Palkimas v. Fernandez

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RICHARD PALKIMAS v. OSCAR FERNANDEZ ET AL.
(AC 36548)
DiPentima, C. J., and Mullins and Bear, Js.
Argued April 7—officially released August 4, 2015

(Appeal from Superior Court, judicial district of
Fairfield, Radcliffe, J.)
Richard H. G. Cunningham, for the appellant
(plaintiff).
Robert D. Laurie, with whom, on the brief, were
Heather L. McCoy and Shrina B. Faldu, for the appellee
(defendant Nationwide Insurance Company of
America).
Opinion

DiPENTIMA, C. J. The plaintiff, Richard Palkimas,
appeals from the judgment of the trial court rendered
in favor of the defendant Nationwide Insurance Com-
pany of America.1 On appeal, the plaintiff claims that
the court improperly (1) determined that the defendant
was not liable for the alleged negligence of Hygenix,
Inc., and ServPro, which were independent contractors,
and (2) found that the defendant did not cause damage
to the plaintiff’s property. We conclude that the court’s
finding of a lack of proximate cause is not clearly erro-
neous.2 Accordingly, we affirm the judgment of the
court.3
The memorandum of decision of the court set forth
the following relevant facts. The plaintiff owned a home
located at 350 Soundview Avenue in Stamford (house).
In January, 2006, the plaintiff hired Oscar D. Fernandez
‘‘to restore windows in the house, perform exterior and
interior painting, and lead pain[t] encapsulation.’’ At
the time, the defendant was Fernandez’ insurance car-
rier. In September, 2006, near the end of the renovation,
an ‘‘unknown person’’ used a disconnected toilet, which
resulted in water and waste flooding various rooms of
the house, causing substantial damage.
Hygenix, Inc., and ServPro—both independent con-
tractors—were hired to remediate the flooded area.
During the remediation process, the heat to the house
was turned off. At trial, the plaintiff claimed that the
defendant ordered the heat turned off. The defendant,
however, insisted that it never made such request and,
moreover, that it was the plaintiff who had ordered the
heat turned off.
Once the remediation was finished, the plaintiff
returned to the house and discovered damage to the
horsehair plaster walls.4 Specifically, the plaintiff
observed cracks in the walls and found the walls soft
to the touch. Afterward, the plaintiff ascertained that
most of the plaster keyways had been broken.5 The
plaintiff claimed that turning off the heat damaged the
horsehair plaster walls by exposing the walls to freezing
winter temperatures and moisture. The defendant main-
tained that neither the temperature during the winter
of 2006 to 2007 nor the moisture in the house caused
the damage to the horsehair plaster walls.
On January 27, 2009, the plaintiff commenced this
action with a three count complaint. On March 22, 2013,
the plaintiff withdrew the action as to Fernandez and
Oscar Painting Contractor, LLC. On June 10, 2013, the
plaintiff filed an amended complaint alleging that the
defendant was negligent because it ‘‘should have pro-
vided for an alternative source of heat to prevent the
fracturing and shattering of plaster . . . should have
assured that the remediation was being done in an expe-
ditious fashion instead of prolonging the process
allowing the property to be exposed to freezing temper-
atures for excessive periods of time . . . [and] failed
to appreciate the dangers inherent in allowing a home
of this nature to be subject to freezing temperatures
for prolonged periods of time.’’ The defendant filed its
answer and special defenses on June 12, 2013, denying
the claim of negligence.
A trial to the court began on June 17, 2013, and lasted
four days. On January 2, 2014, the court rendered judg-
ment in favor of the defendant. Specifically, it found
that the defendant was not in control of the independent
contractors and that the plaintiff failed to prove proxi-
mate causation. This appeal followed. Additional facts
will be set forth as necessary.
The dispositive issue in this appeal is whether the
court properly found that the plaintiff failed to establish
proximate causation. In his appellate brief, the plaintiff
argues that the court improperly determined that the
opinion of the plaintiff’s expert witness was unpersua-
sive because his conclusions were unverified by ‘‘any
scientific experiments or tests at the [house] . . . .’’
The defendant, however, asserts that the court, as trier
of fact, properly weighed the competing experts’ testi-
mony as to proximate causation and correctly found
that the plaintiff failed to prove proximate causation.
We conclude that the trial court’s finding was not
clearly erroneous.
We begin with the standard of review, which is con-
tested by the parties. The plaintiff seeks a plenary
review, while the defendant asserts that our review is
subject to the clearly erroneous standard. We agree
with the defendant. The court found that the plaintiff
failed to prove that the damage to the horsehair plaster
walls was proximately caused by the failure to heat the
premises during the remediation process. ‘‘Proximate
cause is ordinarily a question of fact.’’ (Internal quota-
tion marks omitted.) Gurguis v. Frankel, 93 Conn. App.
162, 168, 888 A.2d 1083, cert. denied, 277 Conn. 916,
895 A.2d 789 (2006).
‘‘Our standard of review concerning a trial court’s
findings of fact is well established. If the factual basis of
the court’s decision is challenged, our review includes
determining whether the facts set out in the memoran-
dum of decision are supported by the record or whether,
in light of the evidence and the pleadings in the whole
record, those facts are clearly erroneous. . . . Further,
a court’s inference of fact is not reversible unless the
inference was arrived at unreasonably. . . . We note
as well that [t]riers of fact must often rely on circum-
stantial evidence and draw inferences from it. . . .
Proof of a material fact by inference need not be so
conclusive as to exclude every other hypothesis. It is
sufficient if the evidence produces in the mind of the
trier a reasonable belief in the probability of the exis-
tence of the material fact. . . . Moreover, it is the
exclusive province of the trier of fact to weigh the
conflicting evidence, determine the credibility of wit-
nesses and determine whether to accept some, all or
none of a witness’ testimony. . . . Thus, if the court’s
dispositive finding . . . was not clearly erroneous,
then the judgment must be affirmed.’’ (Emphasis in
original; internal quotation marks omitted.) Stein v.
Tong, 117 Conn. App. 19, 24, 979 A.2d 494 (2009).
The elements necessary to prove an action for negli-
gence are well established: ‘‘duty; breach of that duty;
causation; and actual injury. . . . If a plaintiff cannot
prove all of those elements, the cause of action fails.
. . . [I]n a negligence action . . . [a] causal relation
between the defendant’s wrongful conduct and the
plaintiff’s injuries is a fundamental element without
which a plaintiff has no case . . . . To prevail on a
negligence claim, a plaintiff must establish that the
defendant’s conduct legally caused the injuries. . . .
The first component of legal cause is causation in fact.
Causation in fact is the purest legal application of . . .
legal cause. The test for cause in fact is, simply, would
the injury have occurred were it not for the actor’s
conduct. . . . The second component of legal cause is
proximate cause . . . . [T]he test of proximate cause
is whether the defendant’s conduct is a substantial fac-
tor in bringing about the plaintiff’s injuries. . . . Fur-
ther, it is the plaintiff who bears the burden to prove
an unbroken sequence of events that tied his injuries
to the [defendant’s conduct]. . . . The existence of the
proximate cause of an injury is determined by looking
from the injury to the negligent act complained of for
the necessary causal connection. . . . This causal con-
nection must be based upon more than conjecture and
surmise.’’ (Citation omitted; internal quotation marks
omitted.) Gurguis v. Frankel, supra, 93 Conn. App.
167–68.
At trial, the plaintiff presented Barry Nelson, a profes-
sional engineer, as his expert witness. Nelson conceded
that when he inspected the damaged walls in early 2007,
he did not take notes, did not measure the cracks,
did not take moisture readings, did not investigate the
weather during the relevant time, and did not research
the ‘‘antique type of plasters in connection with this
case.’’ Furthermore, Nelson conceded that he was ‘‘not
a plaster expert’’ and that he had never worked with
or applied horsehair plaster. Nelson did testify, how-
ever, to ‘‘basic engineering principles,’’ namely, the
‘‘effects of freezing on solid and liquid materials,’’ as
well as the impact of ‘‘weather and stress on various
materials.’’ It was Nelson’s opinion that the keyways
had been broken because of a combination of freezing
temperatures and humidity. Thus, it was Nelson’s con-
clusion that the lack of heat during the remediation
process caused the damage to the horsehair plaster
walls.
The defendant presented Peter Lord, as an expert in
the restoration and protection of historic buildings.
Lord testified that he had more than twenty-five years
of experience in plaster restoration, specializing in the
preservation and restoration of historic surfaces. Lord
also testified that his experiences with horsehair plaster
walls included recreating, stabilizing, reattaching, and
fixing cracks. In connection with this case, Lord
reviewed the following items: the complaint; the plain-
tiff’s answers to interrogatories; Nelson’s deposition;
the weather for the area during the relevant time; the
mold remediation documents; photographs of the
cracked horsehair plaster walls; and a video that had
been offered into evidence by the plaintiff. Significantly,
Lord testified that freezing temperatures do not affect
horsehair plaster and, in his experience, he had never
seen freezing temperatures cause horsehair plaster
walls to crack or keyways to break. Lord further testi-
fied that moisture does not affect horsehair plaster
walls because the walls are very porous. Lord stated
that he had seen frost on plaster walls without causing
damage to the walls. Moreover, Lord testified that it
would take a significant amount of water to cause the
wood laths to swell up and in turn break the keyways.
In this case, Lord opined that the moisture produced
from the sewage discharge could not have caused the
damage alleged by the plaintiff because the flooded area
was isolated and the amount of water was insufficient to
cause the wood laths to swell up.6
‘‘It is well established that [i]n a case tried before a
court, the trial judge is the sole arbiter of the credibility
of the witnesses and the weight to be given specific
testimony. . . . The credibility and the weight of
expert testimony is judged by the same standard, and
the trial court is privileged to adopt whatever testimony
[it] reasonably believes to be credible. . . . On appeal,
we do not retry the facts or pass on the credibility of
witnesses.’’ (Internal quotation marks omitted.) United
Technologies Corp. v. East Windsor, 262 Conn. 11, 26,
807 A.2d 955 (2002); see also Griffin v. Nationwide
Moving & Storage Co., 187 Conn. 405, 422, 446 A.2d
799 (1982) (citing cases asserting that trial court, as
trier of fact, is afforded discretion with respect to wit-
ness testimony).
It was within the province of the court to find the
defendant’s expert credible and, in contrasting Lord’s
vast experience with horsehair plaster against Nelson’s
lack of experience, the court was well within its role
as the trier of fact to accord more weight to Lord’s
testimony. On the record before us, the court reason-
ably could have rejected Nelson’s opinion that cold
temperatures, coupled with moisture, caused the dam-
age to the horsehair plaster walls. See United Technolo-
gies Corp. v. East Windsor, supra, 262 Conn. 26.
Moreover, as the trier of fact, the court was well within
its province to discount Nelson’s conclusion because,
as it found, those ‘‘conclusions were not verified by any
scientific experiments or tests at the [house] . . . .’’
Ultimately, the court found that the plaintiff ‘‘failed to
prove that the damage to the horsehair plaster . . .
was proximately caused by the failure to properly hea[t]
the premises during the remediation process.’’ The
court’s findings were supported by the evidence and
not clearly erroneous.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The other defendants named in the plaintiff’s complaint were Oscar D.
Fernandez, doing business as Oscar Painting Contractor, and Oscar Painting
Contractor, LLC. On March 22, 2013, the plaintiff withdrew the action as to
these defendants, and they are not part of this appeal. Our references to
the defendant are to Nationwide Insurance Company of America.
2
Because our resolution of the plaintiff’s proximate cause claim is disposi-
tive of the appeal, we do not reach the plaintiff’s first claim.
3
In its appellate brief, the defendant presented two issues for our consider-
ation in the event we reversed the judgment and remanded the case for a
new trial. First, the defendant argued that the court improperly admitted a
video into evidence showing the horsehair plaster walls and broken keyways.
Second, the defendant claimed that the court improperly declined to sanction
the plaintiff for the intentional spoliation of evidence. Because we affirm
the court’s judgment, we do not address these issues.
4
The plaintiff’s expert, Peter Lord, explained that horsehair plaster walls
are a mixture of lime, horsehair, and sand plaster. The lime is so soft that
it relies on the sand for ‘‘density and integrity,’’ while the horsehair serves
to link the lime and the sand onto the wood laths. A lath is a ‘‘thin narrow
strip of wood nailed to . . . studding’’ and is used as a base for plaster.
Merriam-Webster’s Collegiate Dictionary (11th Ed. 2003). Walls made from
horsehair plaster, according to Lord, are a very old method that ‘‘faded out
around 1920’’ in this area.
5
As testified by Lord, keyways are formed when the plaster is coated
onto the wood laths and are used to keep the plaster in place.
6
Lord was unable to reach an opinion with a reasonable degree of probabil-
ity as to what had damaged the horsehair plaster walls. In the summer of
2012, the plaintiff removed the horsehair plaster walls and discarded the
materials, rendering it impossible for Lord to inspect the walls.