Opinion
No. 26 33 11
September 19, 1990
MEMORANDUM OF DECISION
This is an attorney malpractice action. The plaintiff is Maria Garcia ("Garcia"). The defendants are Alan Solomon and John Stanton, who conducted a law partnership with the firm name of Solomon and Stanton, and Larry H. Lewis who was employed by that firm as an attorney.
The plaintiff's amended complaint argues, inter alia, that on or about August 29, 1985, while walking down the steps in the Board of Education Building in Meriden, she fell and sustained personal injuries "as a result of the defective and dangerous condition of the steps"; the defendants deny this. Her allegation that after August 29, 1985 she engaged the defendants to render legal services for her in connection with this fall is admitted. It is, however, denied as she alleges, that she did so "specifically to bring an action against the City of Meriden and responsible parties, and [that] the defendants, for valid consideration agreed to render such services." It is admitted that "as a condition precedent to the bringing of an action against the City of Meriden, defendants as plaintiff's representatives were required to give notice in the form required by Conn. Gen. Stat. 7-465." The plaintiff, in a separate paragraph, next alleges that "On or about September 26, 1985, the defendants endeavored on [her] behalf to give notice to the City of Meriden in accordance with Conn. Gen. Stat. 7-465" and that a copy of the notice is appended "herewith as Exhibit B and made part hereof." The defendants admit that allegation "insofar as [it] alleges that on September 25, 1985, the defendants gave notice on plaintiff's behalf to the City of Meriden in accordance with C.G.S. 7-465 and that a copy of said notice is attached to plaintiff's amended complaint" but deny the remaining allegations of that paragraph.
Conn. Gen. Stat. 7-465 entitled "Assumption of liability for damages caused by employees. Joint liability of municipalities district department of health or regional planning agency" provides in part: ". . . (a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, except firemen covered under the provisions of section 7-308, all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person's civil rights or for physical damages to person or property, except as hereinafter set forth. . . . No action for personal physical injuries or damages to real or personal property shall be maintained against such municipality and employee jointly unless such action is commenced within two years after the cause of action therefor arose nor unless written notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk of such municipality within six months after such cause of action has accrued."
The notice (Exhibit B) was the following: "CITY CLERK CITY OF MERIDEN CITY HALL MERIDEN, CT 06450
Dear Madam:
May this serve to give you notice, as by the Statute required of personal injuries sustained on defective steps in the City of Meriden, the particulars of which are as follows:
PERSON INJURED: MARIA GARCIA, 90 Olive Street, Meriden, Connecticut.
DATE: Mrs. Garcia was walking down the steps in the Board of Education Building in Meriden, Connecticut. The inside steps were heading towards the entrance on Liberty Street.
CAUSE: The fact the steps were defective, where a bigger step led to a smaller step and could not be seen easily by a person walking down the steps. It is a fact, that this is not the first person who fell down at that particular location, and the steps appear to be in a hazardous and defective condition. Said steps maintained in the manner above constituted a defect and nuisance to the safety of the people in the immediate area.
INJURIES: Injuries to her leg and knees with possible damage to her Achilles Tendon, the extent of which have not as yet been determined.
The City of Meriden and its officers had long had notice and knowledge, or with reasonable diligence, should have had notice and knowledge of the condition of the steps and the fact that it was not maintained, and they wholly neglected to remedy said unsafe condition. Maria Garcia has been obliged and will be obliged, in the future, to expend large sums of money for medical care and treatment, and as a consequence of the defect and nuisance complained of, shall look to the City of Meriden for damages as provided by law.
MARIA GARCIA
BY: LARRY H. LEWIS Her Attorney
The defendants deny the plaintiff's allegation that, "The defendants in endeavoring to provide legal representation to plaintiff did not exercise the degree of care and skill ordinarily exercised by attorneys practicing their profession, in that the notice given by defendants to the City of Meriden on behalf of plaintiff was materially defective in that it failed to comply with Conn. Gen. Stat. 7-465, because it failed to contain written notice of the intention of plaintiff to commence an action against the City of Meriden for personal injuries sustained on its property." It is also denied that, "As a result of the negligence of the defendants the plaintiff has suffered damages in that she has suffered a potential loss of her underlying claim against the City of Meriden arising out of a fall on August 29, 1985, and thus may be deprived of her right to monetary damages for injuries and losses sustained as a result of [that] fall." The plaintiff claims damages in her prayer for relief.
At the outset of the trial this court granted, upon the agreement of counsel, the plaintiff's motion to bifurcate.
The plaintiff's "Motion To Bifurcate" alleged the following: Plaintiff in the above-captioned action hereby respect fully moves that the trial in this action be heard and ruled upon as to liability and damages separately. In support hereof the undersigned represents as follows: 1. The instant action sounds in legal malpractice against the named defendant. 2. The action is predicated upon the defendant's legal representation of the plaintiff in an action against the City of Meriden. 3. Plaintiff appearing pro se, settled the action against the City of Meriden. 4. Liability in the present action is contingent, in the first instance, upon a showing of liability as against the City of Meriden, and secondly as against the defendant in this action. 5. Plaintiff's claimed damages are identical as to both actions and due to the extent of her damages, the interests of judicial economy suggest that testimony and evidence on damages should await the court's ruling as to liability.
Accordingly, this court tried the issue of liability only. At the trial the plaintiff offered testimony through witnesses and exhibits. When the plaintiff rested, the defendants moved for dismissal in accordance with Practice Book 302. The court reserved decision on that motion at that time and herein determines that it is to be and is granted.
The court was asked to and has taken judicial notice of the file with underlying action of Maria Garcia v. City of Merident, et al (Docket #259219, Superior Court, New Haven Judicial District). See State v. Lenihan, 151 Conn. 552, 554, 200 A.2d 476 (1962). Judicial notice is taken of the case of Maria Garcia v. City of Meriden, et al (#259219, Superior Court, New Haven Judicial District). See State v. Lennihan, 151 Conn. 552, 554, 200 A.2d (1962). In June 1987 the law firm representing the plaintiff Maria Garcia in the instant legal malpractice action instituted a separate action on her behalf against the City of Meriden and Leo Kavia, an employee of the City of Meriden, seeking money damages for injuries and losses allegedly arising out of her fall of August 29, 1985. Defendants' counsel in that case are not the same counsel as those in the instant malpractice action. That action was in three counts: negligence, nuisance and one under Conn. Gen. Stat. 7-465. To the third count of that action brought claiming liability under Conn. Gen. Stat. 7-465, defendants' counsel in that case interposed a motion to strike. That motion alleged that the third count should be struck "for the reason that said fails to state a claim upon which relief can be granted." In particular, that motion alleged that the third count of the plaintiff's complaint, "purportedly" founded upon Conn. Gen. Stat. 7-465, failed to "properly plead the requisite notice essential to an action founded upon said statute." The defendants' memorandum of law in support of the motion to strike states as its basis the following: "The third count of the plaintiff's complaint is purportedly founded upon Connecticut General Statutes 7-465. One of the conditions precedent to such a cause of action is the presentation of proper notice to the municipality, in a timely fashion, of particular aspects of the plaintiff's claim. One of the necessary allegations of a cause of action founded upon Connecticut General Statutes 7-465 is that the aforementioned notice has been given to the municipality. Practice Book 185 sets forth precisely how the giving of notice must be pled. It mandates as follows: 185 pleading special matters — pending notice Whenever in an action of tort or upon a statute the plaintiff is compelled to allege the giving of a notice required by statute, he shall either recite the same in his complaint or annex a copy thereto. The plaintiff has not complied with Practice Book 185, therefore, an essential element of the plaintiff's cause of action under Connecticut General Statutes 7-465 has not been properly pled thereby rendering said count legally insufficient." The file does not indicate that any action was ever to be taken on this motion to strike. Rather, it does disclose that the plaintiff filed a "Revised Complaint" in which she revised paragraph 14 of the third count as follows: "14. On On September 30, 1985 notice of the claim upon which action is found was presented to the Clerk, City of Meriden, in accordance with Section 7-465 of the Connecticut General Statutes, a copy of which is attached herewith." Later, on January 29, 1990, her counsel in that case was granted permission by the court to withdraw their appearance. Thereafter, on February 5, 1990, the plaintiff filed her pro se appearance. On March 13, 1990, the complaint was withdrawn as to all the defendants in that case over the signature of the pro se defendant. There was evidence in the instant legal malpractice action that moneys were paid to the plaintiff on the occasion of her withdrawal of Docket #259219.
Practice Book 302 which is entitled "Dismissal in Court Cases for Failure to Make Out a Prima Facie Case" provides: "If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced his evidence and rested his cause, the defendant may move for judgment of dismissal, and the court may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion has not been made."
In making this motion for dismissal under Practice Book 302 for the plaintiff's failure to make out a prima facie case, the defendants claim: (1) that there is no showing that the allegedly "materially defective" notice was such that it failed to comply with Conn. Gen. Stat. 7-465 as claimed and they cite Fraser v. Henninger, 175 Conn. 52, 376 A.2d 406 (1977), as dispositive on that issue, (2) that there is no evidence of any violation of the standard of care required of the defendants as attorneys in this case and that such evidence should have been given by expert testimony, (3) that there was no evidence that the claimed defective notice had anything to do with any damages allegedly caused to the plaintiff, and (4) that there is no evidence as to what the plaintiff got in settlement of the underlying action resulting from the content of the alleged defective notice.
In resisting the defendants' 302 motion and contending that she has made out a prima facie case, the plaintiff claims (1) that the 7-465 notice is defective as alleged and that Fraser v. Henninger, is inapposite, (2) that expert testimony is not needed where the trier possesses the expertise to assess the claimed violation of the standard of care involved, (3) that this court should take judicial notice of the complaint in the underlying case by the plaintiff Maria Garcia against the City of Meriden, et als., and in doing so, (4) should consider the denial by the defendants in that case of the giving of proper notice pursuant to Conn. Gen. Stat. 7-465 as a judicial admission against the defendants in the instant case (Docket #263311), that although she must show that she would have been successful in prosecuting the underlying action, the defendants' breach of their duty to her by giving the notice which was defective under Conn. Gen. Stat. 7465, decreased her bargaining power in her settling that action.
The parties have asked that this court take judicial notice of the Superior Court file (Docket #259219, Superior Court, New Haven Judicial District) and it has done so.
In Maria Garcia v. City of Meriden, et al (Docket #259219), the plaintiff's "Revised Complaint" alleged: 14. On September 30, 1985 notice of the claim upon which action is found was presented to the Clerk, City of Meriden in accordance with Section 7-465 of the Connecticut General Statutes, a copy of which is attached herewith. The answer of the defendants City of Meriden and Leo Kania in that action denied paragraph 14.
"'A motion for judgment of dismissal has replaced the former motion for nonsuit for failure to make out a prima facie case. Compare Practice Book 302 with Practice Book, 1963, 278; See Lukas v. New Haven, 184 Conn. 205, 210 n. 3, 439 A.2d 949 (1981). When such a motion has been granted, the question is whether sufficient facts were proved to make out a prima facie case. Pignatario v. Meyers, 100 Conn. 234, 239-40, 123 A. 263 (1924). To state it another way, a judgment of dismissal is only proper "when the evidence produced by the plaintiff, if fully believed, would not permit the trier in reason to find the essential issues on the complaint in favor of the plaintiff." Minicozn v. Atlantic Refining Co., 143 Conn. 226, 230, 120 A.2d 924 (1956). The evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to him, and every reasonable inference is to be drawn in his favor. Ace-High Dresses, Inc. v. J. C. Trucking Co., 122 Conn. 578, 579, 191 A. 536 (1937). A party has the same right to submit a weak case as he has to submit a strong one. Fritz v. Gaudet, 101 Conn. 52, 53, 124 A. 841 (1924). See Lukas v. New Haven, supra, 210-11; Crowell v. Palmer, 134 Conn. 502, 505, 58 A.2d 729 (1948); Maltbie, Conn. App. Proc. 215 and 217; Stephenson, Conn. Civ. Proc. (2d Ed.) 192f.' Hinchliffe v. American Motors Corporation, 184 Conn. 607, 609-10, 440 A.2d 810 (1981." Angelo v. Tomasso, Inc . v. Annor Construction Paving, Inc., 187 Conn. 544, 547 48, 447 A.2d 406 (1982), see Logan v. O'Neill, 187 Conn. 721, 728-29, 448 A.2d 1306 (1982). Whether the plaintiff made out a prima facie case presented a question of law for the court. Angelo Tomasso, Inc. v. Armor Construction Paving, Inc., supra, 561." Falker v. Sampieri, 190 Conn. 412, 418-419, 461 A.2d 681 (1983); see Hinchliffe v. American Motors Corporation, 184 Conn. 607, 609-610, 440 A.2d 810 (1981).
In Cormier v. Fugere, 185 Conn. 1, 440 A.2d 820 (1981), which involved a dismissal under Practice Book 302, our Supreme Court noted at page 9:
"In considering the case presented on a motion for [judgment of dismissal, the trial court should not be concerned] with the sufficiency of the complaint in point of law; there are other ways provided to test that matter. The sole question before the trial court was whether, upon the allegations of the complaint and the admissions and denials in the subsequent pleadings, sufficient facts had been proved to make out a prima facie case." (Citations omitted.) Pignatario v. Meyers, 100 Conn. 234, 239, 123 A. 263 (1924); Hinchliff v. American Motors Corporation, 184 Conn. 607, 621 n, 440 A.2d 810 (1981)."
It is appropriate at this point to refer briefly to the standard of care involved. An attorney who undertakes to represent a client impliedly promises that he will execute the business entrusted to him to his professional management with a reasonable degree of care, skill and dispatch. Slade v. Harris, 105 Conn. 436, 441, 135 A. 570 (1927). As well as representing that he possesses a reasonable degree of skill, the level of his duty is that he will exercise the same degree of care, skill and diligence which other attorneys in the same or similar locality and in the same line of practice would exercise under similar circumstances. Bent v. Green, 39 Conn. 416, 420, 466 A.2d 32, (1983). An acknowledged commentator in the area of legal malpractice has said that "[D]etermining the reasonableness of the the lawyer's conduct requires consideration of the following criteria: the requisite skill and knowledge; the degree of skill and knowledge to be possessed and exercised; the effect of local considerations and custom; and any special abilities possessed by the lawyer." 1 Mallen and Smith, Legal Malpractice (3d Ed.) 15.2. In evaluating the adherence to the standard of care, our Supreme Court has very recently said: "[A]s a general rule for a plaintiff to prevail in a legal malpractice case in Connecticut, he must present expert testimony to establish the standard of proper professional skill or care. Dunham v. Dunham, 204 Conn. 303, 317, 528 A.2d 1123 (1987); Pearl v. Nelson, 13 Conn. App. 170, 173, 534 A.2d 1257 (1988); Bent v. Green, 39 Conn. Sup. 416, 420, 466 A.2d 322 (198)." Davis v. Margolis, 215 Conn. 408, 416, ___ A.2d ___ (1990); Somma v. Gracey, 15 Conn. App. 371, 374 375, 544 A.2d 668 (1988); see 2 Mallen Smith, op. cit., p. 27.14. We note that in a legal malpractice action, a plaintiff must produce expert testimony (1) that a breach of the professional standard of care has occurred, and (2) that the breach was the proximate cause of the injuries suffered by the plaintiff. Somma v. Gracey, supra.
In Davis v. Margolis, 215 Conn. 408, 416 n. 6, ___ A.2d ___ (1990), the Supreme Court noted that "'The only exception to this rule is where there is present such an obvious and gross want of care and skill that the neglect is clear even to a layman. Bent v. Green, 39 Conn. Sup. 416, 420, 466 A.2d 322 (1983)."' Davis v. Margolis, supra 416 n. 6; see Pearl v. Nelson, 13 Conn. App. 170, 173, 534 A.2d 1257 (1988).
We turn first to the defendants' claim that there was no showing that the allegedly "materially defective" notice was such that it failed to comply with the requirements of Conn. Gen. Stat. 7-465 which includes the argument that Fraser v. Henninger, supra, is dispositive here. This court agrees with the defendants here.
To put this issue into context it is noted, as pointed out, that the plaintiff alleges that the defendants, in representing her, did not exercise the requisite degree of care and skill ". . . in that the notice given by defendants to the City of Meriden [on her behalf] was materially defective in that it failed to comply with Conn. Gen. Stat. 7-465, because it failed to contain written notice of the intention of plaintiff to commence an action against the City of Meriden for personal injuries sustained on its property." That is the allegation of the plaintiff on what the defendants did that violated the duty they owed to her. This allegation is binding on the plaintiff as it is basic that a plaintiff may rely on only what she has alleged as the right to recover is limited to the allegations of her complaint. Matthews v. F.M.C. Corporation, 190 Conn. 700, 705, A.2d (1983) ; see Brick v. Stengal Corporation, 1 Conn. App. 656, 664, 1467 A.2d 679 (1984). Immediately thereafter, the complaint alleges that "[A]s a result of the negligence of the defendants . . . she has suffered damages in that she has suffered a potential loss of her underlying claim against the City of Meriden and thus deprived of her right to monetary damages for injuries sustained by the result of her fall.
Preliminarily, we note that, as required by Conn. Gen. Stat. 7-465, the notice filed by the defendants with the City Clerk of Meriden specifically set forth the time when and the place where the injuries were sustained as well as "the surrounding circumstances so that the municipal officers were provided with `such information as will enable them to intelligently investigate the facts upon which its claim [was] based.'" Fraser v. Henninger, supra, 58.
Looking further at the written notice filed by the defendants with the City Clerk of Meriden, it stated in part:
". . . Maria Garcia has been obliged and will be obliged, in the future, to expend large sums of money for medical care and treatment, and as a consequence of the defect and nuisance complained of, shall look to the City of Meriden for damages as provided by law. . . ."
This is strikingly similar to the notice our Supreme Court held valid as complying with Gen. Stat. 7-465 in Fraser v. Henninger, supra. In Fraser the challenged notice included the following statement:
". . . R. Power Fraser, father of the said minor, Peter Fraser, will look to the Town of Greenwich for damages as provided by law. . . ."
See Connecticut Supreme Court Recording and Briefs, A-637; Fraser v. Henninger, p. 8.
As in Fraser, "[A]lthough the notice did not use the exact statutory wording that the plaintiff intended to `commence such action' against the town . . . pursuant to section 7-465, the notice did state that [the plaintiff] `will look to the town . . . for damages as provided by law."' Fraser v. Henninger, supra, 58-59. We point out here, as the court did in Fraser that "[N]otice provisions are generally construed liberally in favor of a claimant who is attempting to establish compliance with their terms, and substantial compliance with a statute requiring notice is all that is required." Fraser v. Henninger, supra, 59. The court in Fraser, in upholding the notice given in that case, referred with approval to Flynn v. First National Bank Trust Co., 131 Conn. 430, 40 A.2d 770 (1944). Flynn, at page 433, instructively states:
"The notice need not be expressed with the fullness and exactness of a pleading, but its intended purpose as required by the statute is to furnish `the recipients such available information as is calculated to assist them in self-protection. [Its] sufficiency is to be tested with reference to that purpose, and in applying the test the circumstances of each case are to be considered. If, under the circumstances of a given case, the notice is sufficient for its intended purpose, it will be regarded a good notice."' (Citation omitted)
Flynn. v. First National Bank Trust Co., supra. The notice given by the defendants here is not defective as alleged. This court, therefore, concludes that, as a matter of law, the notice filed by the defendants on the plaintiff's behalf with the City Clerk of Meriden complied with the requirements of Conn. Gen. Stat. 7-465. This conclusion alone requires the granting of the defendants' 302 motion.
Nor is this conclusion required to be any different because of the plaintiff's claim that the denial in the answer in her underlying action against the City of Meriden and Leo Kania by those defendants of the allegation of the plaintiff's presentation of the notice under 7-465 to the City Clerk of Meriden. Her attorney contends that the denial is somehow a judicial admission which she may now use against the defendants in this legal malpractice case. This court cannot accept this claim.
In State v. Rodriguez, 180 Conn. 382, 396, 429 A.2d 919 (1980), the Supreme Court, quoting Wigmore, said:
"Professor Wigmore has written that a judicial admission is `[a]n express waiver, made in court or preparatory to trial, by the party or his attorney, conceding for the purposes of the trial the truth of some alleged fact, has the effect of a confessory pleading, in that the fact is thereafter to be taken for granted; so that the one party need offer no evidence to prove it, and the other is not allowed to disprove it . . . It is, in truth a substitute for evidence, in that it does away with the need for evidence.' 9 Wigmore, Evidence (3d Ed.) 2588."
The denial refered to is not a judicial admission of the defendants in this legal malpractice action if for no other reason than that the present defendants (or any of them) were never parties to the underlying action. In addition, it is pointed out that the underlying action against the City of Meriden has been withdrawn and while it is true that a statement in a withdrawn or superseded pleading qualifies as a judicial admission, that is only so if it is made by a party to the action in which it is sought to be used. See Kucza v. Stone, 155 Conn. 194, 197, 230 A.2d 559 (1967); Futterleit v. Mr. Happy's Inc., 16 Conn. App. 497, 504, 548 A.2d 728 (1988).
Another independent reason that justifies granting the defendants' motion for dismissal under Practice Book 302 was that there was no evidence at all of the violation of the standard of care required of the defendants and attorneys in this case. The necessity that such testimony, of which there was none, be expert testimony has been discussed above. See e.g. Davis v. Margolis, supra; Somma v. Gracey, supra.
It is recognized that the nature of a legal malpractice action is such that it has, on occasion, been designated as a "lawsuit within a lawsuit" because the trier is called upon to determine what the outcome would have been for the plaintiff in the earlier case if the attorney sought to be charged in the later legal malpractice had properly represented that plaintiff. See e.g. Titsworth v. Mondo, 407 N.Y.S.2d 793, 798 (1978); Harding v. Bell, 265 OR. 202, 205, 508 P.2d 216 (1973); See also "A Suit Within A Suit," 60 W. Va. L.Rev. 225, 235-236. One court has said that "[I]n order to establish a prima facie case of legal malpractice, a plaintiff must prove the negligence of the attorney, that such negligence was the proximate cause of injury to the plaintiff, and that absent such negligence, plaintiff would have been successful in the underlying [earlier] action." Fidler v. Sullivan, 468 N.Y.S.2d 279, 290 (1983). Another court opines that, in order to prevail, the plaintiff must demonstrate absent the alleged acts of malpractice, she "would have been able to recover or proceed in a manner other than that which actually occurred." Broad v. Conway, 675 F. Sup. 768, 772 (N.D.N Y 1987), aff'd 849 F.2d 1467, (2d Cir.) (1988), cert. denied ___ U.S. ___, 109 S.Ct. 313, 102 L.Ed.2d 331 (1988), reh. denied ___ U.S. ___, 109 S.Ct. 825, 102 L.Ed.2d 814 (1989). We need not reach the matter of the "lawsuit within a lawsuit" concept under the circumstances of this case given our earlier discussion. In passing it is observed that there is no evidence that whatever moneys she obtained in settlement of her underlying action [now withdrawn] had anything to do with the content of the allegedly defective 7-465 notice.
The defendants' motion for dismissal for failure of the plaintiff to make out a prima facie case under Practice Book 302 is granted and, accordingly, judgment may enter for the defendants.
Arthur H. Healey State Trial Referee