Dec 14 2016

Connecticut Law Update, December 2016

Jury Instructions In Sex Abuse Case—CT Supreme Court Decision

Doe v. Boy Scouts of America Corporation, 323 Conn. 303 (2016). The plaintiff, a former member of a youth scouting organization alleged that he was sexually abused as a child by his patrol leader and asserted claims of negligence, recklessness and unfair trade practices against the organization. Plaintiff prevailed in a jury trial. The defendant appealed and the appeal was transferred to the Connecticut Supreme Court. The defendant argued that the trial court should have instructed the jury that it could not be held responsible for the sexual abuse of the plaintiff unless he proved that the defendant’s own conduct increased the risk that the plaintiff would be subjected to such abuse. The Supreme Court agreed, reversed and remanded for a new trial. “These situations arise where . . . the actor’s own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable man would take into account.” In these situations, it is enough that the actor should have realized the likelihood that his conduct, in providing the opportunity and conditions conducive to such activities, would create an increased risk of criminal conduct. Patrick J. Day, pday@morrisonmahoney.com

Dental Malpractice—Sufficiency of Opinion Letter

Doyle v. Aspen Dental, Superior Court of Connecticut, 2016 WL 3026756. In this dental malpractice action, the Superior Court held that the sufficiency of a statutorily required medical malpractice expert opinion letter must be founded upon an objective review of the evidence and allegations before the court, rather than solely by the subjective allegations within a complaint. The plaintiff’s complaint against a non-board certified oral and maxillofacial surgeon and medical facility included an opinion letter authored by a general dentist. The Superior Court held that the oral surgeon, though not board certified, held himself out as a specialist in oral and maxillofacial surgery. For this reason, the plaintiff was required to present an opinion letter by a board certified oral and maxillofacial surgeon rather than a general dentist. The plaintiff’s failure to provide an opinion letter authored by a similar healthcare provider denied the court personal jurisdiction over the defendants, requiring the dismissal of an action. The Superior Court noted that making such a determination solely upon the allegations of the complaint would potentially allow plaintiff’s attorneys to circumvent the statutory opinion letter requirements. The court emphasized that “it is doubtful the legislature would have intended to allow those precise standards to be avoided by the drafting skills of counsel in framing a malpractice complaint.” Kyle W. Deskus, kdeskus@morrisonmahoney.com

Uninsured Motorist Claim—Late Notice

Shaw v. Geico General Ins. Co., Superior Court of Connecticut, 2016 WL 4203044. The Plaintiff asserted an uninsured motorist claim but failed to notify the insurer within 30 days of the incident as required under the insurance policy. The Superior Court denied the insurer’s Motion to Dismiss based on lack of subject matter jurisdiction. The court held that the plaintiff’s delay in timely notifying the insurer of the claim did not bar her from recovery because the insurer must prove that the plaintiff’s delayed notice prejudiced the insurer. The court also held that a “condition of suit” provision within an insurance policy (such as a prompt notice requirement) cannot be used to define the court’s jurisdiction within the context of a motion to dismiss or redefine controlling Connecticut law on the construction of insurance contracts. John O. Sheehy, jsheehy@morrisonmahoney.com

 

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