffs. The Plaintiffs allege in their complaint that the Pashas "are engaged in the business of erecting and/or improving real estate." The evidence does not support such a conclusion as to Mrs. Pasha. The evidence was sufficient to support a conclusion that Mr. Pasha was engaged in such a business, and had been for sometime. Consequently, he would have been subject to the statutes on new home warranties. The same conclusion cannot be reached regarding his wife, however, based solely on her relationship to him as such, without more. The evidence established that Mr. Pasha was responsible for directing the construction of the house, negotiating with the Plaintiffs regarding its sale, and interacting with the building officials during their inspections. Mr. Pasha also interacted with the Plaintiffs after the pipe burst, inspecting the premises with Mr. Vejseli and the building inspector and offering to make repairs. Although Mrs. Pasha may have assisted her husband on occasion while he was working on the house or accompanied him when he went to buy supplies, and the family was supported by his work, the evidence did not establish that Mrs. Pasha took part in any of the significant decision making regarding the building or sale of the house or was a partner in any real way with him in his construction business. In fact, Mrs. Pasha did not want to sell the house. Thus the evidence does not support the claim that Mrs. Pasha was engaged in the business of erecting or creating improvements to real estate and a "vendor" within the meaning of the statutes.
Therefore Mrs. Pasha is not liable to the Plaintiffs pursuant to the New Home Warranties Act and judgment shall enter in her favor on the Fourth and Fifth Counts.
Sixth Count — Breach of Contract
Although the parties have not addressed, in their post-trial briefs, the claims against Mrs. Pasha in the Sixth and Eighth Counts, since they have not been withdrawn, the court will rule upon them.
In the Sixth Count of their complaint the Plaintiffs claim that: "By the express and implied terms of the purchase/sale agreement the Sellers promised to construct the Premises without the aforesaid defects and in full compliance with the laws, rules and regulations of the State of Connecticut and the Town." A review of the contract of sale indicates that the contract was not for construction of the premises but for conveyance of the real property together with the "Buildings and improvements thereon." In that regard, the contract did provide that the "Seller will provide an unconditional `Certificate of Occupancy' issued by the Town of Watertown," which the Plaintiffs admit was provided. Paragraph 21 of the Complaint alleges that: "On or about June 20, 2001 the Town issued a Certificate of Occupancy for the Premises certifying that the property and structures thereon were in substantial conformity with the codes and regulations of the Town and the State of Connecticut."
Therefore the Plaintiffs cannot prevail on this count, against Mrs. Pasha, since there is no evidence that she breached the terms of the contract for sale.
Judgment shall enter in her favor on the Sixth Count.
Eighth Count — Unfair Trade Practices Act
In the Eighth Count of their Complaint the Plaintiffs claim that the Pashas' conduct was in violation of the Connecticut Unfair Trade Practices Act ("CUTPA"). To support a claim under CUTPA, the Plaintiffs must allege and prove that the actions of the Defendant were performed in the conduct of "trade or commerce." Muniz v. Kravis, 59 Conn.App. 704, 711 (2000). Since this court has found that Mrs. Pasha was not engaged in the business of building and selling houses, CUTPA does not apply to her. Courts have also held that a single sale of a personal residence does not constitute the conduct of a trade or business such as to be subject to CUTPA. Zarikos v. Mannetti, Superior Court, Judicial District of Stamford-Norwalk, Complex Litigation Docket at Stamford, Docket No. X08 CV 03 0196069 (Adams, J., Oct. 4, 2004). "No Connecticut appellate court has definitively ruled on whether a one-time sale of real estate from an individual not engaged in the business of real under the ambit of CUTPA . . . Although a single transaction may be the proper subject of a CUTPA count, the essence of the Act, despite its broad definition of `trade' and `commerce,' is its effort to provide a remedy for the unfair practices purpose of an existing or continuing enterprise, not misconduct that might occur in the course of a one-time transaction by a private individual." (Internal citations omitted.) Wardak v. Wierzbicki, Superior Court Judicial District of Hartford at Hartford, Docket No. CV 04-4002711 (Keller, J., Apr. 17, 2006).
Judgment shall enter for the Defendant on the Eighth Count.
Thirteenth Count — Rescission or Reformation of the Promissory Note and Mortgage
In the Thirteenth Count the Plaintiffs claim that they are entitled to equitable reformation or rescission of the promissory note and mortgage based on one or more of the following grounds: a) lack of consideration; b) sellers' unconscionable conduct or "unclean hands;" c) fraud; and d) unjust enrichment. The Defendant Pasha claims that the Plaintiffs are not entitled to rescission or reformation of the note and mortgage. The Plaintiffs have not briefed this issue.
"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." (Citations omitted.) Kavarco v. T.J.E., Inc., 2 Conn.App. 294, 296 (1984). Thus the Plaintiffs' claims must be measured against this heightened evidentiary standard.
"Rescission of a contract is an appropriate remedy if there has been a material misrepresentation of fact upon which a party relied and which caused it to enter the contract . . . The material misrepresentation, when made in connection with the sale of land, may be an innocent misrepresentation . . . At the option of the defrauded party, where there has been fraud in the inducement of the contract, the contract is voidable or subjects the defrauding party to a suit for damages . . . The party defrauded has the option of electing either to rescind the contract or to claim damages for the breach of the contract . . . To seek rescission is to waive any claim for damages arising from a breach of the contract . . . The remedy of rescission and restitution is an alternative to damages in an action for breach of contract . . . Rescission, simply stated, is the unmaking of a contract. It is a renouncement of the contract and any property obtained pursuant to the contract, and places the parties, as nearly as possible, in the same situation as existed just prior to the execution of the contract. A condition precedent to rescission is the offer to restore the other party to its former condition as nearly as possible . . . If damages would be inadequate for justice in a particular case, rescission and restitution is the proper remedy." (Citations omitted.) Kavarco v. T.J.E., Inc., 2 Conn.App. 294, 298-300 (1984).
The Defendant Pasha argues that the Plaintiffs are not entitled to rescission of the note and mortgage because they have offered no evidence that they made any offer to restore the Defendant to her former position. "As a condition precedent to a rescission, the [plaintiff was] required to allege and prove that [he] had restored or offered to restore [the city] to its former condition as nearly as possible." (Internal quotation marks and citations omitted.) Duksa v. Middletown, 192 Conn. 191, 197 (1984). The Plaintiffs have failed to return the money loaned on the note or reconvey the property to Mrs. Pasha, and therefore they are not entitled to rescission.
"Reformation is not granted for the purpose of alleviating a hard or oppressive bargain, but rather to restate the intended terms of an agreement when the writing that memorializes that agreement is at variance with the intent of both parties . . . Equity evolved the doctrine because an action at law afforded no relief against an instrument [which was] a result of mutual mistake . . . Reformation is appropriate in cases of mutual mistake — that is where, in reducing to writing an agreement made or transaction entered into as intended by the parties thereto, through mistake, common to both parties, the written instrument fails to express the real agreement or transaction . . . [R]eformation is also available in equity when the instrument does not express the true intent of the parties owing to the mistake of one party . . ." (Citations and internal quotation marks omitted.) Derby Savings Bank v. Oliwa, 49 Conn.App. 602, 603-4 (1998). There is no evidence here that the mortgage deed and note in any way do not reflect the intent of the parties such that they should be reformed.
Therefore judgment shall enter for the Defendant Pasha on the Thirteenth Count.
Claims Against the Watertown Defendants
CT Page 21995
Tenth and Eleventh Counts — Recklessness Regarding Issuance of the Certificate of Occupancy
In the Tenth Count the Plaintiffs claim that the Defendants Fusco and Skilton, in their official capacities as employees of the town of Watertown, acted recklessly in representing in the certificate of occupancy that the premises were in substantial compliance with applicable codes when there existed numerous, flagrant, substantial and life threatening defects and deficiencies on the premises.In the Eleventh Count the Plaintiffs claim that pursuant to General Statutes § 52-557n(b)(7) a municipality is liable when its employees issue a permit, where such issuance is discretionary, and its issuance constitutes a reckless disregard for health and safety. The statute states, in pertinent part: "(a) . . . (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law. b) Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from: . . . (7) the issuance, denial, suspension or revocation of, or failure or refusal to issue, deny, suspend or revoke any permit, license, certificate, approval, order or similar authorization, when such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety . . ." "Section 52-557n(b)(7) and (8) exempt towns and municipalities from liability resulting from the negligent inspection of property or negligent issuance of a certification of occupancy unless such issuance or inspection was in reckless disregard of health or safety under the circumstances or unless the defendant had notice of a violation of law." Duffy v. Wallingford, 49 Conn.Sup. 109, 119 (2004). Thus the claims in both the Tenth and Eleventh Counts of the complaint center on the alleged reckless conduct by the Watertown Defendants.
"Recklessness is more than negligence, gross negligence or a failure to take reasonable precautions to avoid injury to others . . . It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action." (Internal citations and quotation marks omitted.) Suffield Development Associates Limited Partnership v. National Loan Investors, L.P., 97 Conn.App. 541, 577, cert. denied, 280 Conn. 942 (2006). "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." (Citations and internal quotation marks omitted.) Franc v. Bethel Holding Co., 73 Conn.App. 114, 137-8, cert. granted on other grounds, 262 Conn. 923 (2002) (appeal withdrawn October 21, 2003).
The Watertown Defendants argue that expert testimony was required to establish both the applicable standard of care of municipal building officials in inspecting premises and issuing certificates of occupancy and breach of that standard. The Plaintiffs recognize that generally "a party claiming malfeasance based on a breach of duty must provide expert testimony as to the standard of professional care." Plaintiffs' Post-Trial Reply Memorandum, p. 1. They argue that there are exceptions where the misconduct is egregious and exhibits a gross want of care. The Plaintiffs argue that where one's conduct rises to the level of recklessness, no expert testimony as to the standard of care is required. "`In this state, decisions indicating that the exception to the general requirement of expert testimony in medical malpractice cases might be applicable have involved foreign objects discovered in the body of a patient after surgery or abnormal injuries sustained during surgery. [ Puro v. Henry, 188 Conn. 301, 308, 449 A.2d 176 (1982)] (needle found in patient after hernia operation); Console v. Nickou, 156 Conn. 268, 274-75, 240 A.2d 895 (1968) (needle left in patient after delivery of child); Allen v. Giuliano, 144 Conn. 573, 575, 135 A.2d 904 (1957) (lacerations to patient's leg in removal of cast); Slimak v. Foster, 106 Conn. 366, 370, 138 A. 153 (1927) (piece of surgical instrument left in patient after nose operation). In other jurisdictions, courts have found the jurors' common knowledge adequate for understanding the basis for the malpractice claim without expert testimony in a variety of circumstances [where the defendant's breach of the standard of care was obvious]. LaRoche v. United States, 730 F.2d 538, 541 and n. 5 (8th Cir. 1984) (placing permanent fillings in teeth that dentist should have known were infected); Carlsen v. Javurek, 526 F.2d 202, 207-08 (8th Cir. 1975) (dispute as to whether nurse-anesthetist had used anesthetic that surgeon had instructed her not to use); Gault v. Poor Sisters of St. Frances Seraph of the Perpetual Adoration, Inc., 375 F.2d 539, 557 (6th Cir. 1967) (administration of wrong medication because containers appeared similar).' Bourquin v. B. Braun Melsungen, 40 Conn.App. 302, 314-15, 670 A.2d 1322, cert. denied, 237 Conn. 909, 675 A.2d 456 (1996)." Boone v. William W. Backus Hospital, 272 Conn. 551, 567-8 (2005). Similarly, in the legal malpractice area, the Appellate Court has held that "no expert testimony is required to establish legal malpractice in a situation where an action has been brought against a party and judgment by default is rendered against that party in the case because his attorney has allegedly done absolutely nothing to protect him. The defendant's alleged failure to take any action whatsoever to protect the interests of the plaintiffs is conduct that involves such an obvious and gross want of care and skill that the neglect would be clear even to a layperson." Paul v. Gordon, 58 Conn.App. 724, 728 (2000). Based upon the foregoing line of cases, since the Plaintiffs presented no expert testimony regarding the standard of care of a building official, an essential element of the Plaintiffs' proof is that the Watertown officials acted recklessly, not only to meet the allegations of the complaint but to avoid the requirement of expert testimony. Yet the evidence does not support such a finding.
The Plaintiffs argue that since the court determined that the Plaintiffs had presented a prima facie case and denied the Watertown Defendants' motion for judgment at the close of the Plaintiffs' case, that is the law of the case as to this issue. However, the court interpreted the Watertown Defendants' motion as a motion for dismissal per Practice Book § 15-8. "The standard for determining whether the plaintiff has made out a prima facie case, under Practice Book § 15-8, is whether the plaintiff put forth sufficient evidence that, if believed, would establish a prima facie case, not whether the trier of fact believes it . . . For the court to grant the motion [for judgment of dismissal pursuant to Practice Book § 15-8], it must be of the opinion that the plaintiff has failed to make out a prima facie case . . . In order to establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove . . . [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiff's] favor." (Citations and internal quotation marks omitted; emphasis in original.) Moss v. Foster, 96 Conn.App. 369, 378 (2006). This is a much different standard of review then when the court, as the trier of fact, reviews the evidence for the purpose of rendering a decision on the merits of the Plaintiffs' claims, and, therefore, the court's decision on the motion to dismiss is not the law of the case for that purpose.
The town building officials inspected the premises a number of times during its construction. Their records indicate that the building footings were inspected on August 2nd, when they were not ready, and approved on August 4, 1999. Drains and waterproofing were inspected and approved on September 20, 1999. The framing, plumbing, and electrical were approved on June 26, 2000. An insulation inspection of August 11, 2000 was unsatisfactory and notes were made regarding the insulation for the overhang and basement ceiling, which were subsequently corrected. In fact, the Defendant Skilton himself inspected the property on at least four occasions. On May 14, 2001 he went to the property for a certificate of occupancy inspection. He noticed numerous deficiencies at that time, including a handrail missing on a certain stairway, lack of a self-closing door to the garage, and the lack of six feet of head room above the basement stairs. He did not notice any deficiency in the upstairs railing or any deficiencies in the siding. Subsequent inspections by the Defendant Skilton revealed that the deficiencies he noted were corrected and he issued a certificate of occupancy on May 30, 2001. The certificate of occupancy certifies that the property "conforms substantially to the requirements of the Building Codes and the Zoning Regulations of the Town of Watertown." The Plaintiffs' expert, although identifying many areas of poor workmanship, identified only a small number of possible code violations: the spacing between the balusters in the upper hall railing, the cutting of the header beam above the stairs to the basement to provide the required six feet clearance, the size of the access hole to the attic was too small, and the lack of a vapor barrier in the concrete floor in the basement and garage. Yet he had not reviewed the building codes prior to completing his report regarding his inspection. He opined that even just building to code could result in an unsafe building. He stated that he believed that the house should not be occupied until several structural conditions were at least temporarily supported and/or repaired. However, the evidence did not establish that there were such significant building code violations in the construction of the house that they posed a significant safety risk to its occupants or that the building officials issued a certificate of occupancy despite knowledge of such dangerous code violations. Although there appeared to be lumber left near the fireplace ash pit which could pose a fire risk, this was not visible to the building inspector. The spacing between the balusters was not grossly over the permitted spacing such that it was likely that a building inspector would have noticed it without actually measuring the spacing. The expert also could not state that the cutting of the header beam above the basement stairs would result in a lack of support for the floor above. The evidence did not establish misconduct by the building officials that could amount to a reckless disregard of the just rights or safety of others. Defendant Skilton inspected the premises a number of times and discovered deficiencies and did not issue a certificate of occupancy until those deficiencies were corrected. At the time he issued the certificate of occupancy he did not believe there were any code violations. As to the Defendant Fusco, there was no evidence, other than a reference to an inspection of the property done by him prior to those of Defendant Skilton, to support the claims against him.
The Plaintiffs argue that, in light of the circumstances that "the structure is amateur built" and that there were ten potential code violations found at the time of inspection town officials should have been "alerted . . . that there were other issues with the subject house." The Plaintiffs also argue that the fact that the paperwork from the other inspections "was nearly incomprehensible or nonexistent," supports a finding that willfully ignoring all of these warnings together constitutes a conscious disregard for safety rising to the level of recklessness. This court cannot reach such a conclusion. The fact that the building officials did not conduct a more thorough inspection or did not maintain comprehensive records, does not rise to the level of recklessness. "[R]eckless conduct tends to take on the aspect of highly unseasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent . . . 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 . . ." (Citations and internal quotation marks omitted.) Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn.App. 22, 38 (2003).
Judgment shall enter for the Defendants Richard Fusco, Joel Skilton and the Town of Watertown on the Tenth and Eleventh Counts.
Twelfth Count — Recklessness as to the Town of Watertown
In the Twelfth Count of the complaint the Plaintiffs claim that the Town of Watertown "itself was reckless in the performance of its duties by: a) Properly hire its employees as required by Conn. Gen. Stat. § 29-260, § 29-297 and § 29-268; b) Failing to require the proper licensure and education of building inspectors; c) Failing to adopt and follow reasonable hiring/employment policies; d) Failing to properly and/or adequately supervise its employees." The Plaintiffs submitted no evidence to support these claims. No evidence was submitted regarding the Town's hiring or employment policies or how it supervised its employees.
Judgment shall enter in favor of the Defendant Town of Watertown on the Twelfth Count.
Conclusion
Judgment shall enter in favor of the Defendants in this matter.