Opinion
HHDCV136045373S
12-07-2015
Rejane Oliveira v. Arlete Jensen et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY IUDGMENT (#119)
Sheila A. Huddleston, Judge.
The plaintiff brought this action to recover damages for injuries she sustained when a second-story deck on which she was standing collapsed, causing her to fall fifteen feet to the ground below. At the time of the collapse, the plaintiff was attending a housewarming party at a private home as a social guest of the home's new owner and the owner's second-floor tenant. The plaintiff has sued the owner of the premises, the tenant whose deck collapsed, and the home inspection company that performed a limited prepurchase inspection two months before the collapse. The home inspection company has now moved for summary judgment on three grounds: first, it owed no duty to the plaintiff second, there is no evidence that it breached the standard of care; and third, the plaintiff cannot prove that any negligence on the part of the home inspection company was a substantial factor in causing her injury. Both the plaintiff and the codefendant home owner have opposed summary judgment. The plaintiff argues that a home inspection company cannot limit its liability by contract and, as a matter of law, had a duty to act reasonably under the circumstances; that the rotten state of the wood revealed when the porch collapsed is evidence that the porch was visibly rotted at the time of inspection; and that there are material issues of fact in dispute with regard to causation. The codefendant owner of the property argues that the home inspection company owed a duty to the plaintiff under the principles stated in Gazo v. Stamford, 255 Conn. 245, 250, 765 A.2d 505 (2001), and that breach of that duty and causation are questions of fact for the jury.
The question presented here appears to be one of first impression in Connecticut. The parties cited no cases involving a home inspector's duties to third parties, and the court's own research found only one similar case. Considering all the facts in the record in the light most favorable to the nonmovants, the court concludes that this is one of those relatively rare questions of duty that cannot be decided on summary judgment, at least on the record as presented to the court, and that the defendant has failed to present evidence that establishes the nonexistence of disputed material facts. Accordingly, the motion for summary judgment is denied.
In a recent unreported decision involving facts very similar to this case, an intermediate appellate court in Tennessee affirmed summary judgment in favor of a defendant home inspector on the ground that it owed no duty to third parties. See Grogan v. Uggla, No. M2014-01961-COA-R3-CV, 2015 WL 5601995 (Tenn.Ct.App. Sept. 22, 2015). Its decision depended in part on policy grounds stated in Tennessee's home inspector statute, which differs from Connecticut's in certain significant respects.
Allegations of the Complaint and Procedural History
The complaint alleges the following facts relevant to the motion pending before the court. The defendant Arlete Jensen owns a private residence at 66-68 Dover Road in West Hartford, Connecticut. Before she purchased the house in July 2011, Jensen hired defendant U.S. Inspect, LLC (home inspection company) to conduct a home inspection. The home inspection company completed the inspection, including an inspection of a deck on the second floor, on or about July 9, 2011, and reported to Jensen that the deck was fit for its intended use. It also did a termite inspection and found that the deck passed the termite inspection. After Jensen's purchase of the residence, defendant Marcia Mullins rented the second floor of the residence from her. On September 11, 2011, the plaintiff attended a private gathering at the home of defendants Jansen and Mullins. As such, she was a social invitee entitled to a heightened duty of care pursuant to General Statutes § 52-557a. On that date, along with four other invitees, the plaintiff was standing on the second floor deck when the floor of the deck suddenly and unexpectedly collapsed, causing the plaintiff to fall fifteen feet to the ground. The plaintiff was struck by the table from the deck, other guests who had fallen, pieces of the deck, and other debris. The plaintiff sustained serious injuries as a result of her fall. She alleges that the home inspection company negligently examined the deck, failed to warn the homeowner that the deck was not suitable for its intended use; failed to detect the presence of termites which had caused the deck to rot, improperly issued a certificate of occupancy; and/or negligently failed to inspect all aspects of the deck to prevent a foreseeable risk. She alleges that she sustained injuries and losses as a result of the home inspection company's negligence.
The plaintiff refers to the structure that collapsed as a " deck/porch" throughout the complaint. For convenience, it will be called simply a " deck" in this decision. Photographs of the deck show that it extended from the rear of the second floor and was supported by posts that rose from a similar deck extending from the rear of the first floor. ---------
The home inspection company moved for summary judgment on March 16, 2015. Attached to its supporting memorandum of law was a copy of its contract with the owner, the reports provided to the owner, and the owner's interrogatory responses. On March 23, 2015, it submitted a supplemental affidavit by its vice president, who attested to the authenticity of the contract and the reports and further attested that the owner had declined to purchase a " technical home inspection" that was offered to her. The plaintiff objected to the home inspection company's motion for summary judgment on May 10, 2015, and submitted in support of her objection a copy of her entire deposition transcript and an exhibit labeled " Pictures of Aftermath, " which included numerous photographs of the deck taken after its floor collapsed. The home owner objected to the home inspection company's summary judgment motion on July 21, 2015. The home inspection company filed a reply on August 5, 2015, that addressed the arguments made by the plaintiff and the homeowner in the same memorandum. The court heard oral argument on August 10, 2015.
Standards for Summary Judgment
" Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried . . . However, since litigants ordinarily have a constitutional right to have issues of fact decided by a jury . . . the moving party for summary judgment is held to a strict standard . . . of demonstrating his entitlement to summary judgment." (Citation omitted; footnote omitted; internal quotation marks omitted.) Grenier v. Commissioner of Transportation, 306 Conn. 523, 534-35, 51 A.3d 367 (2012).
The party moving for summary judgment bears the burden of " showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Romprey v. Safeco Ins. Co. of America, 310 Conn. 304, 320, 77 A.3d 726 (2013). " The courts hold the movant to a strict standard." (Internal quotation marks omitted.) Id. " To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 228, 116 A.3d 297 (2015). Inferences of fact must also be drawn in the light most favorable to the opponent. Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002). " Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue . . . It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Ferri v. Powell-Ferri, supra, 228.
Duty
The plaintiff's claim sounds in negligence. The essential elements of a claim of negligence are well established. " A cause of action in negligence is comprised of four elements: duty; breach of that duty; causation; and actual injury . . . Whether a duty exists is a question of law for the court, and only if the court finds that such a duty exists does the trier of fact consider whether that duty was breached . . .
" Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual . . . Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised . . . By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury [that] resulted was foreseeable . . . [T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Citations omitted; internal quotation marks omitted.) Ruiz v. Victory Properties, LLC, 315 Conn. 320, 328-29, 107 A.3d 381 (2015).
" A simple conclusion that the harm to the plaintiff was foreseeable . . . cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally foreseeable, yet for pragmatic reasons, no recovery is allowed . . . A further inquiry must be made, for we recognize that duty is not sacrosanct in itself . . . but is only an expression of the sum total of those considerations of policy [that] lead the law to say that the plaintiff is entitled to protection . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results." (Internal quotation marks omitted.) Pelletier v. Sordoni/Skanska Construction Co., 286 Conn. 563, 594, 945 A.2d 388 (2008). " [I]n considering whether public policy suggests the imposition of a duty, we . . . consider the following four factors: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." (Internal quotation marks omitted.) Monk v. Temple George Associates, LLC, 273 Conn. 108, 118, 869 A.2d 179 (2005). This " totality of the circumstances rule . . . is most consistent with the public policy goals of our legal system, as well as the general tenor of our [tort] jurisprudence." Id., 121.
Finally, although the existence of a duty generally presents a question of law, there are cases in which the question of duty turns on particular disputed facts. " Whether an injury was foreseeable is to be determined by the jury when the evidence creates a genuine issue of material facts as to that issue." Vendrella v. Astriab Family Ltd. Partnership, 311 Conn. 301, 331, 87 A.3d 546 (2014). Foreseeability " is a flexible concept . . ." Burns v. Board of Education, 228 Conn. 640, 647, 638 A.2d 1 (1994).
In this case, the home inspection company contends that it owed no duty to a future social invitee. It argues that it owed a duty only to its client, the prospective home buyer, and that its duty was defined by the contract it entered. The authenticity of the documents submitted by the home inspection company is not disputed. As the documents establish, the contract's provisions defined and limited the scope of the home inspection company's duty.
The " Inspection Services Agreement" contains several provisions that are relevant to the home inspection company's motion. It stated that the " [g]eneral [h]ome [i]nspection" was " intended to assist you in evaluating the overall quality and general condition of the [b]uilding." Defendant's Supplemental Affidavit, Exhibit A. It further represented that " [t]he inspection will be conducted in accordance with nationally and state recognized [s]tandards of [p]ractice in effect at the time of the inspection and referenced in the [i]nspection [r]eport." It cautioned that it was limited in scope and " based upon the visible and apparent condition of the systems and components of the [b]uilding, as they exist at the time of the inspection." (Emphasis in original.) Id. It offered a " technical home inspection" for a more thorough analysis of the structural soundness of the building. The " technical home inspection" would be conducted by other professionals, including engineers. Id. The defendant owner did not elect the technical home inspection, which cost a minimum of $2, 500. Id.
The agreement was signed on July 9, 2011, by defendant Arlete Jensen and by Patrick Belcher, the licensed home inspector who conducted the home inspection on that date. Defendant Jensen also initialed a notice captioned " Connecticut Home Inspection Standards of Practice" that stated that " [h]ome inspectors are required to abide by the following Standards of Practice as promulgated by the Connecticut Home Inspection Licensing Board, Department of Consumer Protection . . ." Id.
Defendant Jensen also purchased inspection services for " wood destroying insects." The report she received indicated that that no visible evidence of wood destroying insects (defined to include termites, carpenter ants, carpenter bees, and wood boring beetles). (Defendant's Supplemental Affidavit, Exhibit B.)
The inspection report itself identified the property that had been inspected as an eighty-three year old multifamily dwelling. It stated that " [t]he inspection services will be conducted in accordance with nationally and state recognized [s]tandards of [p]ractice consistent with a visual inspection of the readily accessible areas, systems and components of the primary residence at the time of the inspection. The inspection is not a code compliance review nor permit verification." (Defendant's Supplemental Affidavit, Exhibit C.)
The inspection report cautioned that it was not an exhaustive report and that the inspector could address only " those areas that are readily accessible at the time of the inspection." It continued: " The inspector is not required, and should not be expected, to move furnishings or other items during the inspection, disassemble equipment, or open wall coverings. A home inspection is a 'snapshot' of the home at the time of the inspection; it is designed to educate a buyer about the home, not to replace the obligation of a home seller to disclose known defects. A home inspection is not a guarantee or warranty of the condition of the home or property; neither is it a guarantee that conditions will not change in the future." (Defendant's Supplemental Affidavit, Exhibit C.)
The deck at issue was addressed in the section of the report captioned " Site." As to the " deck/balcony, " the report stated that it was a " balcony, wood" and that " [t]he balcony decking is weathered. Applying a preservative should be considered. Normal maintenance entails stripping the weathered surface and treating the deck with a preservative designed for UV and water protection. Typically, exterior wood surfaces require this kind of maintenance at least every two years." (Defendant's Supplemental Affidavit, Exhibit C.)
A " picture addendum" to the report contained photographs of the property. The exterior of the deck at issue is shown in photographs of the " left rear" and " right rear" of the property. Dark or discolored portions of the underside of the deck are visible on the photograph captioned " right rear." It is unclear from the photograph whether these dark portions represent cracking, water stains, peeling paint, or visible rot.
Defendant Jensen was present for the home inspection. (Defendant's Exhibits to Summary Judgment Motion, Interrogatory Responses, Response No. 23.)
The inspection agreement refers to Connecticut regulations governing home inspections. Those regulations are intended " to establish a minimum and uniform standard for the home inspector who provides or offers to provide a home inspection." Regs., Conn. State Agencies § 20-491-2(a). In relevant part, the regulations require a home inspector to " inspect all readily accessible systems and components of homes and installed systems and components of homes." Id., § 20-491-2(b). " Readily accessible" is defined as " available for visual inspection without requiring moving of personal property, dismantling, destructive measures, or any action which will likely involve risk to persons or property." Id., § 20-491-1(14). The regulations require an inspector to " report on those systems and components inspected which, in the professional opinion of the inspector, are significantly deficient or are near the end of their service lives." Id., § 20-491-2(c). An inspector is required to " probe a representative number of structural components where deterioration is suspected or where clear indications of possible deterioration exist." Id., § 20-491-3(b). " 'Structural component' means a component that supports non-variable forces or weights (dead loads) and variable forces or weights (live loads)." Id., § 20-491-1(23). Probing is not required, however, " when probing would damage any finished surface or where no deterioration is visible." Id., § 20-491-3(b). " The inspector is not required to provide any engineering service or provide architectural service." Id., § 20-491-3(d). An inspector is required to inspect attached decks and balconies on a building's exterior. Id., § 20-491-4(a).
Section 20-491-13 of the Regulations of Connecticut State Agencies provides " [g]eneral limitations and exclusions" that apply to the duties of a home inspector. In relevant part, these provisions include the following:
(a) Inspections performed in accordance with these regulations are not technically exhaustive. The inspector is not required to identify concealed conditions or latent defects;
(b) These regulations shall be applicable to buildings with four or fewer dwelling units and their attached garages or carports;
(c) The inspector is not required to perform any action or make any determination unless specifically stated in these regulations, except as may be required by lawful authority;
(d) The inspector is not required to determine the following:
(1) the condition of systems or components which are not readily accessible;
(2) the remaining life of any system or component;
(3) the strength, adequacy, effectiveness, or efficiency of any system or components;
(4) the causes of any condition or deficiency; . . .
(6) future conditions, including, but not limited to, failure of systems or components; . . .
Based on the foregoing contract provisions, reports, and governing regulations, the home inspection company argues that it owed no duty to a third party social invitee of the owner present on the property two months after the completion of the home inspection. The court concludes, to the contrary, that there are unaddressed factual issues that are relevant to the existence and the scope of a duty to third parties.
To determine whether a duty exists, a court must consider both foreseeability and public policy. The case of Gazo v. Stamford, 255 Conn. 245, 765 A.2d 505 (2001), provides a blueprint for the analysis of the duty of an independent contractor to a third party. In Gazo, the plaintiff was injured when he slipped and fell on ice on a sidewalk in front of a bank. He sued both the bank, as possessor of the property, and the independent contractor hired by the bank to keep the sidewalks free of ice and snow. Contrary to the defendant's arguments, the court held that the independent contractor owed a duty of care to a third party injured by its negligence. Id., 250. The court's analysis included the following considerations: (1) the contractor was hired to remove ice and snow, and the potential for harm from a fall on ice, if not properly removed, was significant and foreseeable; id. ; (2) the contractor owed its customer, the possessor of the property, the duty to perform its contractual duties in a reasonable manner so as to prevent injury to persons using the sidewalk, and there were no policy reasons suggesting that extending the duty to third parties would interfere with that primary purpose; id., 251-52; (3) section 324(b) of the Restatement (Second) of Torts recognizes such a duty as a matter of policy; id., 252-53; and (4) the court had previously adopted an analogous duty in construction cases, where it had held that a " contractor is liable to all those who may foreseeably be injured by the structure, not only when he fails to disclose dangerous situations known to him, but also when the work is negligently done." (Internal quotation marks omitted.) Id., 254 (quoting Zapata v. Burns, 207 Conn. 496, 517, 542 A.2d 700 [1988]).
Applying the analytical framework of Gazo to the facts before the court, it is necessary first to address the question of foreseeability. In Gazo, the property owner had contracted for a service--ice and snow removal--for the purpose of keeping the sidewalk safe for pedestrians. The potential for harm from failure to perform that service with reasonable care was " significant and foreseeable."
The purpose of the contract in this case is not as immediately related to safety of third parties as is that of a snow removal contract. A prospective home buyer engages a home inspection company for several reasons, which include determining whether to close on a purchase of a particular property and, if significant repairs are needed, to negotiate the price of the home with the seller. As stated in the agreement between the parties, a general home inspection is intended to assist the buyer " in evaluating the overall quality and general condition of the [b]uilding." It is also intended to " identify items that may need immediate or near-term repair or replacement."
Yet even a limited, general home inspection such as that for which defendant Jensen contracted here has certain clear safety implications. By regulation, a home inspector is required to probe representative samples of weight-bearing structural components of a building where deterioration is present or suspected. See Regs., Conn. State Agencies § 20-491-3(b). It is fair to infer that the purpose of this regulation is to ensure that a weight-bearing structure is not at risk of collapsing. The inspection serves not only to help a buyer decide whether to purchase a home but also to inform the buyer of repairs that may be needed immediately if he or she does purchase the home. It is reasonably foreseeable that a negligent failure to identify a structure that is near collapse is likely to result in an injury to the prospective property owner or to her family, guests, and others present on the premises if in fact she completed the purchase and the structure soon thereafter collapsed. It is also reasonable to foresee that injuries resulting from the collapse of a second floor deck that is some fifteen feet above ground level are likely to be significant.
In his report, the home inspector in this case commented that the house was eighty-three years old and the deck was " weathered." The photos attached to the report show slightly darkened or cracked areas on the underside of the deck. Whether the weathered condition of the deck imposed a duty on the home inspector to probe the structure to determine the extent of deterioration is a question of fact that cannot be resolved on the record before the court. The defendants did not submit an affidavit by the home inspector to provide further detail about what he observed, whether the deck was inaccessible for any reason, and what he did, if anything, to test its soundness. The only photos of the deck as it was on the day of the inspection are of the exterior, making it impossible to determine the condition of the interior of the deck where the plaintiff was standing before it collapsed and threw her to the ground.
If a harm is reasonably foreseeable, the court must then examine whether there are any policy reasons that mitigate against the finding of a duty. Assuming that, on more fully developed facts, a trier of fact could find that the harm sustained by the plaintiff was reasonably foreseeable even in light of the limited duties imposed on a home inspector conducting a general inspection, the court accordingly turns to policy concerns. " [I]n considering whether public policy suggests the imposition of a duty, we . . . consider the following four factors: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." (Internal quotation marks omitted.) Monk v. Temple George Associates, LLC, supra, 273 Conn. 118. This " totality of the circumstances rule . . . is most consistent with the public policy goals of our legal system, as well as the general tenor of our [tort] jurisprudence." Id., 121.
Finally, although the existence of a duty generally presents a question of law, there are cases in which the question of duty turns on particular disputed facts. " Whether an injury was foreseeable is to be determined by the jury when the evidence creates a genuine issue of material facts as to that issue." Vendrella v. Astriab Family Ltd. Partnership, supra, 311 Conn. 331. Foreseeability " is a flexible concept . . ." Burns v. Board of Education, supra, 228 Conn. 647.
The defendant argues that the parties to a home inspection agreement would not expect it to extend to unforeseeable social invitees in the distant future. In support of this argument, it relies on limitations expressed in its agreement and in the " general limitations and exclusions" found in § 20-491-13 of the relevant regulations. It stresses the limited nature of a prepurchase general home inspection and points out that the prospective property owner did not purchase the more extensive " technical inspection" services that would specifically have investigated structural soundness. That argument, however, goes only to the scope of the duty, not to its existence. Connecticut's regulations impose very few affirmative duties on a home inspector, but one duty they do prescribe is the duty to examine readily accessible weight-bearing structures for signs of deterioration. A negligent failure to identify visual signs of deterioration is as likely to injure third parties--including family members and guests--as it is to injure the owner. That is particularly the case here, where the report acknowledges that the house under inspection is a multifamily house that will be rented to tenants. The court concludes that this factor weighs in favor of recognizing a duty to third parties.
The second factor involves considering weighing the desire to encourage participation in the activity while weighing the safety of the participants. The defendant offers no argument on this factor other than the conclusory assertion that it " fails to support that liability should extend to unforeseen social invitees." The court disagrees. As in Gazo, the court here does not perceive any policy conflict that would preclude extending the duty to third parties. This is unlike cases involving professional negligence where the professional (a doctor or lawyer, for instance) owes an undivided duty of loyalty and confidentiality to the client. The home inspection company would be subject to liability to the home owner for the negligent performance of inspection (assuming other elements of the tort of negligence were established), and extending that duty to others who might suffer personal injuries as a result of the negligent inspection does not conflict with the duty to the home owner.
As to the third factor, whether recognition of a duty would engender litigation, the court does not think it is likely to do so. From the court's research, cases involving negligent home inspections are infrequent. This may be so for a number of reasons: the duties imposed are limited in nature, and any flaws overlooked by the home inspector would have to be discovered relatively soon after the home inspection to be deemed to be reasonably related to a home inspector's negligence.
The fourth factor looks to the law of other states. The parties cited no cases on point, and the court found only one, an unreported decision issued by an intermediate appellate court in Tennessee in September 2015, a few weeks after this motion was argued. See Grogan v. Uggla, No. M2014-01961-COA-R3-CV, 2015 WL 5601995 (Tenn.Ct.App. Sept. 22, 2015). That case was remarkably similar on its facts to this case: a guest was injured when a second-story deck railing gave way, causing injury to the guest, only a month after a home inspection had been performed. It is true that the Tennessee decision affirmed summary judgment in favor of the defendant home inspector on the ground that it owed no duty to the guest. But the court's decision in that case turned in substantial part of provisions of the Tennessee home inspection statutes that " limit the scope of the inspection to such a degree that it falls short of a safety inspection." Id. at *8. Our regulations, in contrast, impose at least a limited duty to inspect for signs of deterioration of weight-bearing structures. In addition, our Supreme Court's decision in Gazo provides more relevant guidance on the applicable principles of Connecticut law than does a decision from another jurisdiction with a different statutory framework.
In view of the standard that applies in considering motions for summary judgment, where all facts must be construed in the light most favorable to the nonmovants, the court concludes that the defendant has not established that it is entitled to judgment as a matter of law on the question of duty. Further factual development is required to determine whether it owed a duty to conduct a more extensive examination of the deck because of its " weathered" appearance and the fact that it was a weight-bearing structure. If such a duty was owed to the prospective home owner who hired it, the court perceives no reason not to extend such a duty to that prospective home owner's guest a few weeks later.
Breach of Duty
The defendant further argues that it is entitled to summary judgment because the plaintiff has not disclosed any experts who can testify as to the standard of care it owed and whether that standard was breached. It is of course the case that expert testimony is usually required in cases involving allegations of professional negligence. See LaPoint v. Houghtaling, Superior Court, judicial district of Hartford, Docket No. CV-05-4018716 (September 24, 2009, Satter, J.T.R.) (plaintiffs failed to prove claim of negligence against home inspector because they offered no expert testimony on standard of care). There is an exception to this rule when the facts demonstrate an " obvious and gross want of care and skill" such that the " neglect is clear even to a layperson." Dubreuil v. Witt, 80 Conn.App. 410, 420-21, 835 A.2d 477 (2003).
This case is before the court on a motion for summary judgment. Much of the defendant's argument turns on the regulations that limit the duties of a home inspector. The defendant does not address the one affirmative duty imposed by the regulation that is relevant to this case: the duty to probe weight-bearing structures if signs of deterioration are present. Because we do not have an affidavit from the home inspector that either states that he did conduct such probing or that establishes a reason for not doing so in spite of the " weathered" condition of the deck, the court concludes that the defendant has not met the burden of a movant for summary judgment to establish that no genuine issues of material fact exist. Whether the plaintiff will be able to prove a breach of the standard of care imposed by regulation without expert testimony at trial cannot be determined on the state of this record.
Proximate Cause
The defendant further argues that the plaintiff cannot establish that any negligence on its part was a proximate cause of the injuries the plaintiff sustained when the deck collapsed. " The question of proximate cause generally belongs to the trier of fact because causation is essentially a factual issue . . . It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact." (Citations omitted; internal quotation marks omitted.) Stewart v. Federated Dep't Stores, 234 Conn. 597, 611, 662 A.2d 753 (1995). " In negligence cases . . . in which a tortfeasor's conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis of the extent of the tortfeasor's duty [to the victim] . . . Essential to determining whether a legal duty exists is the fundamental policy of the law that a tortfeasor's responsibility should not extend to the theoretically endless consequences of the wrong . . ." (Citation omitted; internal quotation marks omitted.) Ruiz v. Victory Properties, 135 Conn.App. 119, 124-25, 43 A.3d 186 (2012), aff'd, 315 Conn. 320, 107 A.3d 381 (2015). In such cases, " [t]he plaintiff . . . must show . . . that the defendant's conduct [was] a substantial factor in bringing about the plaintiff's injuries and that there was an unbroken sequence of events that tied [the plaintiffs] injuries to the [defendant's conduct] . . . Proximate cause does not require the plaintiff to remove from the realm of possibility all other potential causes of the accident . . . Instead the plaintiff must establish that it is more likely than not that the cause on which the plaintiff relies was in fact a proximate cause of the accident . . . The more likely than not standard ensures that the causal connection . . . [is] based [on] more than conjecture and surmise." (Citations omitted; internal quotation marks omitted.) Rawls v. Progressive Northern Ins. Co., 310 Conn. 768, 776-77, 83 A.3d 576 (2014).
Whether the home inspection company's alleged negligence was a substantial factor that contributed to the plaintiff's injury cannot be determined on the present state of the record. It will require testimony regarding the state of the deck as it appeared on the day of the inspection, whether it was accessible to the home inspector, whether any intervening circumstances contributed to the instability of the deck, and whether the defendant owner and/or the plaintiff would have conducted themselves differently if the owner had been advised that the deck was unsound. Accordingly, summary judgment on the issue of proximate cause is not warranted.
Conclusion
The defendant home inspection company has not established that it is entitled to judgment as a matter of law because it has not provided evidence as to what the home inspector saw and did with respect to the deck. Its duty to conduct a more extensive investigation of the soundness of a second floor weight-bearing deck therefore involves unaddressed questions of fact. For related reasons, it has not established that the plaintiff could not prove her case without expert testimony, nor has it established that its conduct was not a proximate cause of the plaintiff's injury. Accordingly, summary judgment is denied.
Grogan is discussed later in this decision.