Opinion
No. FST CV 06 4008940 S
May 16, 2007
MEMORANDUM OF DECISION RE APPLICATION TO VACATE ARBITRATION AWARD; APPLICATION TO CONFIRM ARBITRATION AWARD
I. Background
The plaintiff Peter Reed has filed an application to vacate an arbitration award dismissing Reed's claim for damages arising from personal injuries. Also before the court is the defendant Ridgefield Auto Park, LLC's (Ridgefield Auto) application to confirm the same arbitration award. The award in question was rendered in the form of an "Arbitration Decision" dated April 4, 2006 by Attorney Thomas Barrett.
The applications were initially argued before the Honorable William B. Lewis who became ill before rendering a decision. The matters were then reclaimed to the Short Calendar and argued again on February 1, 2007.
Reed initially filed a complaint in Superior Court, but in 2005 he and Ridgefield Auto agreed to submit the matter to binding arbitration which took place on a day in December 2005 and another day in January 2006 before Attorney Barrett.
Reed alleged that in 2002 he was a patron at a Citgo gasoline station on Danbury Road in Ridgefield, Connecticut owned and operated by Ridgefield Auto and while pumping gasoline into his motor vehicle was sprayed in the face by gasoline coming from a break in the upper part of the pump hose causing permanent injury to his eye. The only evidence in the record as to the condition of the hose was the testimony of Ridgefield Auto's owner, Peter Canale that the next morning he found a "pinhole leak" in the upper section of the hose.
Reed's application to vacate is made pursuant to Connecticut General Statutes § 52-418. While not explicitly set forth in the application, counsel for Reed at oral argument confirmed that the application relies on Sections 52-418(a)(3) and (4) which mandate that an arbitration award be vacated if the Superior Court finds "(3) . . . the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) . . . the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made."
The plaintiff's claim under Section 52-418(a)(4) is that the arbitrator applied the doctrine of res ipsa loquitur in a mistaken fashion so that controlling legal principles were not followed. The claim under Section 52-418(a)(3) is that the arbitrator refused to reopen the record to allow further evidence after the arbitration hearing had been concluded.
Ridgefield Auto's application to confirm is brought pursuant to General Statutes § 52-417 which authorizes the Superior Court to confirm an award if the application is made within one year of the rendering of the award unless the award is vacated, modified or corrected pursuant to Sections 52-418 or 52-419.
II. Standard of Review
The Connecticut Supreme Court has recently restated the legal principles regarding vacating an arbitration award.
This court has for many years wholeheartedly endorsed arbitration as an effective alternative method of settling disputes intended to avoid the formalities, delay, expense and vexation of ordinary litigation . . . When arbitration is created by contract, we recognize that its autonomy can only be preserved by minimal judicial intervention . . . Because the parties themselves, by virtue of the submission, frame the issues to be resolved and define the scope of the arbitrator's powers, the parties are generally bound by the resulting award . . . Since the parties consent to arbitration, and have full control over the issues to be arbitrated, a court will make every reasonable presumption in favor of the arbitration award and the arbitrator's acts and proceedings . . .
Bridgeport v. Kasper Group, Inc., 278 Conn. 466, 473-74 (2006) quoting from O G/O'Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 145-46 (1987). In Bridgeport v. Kasper Group, Inc., supra, 278 Conn. 474, the Connecticut Supreme Court also noted it recognized three grounds for vacating an arbitration award: when (1) the award rules on the constitutionality of a statute, (2) it violates clear public policy, or (3) it contravenes one of the proscriptions of Section 52-418. See also Garrity v. McCaskey, 223 Conn. 1, 6 (1992).
Reed's application to vacate cites a violation of public policy but the alleged grounds for the violation are the same as those claimed to violate Sections 52-418(a)(3) and (4). This court concludes that the relevant public policy is contained in Section 52-418 and Reed's public policy argument ultimately stands or falls on whether the statute was violated.
When the issue is vacating an award under Section 52-418(a)(4) because of imperfect execution the party seeking to vacate must show more than errors of law, it must show that "the award reflects an egregious or patently irrational rejection of clearly controlling legal principles." Garrity v. McCaskey, supra, 223 Conn. 10, 11. When the issue is vacating an award under Section 52-418(a)(3) because an arbitrator refused to hear evidence the party seeking to vacate must show that because of some ruling the party was "deprived of a full and fair hearing." O G/O'Connell Joint Venture v. Chase Family Limited Partnership No. 3, supra, 203 Conn. 149.
III. Discussion A. The claim to vacate under Section 52-418(a)(4).
Reed contends that his claim was predicated on the doctrine of res ipsa loquitur (literally, the matter speaks for itself) and that the Arbitrator ignored or totally misapplied the doctrine resulting in a decision which was in manifest disregard of the law.
The doctrine of res ipsa loquitur allows the fact finder to infer that negligence occurred even though there is no direct evidence of negligence. It is an application of the principle that negligence can be proved by circumstantial evidence. Whether res ipsa loquitur applies depends on whether the evidence shows that the defendant's negligence was the most plausible explanation for the occurrence or injury. It is enough that the facts reasonably permit the conclusion that the defendant's negligence is the more probable explanation. Giles v. New Haven, 228 Conn. 441, 446-48 (1994). In his post-hearing submission to the Arbitrator the plaintiff contended that the situation that occurred while he was pumping gasoline at defendant's gas station met all the requirements permitting the invocation of the res ipsa loquitur doctrine, i.e., (1) that the gas pump and hose were such that ordinarily no injury would result unless from careless maintenance or inspection, (2) that the defendant had responsibility and the power and control over the pump and hose, and (3) that while the plaintiff used the pump and hose this was expected and anticipated at a public self-service gas station. The Arbitrator took note of Reed's arguments. In his Decision the Arbitrator stated:
In his post hearing memoranda, the plaintiff relies on the doctrine of res ipsa loquitor to support his claim against the defendants. This doctrine, if property invoked here, would give me the option to infer the negligence of the defendants, if I so chose. Essentially, the doctrine, which is an evidentiary principle, allows the trier to infer negligence from circumstantial evidence where no direct evidence of negligence has been introduced. In order for this doctrine to apply, there is an expectation that the plaintiff will first introduce some evidence as to the alleged negligence of the defendants. The plaintiff must introduce enough evidence to lead the trier to infer that the defendants' negligence is the most plausible explanation for the accident; that it was more likely than not that the defendants were negligent. Giles v. The City of New Haven, 228 Conn. 441 (1994). With the introduction of no evidence as to the defendant's failure to inspect, maintain and repair the subject hose before the incident in question, no such reasonable inference can be made. It would be fundamentally unfair to infer the negligence of the defendants in this case. There was no evidence of negligence produced at the hearings, including through any questioning of Mr. Canale who was available for examination. The defendants had no reason to question Mr. Canale in light of the absence of any evidence to question him about. Plaintiff cannot then fairly argue that the defendants should have anticipated that he would ultimately rely on res ipsa loquitur, without the introduction of evidence as to negligence, and then argue that the defendants should be punished by a ruling that they should have questioned Mr. Canale to rebut allegations not only not proven, but not even addressed. There are a number of possible explanations why this hose began to leak at the moment it did, including explanations which would not legally implicate the defendants. Those possible explanations are all a matter of conjecture for me. Without any evidence of negligence I can't reasonably infer that the defendants' alleged negligence is the most likely cause of the plaintiff's injury. This may be a case where there was an unfortunate accident with an injury, but without any legally culpable misconduct by the defendants. I find the issue of liability I favor of the defendants. (Emphasis in original.)
Reed concedes that the Arbitrator's description of the doctrine of res ipsa loquitur is accurate but is highly critical of the statement that "for this doctrine to apply, there is an expectation that the plaintiff will first introduce some evidence as to the alleged negligence of the defendant." (Emphasis in original.) This statement, argues Reed, evidences both the Arbitrator's recognition of the doctrine and his manifest disregard of it because the doctrine permits an inference of negligence without any direct evidence of negligence.
Ridgefield Auto contends otherwise, relying on Barretta v. Otis Elevator, 242 Conn. 169 (1997) the defendant points out that the doctrine permits an inference of negligence but does not compel such an inference. Id., 173. "The doctrine of res ipsa loquitur is a rule of common sense and not a rule of law which dispenses with proof of negligence." It is a convenient formula for saying that a plaintiff may, in some cases, sustain the burden of proving that the defendant was more probably negligent than not . . . Id. [Quoting Schurgast v. Schumann, 156 Conn. 471, 479 (1968)]. The defendant argues that the Arbitrator made a finding that the plaintiff produced no evidence of negligence and that such a finding, which is not reviewable by this court, precludes the use of the res ipsa loquitur doctrine.
The court finds in favor of the defendant on this point. The record reveals no evidence of the defendant's negligence. The doctrine of res ipsa loquitur is designed to cover situations where the plaintiff, while unable to prove specific acts of negligence, "is able to produce evidence that the accident at issue is of the type that would not ordinarily occur without some, albeit unspecified, carelessness by the defendant. The doctrine of res ipsa loquitur does not extend to situations in which the plaintiff's own evidence provides no basis on which to conclude that this defendant has been negligent." Barretta v. Otis Elevator Co., supra, 242 Conn. 176 (emphasis in original.) In this case the principal of Ridgefield Auto testified that he found a "pinhole" in the hose the morning after Reed was sprayed. This is the only evidence as to how the incident occurred, and the Arbitrator could reasonably have found that it was not evidence from which could be drawn an inference of the defendant's negligence, and therefore, the plaintiff had failed to prove the defendant's negligence was more likely than not to have caused the plaintiff's injury. Contrary to the argument of plaintiff the Arbitrator did not impose a requirement that there be some direct evidence of negligence. Rather he said there had to be some evidence "as to" the alleged negligence. When he found there was not even circumstantial evidence of negligence there was support for his ruling. Other cases have arrived at the same result in rejecting the application of res ipsa loquitur in cases where gas station patrons were sprayed with gasoline from a hole in the hose. See Troisi v. Merit Oil Co., 208 AD.2d 615, 617 N.Y.S.2d 347 (N.Y.App.Div.2d Dep. 1994); Porter v. Mid-State Oil Co., 89 N.C.App. 519, 366 S.E.1d 245 (1988).
The court also finds that the plaintiff has not established that the Arbitrator ignored controlling legal principles in an egregious or patently irrational fashion. His decision clearly reflects otherwise. While this court has found the decision to be consistent with Connecticut law on the use of the res ipsa loquitur doctrine, even if this court's conclusion is wrong in this regard there can be no doubt that the Arbitrator sincerely grappled with the issue, and therefore, the plaintiff has not met the standard for vacating an award under Section 52-418(a)(4).
Furthermore the Connecticut Supreme Court has consistently held that legal errors by arbitrators are not grounds in vacating an arbitration award. Neither party has questioned the fact that this was an unrestricted submission of the dispute to arbitration. In such cases courts will not review the matter for errors of law. See Harty v. Cantor Fitzgerald Co., 275 Conn. 72, 80 (2005); Industrial Risk Insurers v. Hartford Steam Boiler Inspection Insurance Co., 273 Conn. 86, 93 (2005); Garrity v. McCaskey, supra, 223 Conn. 10, 11 ("we do not review an arbitrator's decision for mere errors of law"; there must be an extraordinary lack of fidelity to established legal principles).
B. The claim to vacate under Section 52-418(a)(3).
According to the record and representations of counsel before this court excerpts of a transcript of the deposition of Peter Canale, the owner of Ridgefield Auto, were prepared and submitted by the plaintiff as an exhibit in lieu of live testimony on the second and last day of the arbitration proceeding, January 6, 2006. At that time the Arbitrator inquired of counsel for both parties whether either would like to submit the entire transcript, and according to the Arbitrator, both declined. Exhibit G, Def. Memo in Opposition to Application to Vacate, July 6, 2006, (hereafter, "Def. Mem. Opp.") Shortly thereafter the hearing was closed.
There is some disagreement between counsel over the facts leading up to the second day, but it appears certain that Mr. Canale was present and available to testify on the second day.
According to the Arbitrator at the end of the proceedings on January 6, the attorney for Reed asked whether there were any specific issues the Arbitrator wished to have briefed, and the Arbitrator responded that he wished the issue of notice to be briefed.
On January 11, 2006 Reed's attorney wrote the Arbitrator and Ridgefield Auto's attorney requesting that the entire Canale deposition be included as an exhibit because "facts relating to issues of control and notice . . . must be introduced." Ex. C, Def. Mem. Opp. Ridgefield Auto objected to reopening the record. Reed moved to open the evidence, and both sides briefed the issue to the Arbitrator who denied the motion to open by letter dated February 2, 2006. That letter decision stated:
I have read the briefs submitted by the parties as to the plaintiff's Motion To Open Evidence. I agree with defendant's counsel that there is no mistake or inadvertence here. Since the defendant has objected to the motion, I must assess the overall fairness to both parties of any action on the plaintiff's motion. The plaintiff had ample opportunity to present his case as outlined in the defendant's motion. I do take exception to defense counsel's mischaracterization of what occurred at the close of the second hearing. I did not, sua sponte, ask plaintiff's counsel to address the issue of notice in her brief. What actually happened is that plaintiff's counsel asked whether I wished her to address any specific issue in her brief At that time, I suggested that she address the issue of notice. I also specifically asked both counsel when Canale's transcript excerpts were marked as evidence whether either would like to submit the entire transcript as evidence. Both replied in the negative.
The motion is denied. Plaintiff's counsel has until 2/14/06 to file her closing brief, the defendant to reply by 2/24/06, and plaintiff's counsel to rebut, if desired by 3/3/06. If the parties require additional time they should confer and advise me of the agreed upon changes to the above briefing schedule.
Ex. G, Def. Mem. Opp. (Emphasis in original.) In his motion to vacate Reed contends that Section 52-418(a)(3) is involved because the Arbitrator ruled against allowing portions of Canale's deposition be submitted as an exhibit.
The plaintiff argues that his case was one sounding in res ipsa loquitur throughout and his attorney argues that she was shocked when the Arbitrator requested briefing on the issue of notice at the end of the second day of proceedings. Therefore, it is contended that it was not foreseeable by the plaintiff that evidence on notice would be required and the plaintiff should not be penalized by only seeking to submit additional evidence at the last moment.
Ridgefield Auto strikes at the credibility of the argument in several ways. First it argues that the plaintiff's claim was always a premises liability case both in the Superior Court and as submitted in arbitration and that the issue of defendant's notice of defect was an element of the case from the beginning. The defendant points to the plaintiff's designation of the case on Form JD-CV-1c when initially filed as "T12," a premises liability case not involving snow or ice (see Ex. L, Def. Mem. Opp.) and further points out the amended complaint which specifically alleged that the defendant knew or reasonably should have known of the condition of the pump hose. Second, the plaintiff's motion to open evidence stated that Mr. Canale's deposition transcript contained testimony "with respect to issues of notice and control . . . [which] were inadvertently omitted from deposition testimony previously submitted." Ex. F, Def. Mem. Opp. Ridgefield Auto argues that evidence of notice would not have been needed, not "inadvertently omitted," if res ipsa loquitur had been relied upon throughout. Furthermore, when the Arbitrator in response to an inquiry, suggested notice as a subject for briefing Reed's counsel did not suggest that notice was not an issue and indeed in her January 11, 2006 letter it is conceded that the issue of notice was relevant.
As noted before the Connecticut Supreme Court dealt with a challenge to an arbitration award on § 52-418(a)(3) grounds in O G/O'Connell Joint Venture v. Chase Family Limited Partnership No. 3, supra. In upholding the award the court noted the existence of a presumption in favor of the arbitration award and the arbitrator's acts and proceedings; id., 203 Conn. 146; and that arbitrators are not expected to know all the "subtleties" of "evidentiary rules." Id., 203 Conn. 149. O G/O'Connell also held that to establish that an evidentiary ruling rose to a level prohibited by Section 52-418(a)(3) a party must show "he was in fact deprived of a full and fair hearing before the arbitration panel." Id. More recently, the Connecticut Supreme Court has noted with approval that federal courts have held, in construing the nearly identical provision in the Federal Arbitration Act, 9 U.S.C. § 10(a)(3) that a hearing is fair if each of the parties has "an adequate opportunity to present its evidence and argument." Bridgeport v. Kasper Group, Inc., 278 Conn. 466, 475-76 (2006) [quoting Tempo Shain Corp. v. Bertek, Inc. 120 F.3d 16, 20 (2d Cir. 1997)].
In this case the Arbitrator specifically found that the plaintiff "had ample opportunity to present his case," and that finding is entitled to some weight. However, even if the court looked at the matter de novo there is substantial support for the conclusion that plaintiff had a full and fair opportunity to present his case. There is simply too much evidence otherwise to accept at face value the assertion that plaintiff always was prosecuting a res ipsa loquitur case. In addition, to the pleading's allegations of notice and the designation as a premises liability case, the plaintiff is often referred to as a "business invitee" phraseology that falls squarely within a premises liability case approach. Furthermore, if as the plaintiff suggests the Canale deposition transcript contained evidence pertaining to notice of the defect, that would indicate plaintiff was obtaining evidence to prosecute a premises liability case. Lastly there is not a hint of surprise or a claim of prejudice that the case was being treated as a premises liability case in either plaintiff's counsel's January 11, 2006 letter or the subsequent motion to open evidence. Rather, it is termed that the failure to show evidence of notice was an inadvertence.
This court finds that Reed had at least two opportunities to put in evidence of notice: the first being the opportunity to examine Canale on January 6, 2006 or introduce the full deposition transcript, and the second being when the Arbitrator asked again if either party wished to submit the full transcript.
Finally, in Bridgeport v. Kasper Group, Inc., supra, the Connecticut Supreme Court emphasized that an arbitrator's decision to exclude evidence must be shown to substantially prejudice the party seeking to vacate an award under Section 52-418(a) citing several federal cases where it was shown that the excluded evidence was central and decisive to the issue at hand. 278 Conn. 476-78; see also Krassner v City of Ansonia, 100 Conn.App. 203 (2007) In Kasper Group, which affirmed the vacating of an award, the evidence involved included testimony given at a criminal trial after the arbitration hearings had concluded. Neither of these factors is present in this case. The testimony excluded here existed at the beginning of the arbitration process and, as noted, there were several opportunities to present it. Moreover, the plaintiff has made no showing in oral argument to the court or in the papers submitted that Mr. Canale's testimony would be decisive of any issue. There is no description of his deposition testimony, and only the excerpts considered by the arbitrator are before this court. Therefore, there is no basis for determining that the offered testimony was material, or that it might change the result.
IV. Conclusion
For the reasons stated herein, the plaintiff's application to vacate is denied and the defendant's application to confirm is granted.