Chen v. Hopkins School, Inc.

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CONNIE CHEN ET AL. v. HOPKINS
SCHOOL, INC., ET AL.
(AC 35164)
Alvord, Bear and Schaller, Js.
Argued December 5, 2013—officially released March 4, 2014

(Appeal from Superior Court, judicial district of New
Haven, Young, J.)
William F. Gallagher, with whom, on the brief, was
Hugh D. Hughes, for the appellants (plaintiffs).
John C. Pitblado, with whom were James M. Sconzo
and, on the brief, John W. Herrington, for the appellee
(named defendant).
Opinion

PER CURIAM. The plaintiffs, Connie Chen and Ping
Chen, appeal from the judgment of the trial court in
favor of the defendant Hopkins School, Inc.1 The plain-
tiffs claim that the court improperly dismissed their
negligence action for failure to make out a prima facie
case. They claim that the court used an incorrect stan-
dard to evaluate the testimony of the plaintiffs’ expert,
Harry Boardsen, which resulted in the court improperly
concluding that Boardsen’s testimony failed to present
sufficient evidence of liability. We affirm the judgment
of the trial court.
The record reveals the following relevant facts and
procedural history. The plaintiffs brought a two count
complaint on November 9, 2010, against the defendant
for injuries alleged to have occurred due to a single car
accident.2 In the first count,3 the plaintiffs allege that
on or about November 6, 2008, while Connie Chen was
a student at Hopkins School (school), the front right
tire of her vehicle suffered a catastrophic failure as
she was operating it less than one-half mile from the
entrance to the school, resulting in an accident and
injuries. The plaintiffs assert that the ‘‘failure of the tire
was caused by a laceration in the tire’s sidewall made
by a knife or a similarly sharp and pointed object,’’ and
that the tire was lacerated while the vehicle was parked
in Connie Chen’s assigned school parking spot. The
plaintiffs alleged five instances of negligence by the
defendant, including the defendant’s failure ‘‘to use sur-
veillance technology as a disincentive to criminal activ-
ity and as an aid to apprehending offenders.’’4 In its
answer, the defendant denied the plaintiffs’ substantive
allegations and asserted multiple special defenses.
On July 17, 2012, the plaintiffs disclosed Boardsen
as a security expert. The defendant deposed Boardsen
on August 17, 2012. Thereafter, on October 10, 2012,
the defendant filed a motion to preclude Boardsen from
testifying as an expert. On October 17, 2012, the bench
trial began, and the court preliminarily addressed the
defendant’s pending motion to preclude Boardsen’s tes-
timony. Boardsen was not present during the trial.5 The
court, after hearing argument from both parties on the
motion to preclude, did not grant or deny the motion,
but instead asked the parties to stipulate that the court
could consider the deposition testimony of Boardsen
as trial testimony. The parties agreed,6 and the court
stated that after ‘‘[h]aving reviewed [Boardsen’s testi-
mony] at length,’’ it was ‘‘discounting his testimony
[because] [i]t is not helpful to the court in making the
determination on [the] issue [as to security].’’7 Shortly
thereafter, the defendant’s counsel orally moved to dis-
miss the case, arguing that without Boardsen’s testi-
mony ‘‘there is no basis for this case to proceed.’’ The
court invited the plaintiffs’ counsel to put on any addi-
tional evidence, and asked him whether there was ‘‘any
other theory that’s being offered to the court as to how
[the defendant] would be held liable . . . .’’ The plain-
tiffs’ counsel replied that ‘‘[t]he only evidence that [he]
had was [Boardsen’s testimony regarding] the [security]
camera,’’ and that he was resting as to the liability
portion of the plaintiffs’ claim.8 The defendant’s counsel
again asked for judgment in the defendant’s favor on
the liability portion of the claim. The court noted the
absence of any other evidence of proof of liability, and
orally rendered judgment in favor of the defendant.9
This appeal followed.
On appeal, the plaintiffs claim that the court improp-
erly dismissed their action for failure to make out a
prima facie case because the court used an incorrect
standard to evaluate Boardsen’s testimony, which
resulted in the court improperly concluding that his
testimony failed to present sufficient evidence of liabil-
ity to establish a prima facie claim of negligence. The
plaintiffs assert that the trial court impermissibly made
findings as to disputed facts, weighed the credibility of
Boardsen, and drew inferences against the plaintiffs
when evaluating Boardsen’s testimony for purposes of
‘‘what in effect was a motion for a judgment of dismissal
for failure to make out a prima facie case.’’ The plaintiffs
argue that ‘‘a finder of fact [reasonably] could . . .
have inferred liability’’ from Boardsen’s testimony. We
are not persuaded.
We begin with the law on judgments of dismissal and
the standard of review. ‘‘If, on the trial of any issue of
fact in a civil action tried to the court, the plaintiff has
produced evidence and rested his or her cause, the
defendant may move for judgment of dismissal, and the
judicial authority may grant such motion, if in its opin-
ion the plaintiff has failed to make out a prima facie
case. . . . A prima facie case . . . is one sufficient to
raise an issue to go to the trier of fact. . . . In order
to establish a prima facie case, the proponent must
submit evidence which, if credited, is sufficient to estab-
lish the fact or facts which it is adduced to prove. . . .
In evaluating [the trial court’s decision on] a motion to
dismiss, [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. . . . Whether the
plaintiff has established a prima facie case entitling the
plaintiff to submit a claim to a trier of fact is a question
of law over which our review is plenary.’’ (Internal
quotation marks omitted.) Padawer v. Yur, 142 Conn.
App. 812, 816, 66 A.3d 931, cert. denied, 310 Conn. 927,
78 A.3d 145 (2013); see also Practice Book § 15-8.10
A careful review of the record reveals that the trial
court did not impermissibly make findings as to dis-
puted facts, weigh the credibility of Boardsen’s testi-
mony, or draw inferences against the plaintiffs. Instead,
the court determined that even if Boardsen’s testimony
was credited, it was insufficient to establish the facts
which it was adduced to prove, namely, that the pres-
ence of security cameras would have prevented the
incident alleged by the plaintiffs.11 To make out a prima
facie case of negligence, the plaintiffs were required to
establish the essential elements of duty, breach of that
duty, causation, and actual injury. See Sweeney v.
Friends of Hammonasset, 140 Conn. App. 40, 46, 58
A.3d 293 (2013). The plaintiffs did not introduce any
other evidence beyond Boardsen’s testimony to support
their allegations regarding the defendant’s failure ‘‘to
use surveillance technology’’ or any of the four other
negligent acts alleged in the complaint; they called no
additional witnesses, and introduced no exhibits.12 We
conclude that Boardsen’s testimony, even if believed
and given the benefit of all favorable inferences, fails
to make out a prima facie case for the negligent acts
alleged in the complaint. Accordingly, the trial court
properly dismissed the plaintiffs’ complaint.
The judgment is affirmed.
1
The Hopkins Committee of Trustees, Inc. (Hopkins Trustees), was origi-
nally named as an additional defendant. The plaintiffs, however, withdrew
their complaint as to the Hopkins Trustees on June 20, 2011. The Hopkins
Trustees are not a party to this appeal. We therefore refer in this opinion
to Hopkins School, Inc., as the defendant.
2
Connie Chen’s alleged injuries occurred when she was a minor child.
She subsequently reached the age of majority and brought this action in
her individual capacity, with her father, Ping Chen, as an additional plaintiff.
3
The second count of the complaint was brought by Ping Chen for medical
expenditures incurred for Connie Chen’s medical care resulting from the
defendant’s alleged carelessness and negligence. Because recovery under
this count is dependent on a finding of negligence in the first count, we
need not address it independently in this opinion.
4
The other four negligent acts alleged were that the defendant failed: (1)
‘‘to provide a policy(ies) or guideline[(s)] for the protection of students and
their property’’; (2) ‘‘to provide supervision and training to their agents,
servants and/or employees to enable them to control, prevent and manage
such situations’’; (3) ‘‘to have adequate staffing to ensure the safety of the
students on the premises’’; and (4) ‘‘to provide adequate security or protec-
tive services to ensure the safety of students on such premises.’’
5
On October 12, 2012, the plaintiffs filed a motion for continuance,
asserting that Boardsen was not available for the scheduled trial dates of
October 17 through 19, 2012, as he was out of the country. They requested
a new trial date of ‘‘November 11, 12 and during the entire week of December
10, 2012.’’ The court denied the motion on the same day it was filed, and
provided the following rationale for its decision: ‘‘Counsel for the parties
attended a scheduling conference with the court, selected and agreed to
the dates of October 17 through 19, 2012, to conduct a Porter hearing and
the liability portion of the trial. There was no indication of any problem
with scheduling of witnesses. This matter has been scheduled five times for
trial. . . . Further continuance interferes with the orderly administration of
justice.’’
6
‘‘The Court: All right. So, the [plaintiffs’ counsel] would be in agreement
that the court could consider the transcript as being trial testimony.
‘‘[The Plaintiffs’ Counsel]: Yes.
‘‘The Court: What is the defense’s position?
‘‘[The Defendant’s Counsel]: We don’t disagree with that, Your Honor.’’
7
The court’s resolution of the motion to preclude was entered in a written
order on October 17, 2012, which stated in relevant part: ‘‘The parties have
agreed that the deposition testimony of Mr. Boardsen is to be considered
trial testimony. Whether it is admissible or not, the opinion testimony of Mr.
Boardsen, which is not grounded upon any scientific, empirical or statistical
basis, does not assist the court in determining the issues before it, and,
therefore, the court assigns no weight to Mr. Boardsen’s testimony.’’
8
‘‘The Court: All right. . . . I’ll ask . . . whether you are resting as to
the liability portion of the trial?
‘‘[The Plaintiffs’ Counsel]: Well, yes. If we had put the evidence on, we
would have rested based on the testimony and the theory that we had with
respect to the cameras.
‘‘The Court: Okay. But again—because we seem to be at an impasse here,
you—you do not wish to present any further testimony or evidence as
to liability?
‘‘[The Plaintiffs’ Counsel]: No, I don’t see any point to it.’’
9
The court subsequently rendered a written judgment of dismissal of the
plaintiffs’ action.
10
Practice Book § 15-8 provides in relevant part: ‘‘If, on the trial of any
issue of fact in a civil matter tried to the court, the plaintiff has produced
evidence and rested, a defendant may move for judgment of dismissal, and
the judicial authority may grant such motion if the plaintiff has failed to
make out a prima facie case. . . .’’
11
The court stated: ‘‘[T]he opinion that [Boardsen is] rendering is specifi-
cally [that] security cameras are possibly a deterrence which I think we all
know; and the second one, the most important one, is that this school should
have had a security camera in the parking lot. Even if you are [to] credit
his opinion, it doesn’t help the court know whether this purported vandal
or criminal who purportedly inserted some object into the tire would have
known that there was a security camera there because there was nothing
testified to about signage, whether a lack of knowledge would have deterred
this activity from taking place, whether the camera would be monitored
twenty-four hours a day, whether if someone saw this person doing what
he or she did, it would have stopped what ultimately transpired. None of
this is being offered by this expert, neither is there any statistical or empirical
evidence presented by this gentleman to indicate that the ultimate incident
would not have occurred because there were security cameras in the park-
ing lot.’’
12
‘‘The Court: All right. Well, I’m trying to afford you an opportunity to—
if—if you are able to proceed with the liability portion of this case and
proceed with it understanding that I wouldn’t allow any late disclosure of
corroborative . . . information.
‘‘[The Plaintiffs’ Counsel]: Well, the problem [is] . . . . I have no tie-in
on causation. . . . I understand . . . what the requirements are for proof
here. And the only thing that I had of the five [alleged negligent acts] was
the fifth one and—and that’s now out of the case. And I don’t see how I
can tie [the defendant] to any of these other claims in the absence of some
expert testimony and there isn’t any.
‘‘The Court: All right. If—if that’s your position, then I’m not sure how
we can go forward.
‘‘[The Plaintiffs’ Counsel]: Yeah, I—I understand that, and I agree.’’