Girolametti v. Larrabee

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Girolametti v. Larrabee

JOHN GIROLAMETTI, JR., ET AL. v. JAMES R.

LARRABEE ET AL.

JOHN GIROLAMETTI ET AL. v. CITY OF DANBURY ET AL.

JOHN GIROLAMETTI ET AL. v. MICHAEL HORTON ASSOCIATES, INC.

(AC 47559)

(AC 47560)

(AC 47561)

(AC 47563)

Seeley, Wilson and Keller, Js.*

Syllabus

The defendant city of Danbury and the defendant E, the city’s deputy chief building inspector, appealed from the trial court’s judgment for the plaintiffs in their action alleging, inter alia, a statutory (§ 52-557n (b) (7) and (8)) cause of action for reckless disregard for health or safety in the issuance of permits and the making of inspections , in connection with the build-out of the plaintiffs’ party goods store. The city claimed, inter alia, that the court erred in charging the jury that the plaintiffs could recover against the city in a direct action pursuant to § 52-557n (b) (7) and (8). Held:

The trial court properly instructed the jury that the plaintiffs could recover damages in a direct action against the city pursuant to § 52-557n (b) (7) and (8), as subdivisions (7) and (8) of that statute specifically abrogate governmental immunity in circumstances in which a municipality’s conduct or that of its employee in the issuance, denial, suspension or revocation of any permit or in the making of inspections constitutes a reckless disregard for health or safety.

This court rejected the city’s alternative claim that causes of action brought pursuant to § 52-557n (b) (7) and (8) should derive only from a city policy to issue permits or conduct inspections with reckless disregard for health or safety, or a formal citywide practice to recklessly issue permits or conduct inspections that was so pervasive that it was the functional equivalent of city policy, as the language of § 52-557n (b) (7) and (8) is clear and unambiguous and did not include such a requirement.

The trial court did not err in its charge to the jury with respect to the proper legal standard for recklessness under § 52-557n (b) (7) and (8), as, to the extent

*

This case originally was argued before a panel of this court consisting of Judges Seeley, Wilson and Prescott. Thereafter, Judge Keller was substituted for Judge Prescott, and she has read the briefs and appendices, and has listened to a recording of the oral argument prior to participating in this opinion.

Girolametti v. Larrabee

the court explained common-law principles of recklessness to the jury, it properly guided the jury in determining the issues before it.

The trial court did not err in denying the defendants’ motions to set aside the verdict and for judgment notwithstanding the verdict, as there was sufficient evidence from which the jury could reasonably and legally conclude that the defendants acted in reckless disregard for health and safety under § 52-557n (b) (7) and (8).

The trial court erred in denying the city’s motion for remittitur as to the damages assessed against the city in the amount of a pretrial settlement that was reached between the plaintiffs and the plaintiffs’ architect in a separate action, as the settlement payment of $280,000, when added to the jury’s award, rendered that award excessive as a matter of law because it would have resulted in a level of compensation that so exceeded the evidence of what was fair and reasonable as to be unconscionable, and it was appropriate for the jury’s award of damages to be reduced by $280,000.

Argued April 28, 2025—officially released March 17, 2026

Procedural History

Action, in each of four cases, to recover damages for,

inter alia, negligence, and for other relief, brought to the Superior Court in the judicial district of Danbury, where

the city of Danbury intervened as a defendant in two

cases; thereafter, the cases were transferred to the judicial district of Waterbury, Complex Litigation Docket,

and consolidated for trial to a jury before Pierson, J.;

verdict for the plaintiffs; subsequently, the court denied

the motions to set aside the verdict and for judgment

notwithstanding the verdict filed by the defendant city

of Danbury et al. and rendered judgments in accordance

with the verdict; thereafter, the court denied the motion

for remittitur filed by the defendant city of Danbury,

and the defendant city of Danbury et al. appealed to this

court. Reversed in part; further proceedings.

Thomas R. Gerarde, with whom was Adam J. DiFulvio,

for the appellants (defendant city of Danbury et al.).

Brian J. Donnell, for the appellees (plaintiffs).

Tadhg Dooley filed a brief for the Connecticut Conference of Municipalities as amicus curiae.

Girolametti v. Larrabee

Opinion

WILSON, J. In this opinion, we resolve claims raised

in four separate but related appeals, Docket Nos. AC

47559, AC 47560, AC 47561, and AC 47563.1 In the four

related civil actions underlying these appeals, which

were consolidated by the trial court, the plaintiffs, John

Girolametti, Jr. (John Girolametti), Cindy Girolametti,

43 South Street, LLC (43 South Street), and Party Depot,

Inc. (Party Depot), brought claims against several defendants, including the city of Danbury (city), its deputy

chief building inspector, Edward Schullery, and various

contractors and sub-subcontractors, all of whom were

involved in the construction of an expansion to a party

goods store in Danbury that was owned by John Girolametti and Cindy Girolametti through 43 South Street.2

1

On June 14, 2024, this court consolidated the appeals that were filed in Docket Nos. AC 47559, AC 47560, and AC 47561. This court heard argument with respect to the appeal filed in Docket No. AC 47563 on April 28, 2025, the same day argument was heard with respect to the consolidated appeals.

2

The first action, Girolametti v. Danbury, Superior Court, judicial district of Waterbury, Docket No. CV-XX-XXXXXXX-S, was brought by the plaintiffs against the city; Leo P. Null; Edward Schullery; Rizzo Corporation; Michael Horton Associates, Inc.; Test-Con, Inc.; Lindade Construction, Inc.; Dominic Quaraglia Engineering; and Girard & Co. In this action, Aschettino Associates, LLC, was an intervening party.

The second action, Girolametti v. Test-Con, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-XX-XXXXXXX-S, was brought by the plaintiffs against Test-Con, Inc.; Aschettino Associates, LLC; and the city.

The third action, Girolametti v. Michael Horton Associates, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-XX-XXXXXXX-S, was brought by the plaintiffs against Michael Horton Associates, Inc.; Rizzo Corporation; VP Buildings, Inc.; Russell James Larrabee; Dominic Quaraglia Engineering, Inc.; Lindade Construction, Inc.; Aschettino Associates, LLC; Test-Con, Inc.; the city; VP Buildings, Inc. (also known as Varco Pruden Buildings, A Division of Blue Scope North America, Inc.); Blue Scope Buildings North America, Inc.; Steven J. Oakeson, P.E.; Pat Munger Construction Company, Inc.; Leo P. Null; and Edward Schullery. In this action, Brady J. Broom, P.E.; the city; and CMC/ Broom were intervening parties.

The fourth action, Girolametti v. Larrabee, Superior Court, judicial district of Waterbury, Docket No. CV-XX-XXXXXXX-S, was brought by the plaintiffs against James R. Larrabee, AIA; Aschettino Associates,

Girolametti v. Larrabee

Following a jury trial, the jury returned a verdict in

favor of the plaintiffs as against the city in the amount

of $16,593,750 and as against Schullery in the amount

of $250,000. The court rendered judgments in all four

actions in accordance with the verdict. Following the

denial of various postverdict motions filed by the defendants, the city brought three appeals—AC 47559, AC

47560, and AC 47561—from the judgments rendered in

three of the four actions in favor of the plaintiffs in accordance with the jury’s award of damages and the denial

of its motion for remittitur. In Schullery’s appeal—AC

47563—Schullery likewise brought an appeal from the

judgments rendered in three of the four actions in favor

of the plaintiffs following the denial of his postverdict

motions.3

The city claims that the court erred (1) in charging

the jury that the plaintiffs could recover damages in a

direct action against the city, pursuant to General Statutes § 52-557n (b) (7) and (8), for reckless disregard for

health or safety with respect to the issuance of permits

and the making of inspections; (2) in charging the jury

that, in deciding liability under § 52-557n (b) (7) and (8), the city, a Connecticut public entity, could be held liable

for recklessness based on the same standard of proof of

recklessness that applies to individuals; (3) in rendering

judgment against the city notwithstanding the lack of

sufficient evidence to support a jury finding of reckless

disregard for health or safety as to the issuance of permits and the making of inspections in violation of § 52-557n

LLC; Commercial Metals Company doing business as CMC Steel Fabricators, Inc., also known as CMC Joist & Deck; Steel Dynamics, Inc., doing business as New Millenium Building Systems; and Brady J. Broom, P.E. In this action, Test-Con, Inc., and the city were intervening parties.

A fifth action, Girolametti v. VP Buildings, Inc., Superior Court, judicial district of Waterbury, Docket No. CV-XX-XXXXXXX-S, was also consolidated with these four other actions, but it was later withdrawn.

One of the defendants in these actions is identified as both James R. Larrabee and Russell James Larrabee. For the sake of clarity, we refer to him as Russell James Larrabee.

3

The city and Schullery are the only defendants participating in this appeal. We refer to them collectively as the defendants and individually by name where appropriate.

Girolametti v. Larrabee

(b) (7) and (8); and (4) declining to order a remittitur as

to the damages assessed against the city in the amount

of the presuit settlement between the plaintiff and a

former defendant, Russell James Larrabee. See footnote

2 of this opinion. Schullery claims that the court erred

in rendering judgment against him notwithstanding the

lack of sufficient evidence to support a jury finding of

reckless disregard for health or safety as to the issuance

of permits and the making of inspections in violation

of § 52-557n (b) (7) and (8). We agree with the city that

the court erred in its analysis of the city’s motion for

a remittitur, and we remand the case with direction to

grant the motion for remittitur. We disagree with the

remaining claims raised by the city and the claim raised

by Schullery and, thus, affirm the judgments in all other

respects.

The complicated and prolonged facts and procedural

history underlying these appeals is cogently set forth in

the March 27, 2024 memorandum of decision of the trial

court, Pierson, J., denying the defendants’ motions to

set aside the verdict and for judgment notwithstanding

the verdict, which are a subject of the present appeal.

The court stated: “This action, which has a long history,

involve[d] the construction of a commercial building

at 43 South Street, Danbury, Connecticut (property),

used for operating a wholesale and retail party goods

store. The plaintiffs allege[d] that in June, 2007, a nonparty—Rizzo Corporation (Rizzo)—contracted with

. . . John [Girolametti] to provide construction, professional engineering, and architectural services for the

construction of a building at the property, known as

the ‘Party Depot building.’ Rizzo filed documents with

the city Department of Buildings for the purpose of

obtaining building permits, required inspections, and

a certificate of occupancy for the Party Depot building.

The plaintiffs [alleged] that, despite the inadequacy of

these filings—including without limitation, the failure to

meet requirements imposed by the . . . General Statutes

and building code of the state of Connecticut (code)—the

city Department of Buildings issued building permits

Girolametti v. Larrabee

for construction of the Party Depot building and issued

certificates of occupancy and compliance.

“The plaintiffs further allege[d] that the defendants,

Leo P. Null,4 as the city’s chief building inspector, and . . . Schullery, as the city’s deputy building inspector, administered the code and issued building permits, inspected

work, and reviewed construction documents relating to

the property. The plaintiffs also claim[ed] that Null and

Schullery had a continuing duty to enforce the code, at

least from the time the construction project documents

were received for review through the time a certificate

of occupancy was issued, and, further, that they had a

continuing duty to respond to inquiries and notices relating to health, safety, and noncompliance with the code,

following the issuance of the certificate of occupancy. The

plaintiffs relied upon the defendants to carry out their

duties as required by the code and other applicable law.

“In the first count [of their complaint], the plaintiffs

[alleged] that the defendants acted in reckless disregard

for the health and safety of the plaintiffs, their employees, and others entering upon the property, under . . .

§ 52-557n (b) (7), in a variety of ways, including by failing to require the timely and complete filing of permit

application documents prior to issuing permits; issuing

a foundation permit when the design of the foundation

was incomplete and not coordinated with the design of

the structure above the foundation; issuing a building

permit when the building design was incomplete; failing

to require the filing of adequate construction documentation prior to the performance of construction work;

failing to inspect ongoing construction work properly;

issuing a certificate of occupancy despite incomplete

documentation, when the work performed failed to conform with documentation on file, and despite improper

inspections; failing and refusing to investigate fully and

in a timely manner numerous instances of noncompliance

with the code; stating that the building was constructed

properly when it was not so constructed; and failing to

4

“Following his death, the claims against . . . Null were withdrawn.”

Girolametti v. Larrabee

administer the code. Further, according to the plaintiffs,

by failing to perform their duty to enforce the provisions

of the code, the defendants knew that various aspects of

the project did not meet basic code standards, and they

knew—or it was foreseeable to them—that the overall

structure failed to meet basic standards for the applicable

building type under the code.

“In the second count, the plaintiffs allege[d] that the

defendants failed to inspect the property, or made inadequate or negligent inspections of the property, where

such failure constituted a reckless disregard for health

and safety under all the relevant circumstances, under

. . . § 52-557n (b) (8), repeating some of the specifications of wrongdoing alleged in the first count, and, further,

claiming that the defendants withheld information,

including an evaluation by a city retained engineer, that

confirmed the existence of code violations, as well as the

defective design and construction of the project.

“The plaintiffs argued and presented evidence at trial

in support of a finding that the Party Depot building

developed extensive cracking in the concrete slab of the

second floor of the new portion of the building, and was

otherwise plagued by structural problems and design

defects, all of which posed a risk to public health and

safety, thereby limiting the plaintiffs’ use of the Party

Depot building and causing them to suffer economic

damages.

“The consolidated actions were tried before a jury . . .

over a period of five weeks, in September and October,

2023. During the trial, numerous witnesses—both lay

and expert—testified, and hundreds of documents were

received into evidence. At the conclusion of the plaintiffs’ case, both the city and Schullery moved for a directed

verdict; the court reserved decision on the motions. .

. . Following the conclusion of evidence and the court’s

charge to the jury on the applicable law, the jury returned

verdicts in favor of the plaintiffs on the first and second counts of the complaint against the city and Schullery, having found (1) that the defendants acted with

Girolametti v. Larrabee

reckless disregard for health and safety in issuing building permits and/or a certificate of occupancy for the construction project, in violation of § 52-557n, and (2) that

the defendants acted with reckless disregard for health

and safety in undertaking or conducting inspections

and/or failing to conduct inspections, also in violation of

§ 52-557n. . . . The jury awarded a total of $16,843,750

to the plaintiffs as follows: (1) $16,593,750 against the

city and (2) $250,000 against Schullery. . . .5

“Following the jury verdict, the defendants moved to

set aside the verdict and for judgment notwithstanding

the verdict, renewing arguments made in the motions for

directed verdict. . . . In its motion, the city argued, inter alia, that a municipality is ‘legally incapable’ of committing acts in reckless disregard of health or safety when

issuing permits or conducting inspections; alternatively,

the city contended that any theory of liability based on

reckless disregard for health or safety would have to be

based on a formal, citywide policy, or a practice so pervasive that it was the functional equivalent of a formal

policy, and that no evidence of such policies or practices

was introduced at trial. The defendants also argued that

insufficient evidence was introduced to support a finding

that the defendants acted with reckless disregard for

health and safety, as provided by § 52-557n (b) (7) and

(8).” (Citations omitted; footnotes in original; footnote

omitted.) The court denied both postverdict motions, as

well as a motion for remittitur filed by the city. These

appeals followed.

I

AC 47559, AC 47560, and AC 47561

We begin by addressing the claims raised by the city

in AC 47559, AC 47560 and AC 47561. First, the city

claims that the trial court erred in charging the jury that

the plaintiffs could recover damages in a direct action

5

“Prior to the trial . . . the court, Bellis, J., [rendered] summary judgment in favor of the defendants on the third count of the third amended complaint. . . . The jury found in favor of Schullery on the fourth and final count of the complaint.” (Citation omitted.)

Girolametti v. Larrabee

against the city pursuant to § 52-557n (b) (7) and (8) for

reckless disregard for health or safety with respect to

the issuance of permits and the making of inspections.

In connection with this claim, the city argues that it was

categorically immune from liability and, in the alternative, liability depended on evidence of the functional

equivalent of a city policy with respect to the issuance

of permits and the making of inspections. Second, the

city claims that the court erred in charging the jury that

the city, a Connecticut public entity, can be held liable

for recklessness based on the same standard of proof of

recklessness that applies to individuals, when deciding

liability under § 52-557n (b) (7) and (8). Third, the city

claims that the court erred in rendering judgment against

the city notwithstanding the lack of sufficient evidence

to support a jury finding of reckless disregard for health

or safety as to the issuance of permits and the making

of inspections in violation of § 52-557n (b) (7) and (8).

Finally, the city claims that the court erred in declining

to order a remittitur as to the damages assessed against

it in the amount of the presuit settlement between the

plaintiffs and Larrabee. We will address each claim in

turn.6

A

Before examining the city’s claims challenging the

court’s jury charge, we set forth the standard of review

and legal principles applicable to the city’s claims of

instructional error.7 “A challenge to the validity of jury

instructions presents a question of law. Our review of

this claim, therefore, is plenary. . . . When reviewing [a]

6

The Connecticut Conference of Municipalities has submitted an amicus curiae brief in which it sets forth arguments that support the city’s appeal and in which it argues that the trial court’s application of § 52-557n (b) conflicts with the statute’s text, context, and purpose, that permitting direct liability against the city in the present circumstances “would have devastating and perverse consequences for Connecticut municipalities,” and that direct liability against a municipality for recklessness in licensing and inspection should be based on “a municipal policy or practice of ignoring a particular risk of harm.”

7

Practice Book § 42-16 provides in relevant part that “[a]n appellate court shall not be bound to consider [an instructional] error . . . unless

Girolametti v. Larrabee

challenged jury instruction . . . we must adhere to the well settled rule that a charge to the jury is to be considered

in its entirety, read as a whole, and judged by its total

effect rather than by its individual component parts. .

. . [T]he test of a court’s charge is not whether it is as

accurate upon legal principles as the opinions of a court

of last resort but whether it fairly presents the case to

the jury in such a way that injustice is not done to either

party under the established rules of law. . . . As long as

[the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury . . . we will

not view the instructions as improper. . . . Therefore,

[o]ur standard of review on this claim is whether it is

reasonably probable that the jury was misled.” (Citation

omitted; internal quotation marks omitted.) Zhuleku

v. Naugatuck Valley Radiology Associates, 232 Conn.

App. 143, 155, 336 A.3d 101, cert. denied, 352 Conn.

907, 335 A.3d 846 (2025).

1

The city’s first claim of instructional error is that

it was improper for the court to instruct the jury that

the plaintiffs could recover damages in a direct action

against the city pursuant to § 52-557n (b) (7) and (8) for

reckless disregard for health or safety with respect to

the issuance of permits and the making of inspections.

The city argues that, in the circumstances of this case, it

is categorically immune from liability under § 52-557n.

We disagree.

The city’s claim that it is categorically immune from

liability turns on our interpretation of § 52-557n (b) (7)

and (8). “When construing a statute, [o]ur fundamental

objective is to ascertain and give effect to the apparent

intent of the legislature. . . . In other words, we seek to

determine, in a reasoned manner, the meaning of the

the matter is covered by a written request to charge or exception has been taken . . . .”

The city preserved its present claims of instructional error, first, by means of a written request to charge and, second, by means of exceptions taken to the charge.

Girolametti v. Larrabee

statutory language as applied to the facts of [the] case,

including the question of whether the language actually

does apply. . . . General Statutes § 1-2z directs this court to first consider the text of the statute and its relationship to other statutes to determine its meaning. If, after such

consideration, the meaning is plain and unambiguous

and does not yield absurd or unworkable results, we shall

not consider extratextual evidence of the meaning of the

statute. . . . Only if we determine that the statute is not

plain and unambiguous or yields absurd or unworkable

results may we consider extratextual evidence of its

meaning such as the legislative history and circumstances

surrounding its enactment . . . the legislative policy it

was designed to implement . . . its relationship to existing legislation and common law principles governing the

same general subject matter . . . . The test to determine

ambiguity is whether the statute, when read in context,

is susceptible to more than one reasonable interpretation. . . . We presume that the legislature did not intend

to enact meaningless provisions. . . . [S]tatutes must be

construed, if possible, such that no clause, sentence or

word shall be superfluous, void or insignificant . . . .

“Furthermore, [i]n the construction of the statutes,

words and phrases shall be construed according to the

commonly approved usage of the language; and technical

words and phrases, and such as have acquired a peculiar

and appropriate meaning in the law, shall be construed

and understood accordingly. . . . If a statute or regulation does not sufficiently define a term, it is appropriate

to look to the common understanding of the term as

expressed in a dictionary.” (Internal quotation marks

omitted.) L. L. v. M. B., 216 Conn. App. 731, 740, 286

A.3d 489 (2022); see also Westport Taxi Service, Inc. v.

Westport Transit District, 235 Conn. 1, 40, 664 A.2d 719

(1995) (“no statutory phrase or word will be interpreted

as superfluous”).

In addressing the city’s claim of instructional error,

which requires this court to interpret the language in

§ 52-557n, “it is helpful to look at § 52-557n as a whole.

Girolametti v. Larrabee

As a matter of Connecticut’s common law, the general

rule . . . is that a municipality is immune from liability

for negligence unless the legislature has enacted a statute abrogating that immunity. . . . The tort liability of

a municipality has been codified in § 52-557n.” (Citation

omitted; internal quotation marks omitted.) Costanzo

v. Plainfield, 344 Conn. 86, 106, 277 A.3d 772 (2022).

Section 52-557n (a) provides in relevant part: “(1)

Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or

property caused by: (A) The negligent acts or omissions

of such political subdivision or any employee, officer or

agent thereof acting within the scope of his employment

or official duties . . . . (2) Except as otherwise provided

by law, a political subdivision of the state shall not be

liable for damages to person or property caused by . . .

(B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of

the authority expressly or implicitly granted by law. .

. .” (Emphasis added.) “Thus, the statute provides that

municipalities shall be liable for harm caused by ministerial acts in subsection (a) (1) (A) but shall not be liable for harm caused by discretionary acts in subsection (a)

(2) (B).” Ugrin v. Cheshire, 307 Conn. 364, 382, 54 A.3d

532 (2012).

Subsection (b) of the statute further provides in relevant part: “Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope

of his employment or official duties shall not be liable

for damages to person or property resulting from . . .

(7) the issuance, denial, suspension or revocation of, or

failure or refusal to issue, deny, suspend or revoke any

permit, license, certificate, approval, order or similar

authorization, when such authority is a discretionary

function by law, unless such issuance, denial, suspension

or revocation or such failure or refusal constitutes a reckless disregard for health or safety [or] (8) [the] failure to make an inspection or making an inadequate or negligent

Girolametti v. Larrabee

inspection of any property, other than property owned

or leased by or leased to such political subdivision, to

determine whether the property complies with or violates

any law or contains a hazard to health or safety, unless

the political subdivision had notice of such a violation

of law or such a hazard or unless such failure to inspect

or such inadequate or negligent inspection constitutes

a reckless disregard for health or safety under all the

relevant circumstances . . . .” (Emphasis added.) General

Statutes § 52-557n (b) (7) and (8). “Because subsection

(b) begins with the words [n]otwithstanding the provisions of subsection (a), the two parts of the statute are

not interdependent, and subsection (b) may be construed

without reference to subsection (a). Subsection (b) thus

should be generally understood to define various circumstances in which a municipality is not subject to liability.” (Internal quotation marks omitted.) Ugrin v. Cheshire,

supra, 307 Conn. 381.

The statutory term “unless,” which appears in

§ 52-557n (b) (7) and (8), “is almost universally defined

as an exception to another circumstance. See Webster’s

Third New International Dictionary (2002) [p. 2503]

(defining ‘unless’ as ‘under any other circumstance than

that: except on the condition that’); American Heritage

Dictionary of the English Language (5th Ed. 2011) [p.

1896] (defining ‘unless’ as ‘[e]xcept on the condition

that; except under the circumstances that’); Random

House Unabridged Dictionary (2d Ed. 1993) [p. 2080]

(defining ‘unless’ as ‘except under the circumstances

that . . . except’). To the extent [our Supreme Court]

previously has construed the term, it has done so consistently with the foregoing definitions. See State v.

Ray, 290 Conn. [602, 614, 966 A.2d 148] (2009) (words

‘unless’ or ‘except’ typically connote exception); State

v. Anonymous, 179 Conn. 516, 518–19, 427 A.2d 403

(1980) (word ‘unless’ refers to exception) . . . .” Ugrin v. Cheshire, supra, 307 Conn. 381–82.

It is therefore reasonable to conclude that the legislature’s use of the word “unless” in subsection (b) (7)

Girolametti v. Larrabee

and (8) of § 52-557n expresses a legislative intent to set

that subsection apart from the preceding language of

the statute protecting municipalities from liability. In

Ugrin, our Supreme Court, interpreting § 52-557n (b)

(8), stated that “[t]he word ‘unless’ before [each of the

two exceptions in subsection (b) (8) pertaining to failure

to inspect and inadequate inspection] unmistakably sets

them apart from the preceding language that otherwise

protects municipalities from liability for failure to make

an inspection or for making an inadequate inspection

because it describes conditions under which there is no

protection from liability.” (Emphasis omitted.) Ugrin v.

Cheshire, supra, 307 Conn. 382. The court also reasoned

that, “if we do not interpret the language following the

word ‘unless’ in § 52-557n (b) (8) according to its clear

meaning as an exception to the general rule that failure

to make an inspection or to make an adequate inspection

does not give rise to municipal liability, more than one

half of the provision will be rendered superfluous.” Id.,

383. It legally and logically follows that the interpretation utilized in Ugrin applies to the legislature’s identical use of the word “unless” in § 52-557n (b) (7), which

applies to the issuance of permits. We are also mindful

that, in determining the meaning of a statute, every

part of the statute should be afforded meaning. See,

e.g., Vibert v. Board of Education, 260 Conn. 167, 176,

793 A.2d 1076 (2002) (“[I]n interpreting a statute, we

do not interpret some clauses of a statute in a manner

that nullifies other clauses but, rather, read the statute

as a whole in order to reconcile all of its parts. . . . Every word and phrase is presumed to have meaning, and we

do not construe statutes so as to render certain words

and phrases surplusage.”(Citation omitted; internal

quotation marks omitted.)).

Thus, by its express terms, subsection (b) (7) of

§ 52-557n contemplates the imposition of liability on a

municipality in cases where a “permit, license, certificate, approval, order or similar authorization” is issued with

“a reckless disregard for health or safety . . . .” Subsection (b) (8) of § 52-557n contemplates the imposition

Girolametti v. Larrabee

of liability where a failure to inspect or inadequate or

negligent inspection of property has occurred and such

failure or negligent inspection constitutes a “reckless

disregard for health or safety under all the relevant

circumstances . . . .”

In support of its claim that the provisions of § 52-557n

(b) (7) and (8) do not allow for a direct action against a

municipality, the city also argues that “[t]o hold that

[§ 52-557n (b) (7) and (8)] expose a Connecticut municipality to a direct suit for recklessness, with standard of

proof and liability coextensive with that of a reckless

individual employee, is antithetical to the purpose of tort

reform, as well as directly inconsistent with the legislative protections provided in [General Statutes] §§ 7-465,

7-101a and 10-235 against municipal liability for the

reckless acts of employees.” The city further argues that,

“[u]nlike private corporations, the doctrine of respondeat

superior [or vicarious liability] does not apply to Connecticut municipal corporations [and] a municipality

can only be sued if the Connecticut legislature has passed

a law allowing such suit.” The city also contends that

“[t]he statutes that allow a suit against a Connecticut

municipality uniformly hold that the municipality will

not be liable for acts of employees that are wilful, malicious, wanton, or reckless, all of which are treated the

same under Connecticut law. Specifically . . . §§ 7-465,

7-101a and 10-235 all contain provisions that a Connecticut municipality will not be liable for the reckless act of

the employee.” The city argues that this court should

harmonize the provisions of § 52-557n (b) (7) and (8) with

statutes in existence at the time of its passage, including

§§ 7-465, 7-101a and 10-235, and that “harmonization”

of the statutory provisions could be easily achieved “by

recognizing that [§ 52-557n (b) (7) and (8)] are disjunctive [subsections] whose provisions apply to municipalities or

employees and limit the protection of immunity where

there is notice of a dangerous condition or [where] there

is [a] reckless disregard for health or safety.” (Emphasis in original.) The city contends that, if § 52-557n (b)

(7) and (8) are harmonized with the aforementioned

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indemnification statutes, it would logically lead to the

conclusion that “the reckless exception to immunity in

§ 52-557n (b) (7) and (8) only applies to the actions of a

municipal employee, and not to a municipality . . . .”

For several reasons, we are not persuaded by the city’s

interpretation of the statutory language at issue. Essentially, what the city is asking this court to do is to rewrite the plain language of § 52-557n in subsection (b) (7) and

(8) and to construe the statute as an indemnification

statute like §§ 7-465, 7-101a and 10-235, which require

a municipality to indemnify a municipal employee for

damages resulting from conduct by a municipal employee

while the employee was acting within the scope of his or

her employment, and was not the result of wilful, wanton,

reckless, or malicious conduct. We are not persuaded by

the city’s arguments because the city’s interpretation of

the statute contradicts its plain meaning. As we previously have discussed, under our guiding principles of

statutory interpretation, this court looks to the plain

language of the statute to determine its meaning and

legislative intent. “We are bound to interpret legislative

intent by referring to what the legislative text contains,

not what it might have contained. . . . We will not read

into clearly expressed legislation provisions which do not

find expression in its words. . . . [W]e are [also] guided by the principle that the legislature is always presumed to

have created a harmonious and consistent body of law . .

. . [T]his tenet of statutory construction . . . requires us to read statutes together when they relate to the same

subject matter . . . . Accordingly, [i]n determining the

meaning of a statute . . . we look not only at the provision at issue, but also to the broader statutory scheme

to ensure the coherency of our construction.” (Citation

omitted; internal quotation marks omitted.) GamezReyes v. Biagi, 136 Conn. App. 258, 274, 44 A.3d 197,

cert. denied, 306 Conn. 905, 52 A.3d 731 (2012).

The city correctly points out that allowing a direct

cause of action against a municipality is a significant

departure from general common-law principles. “A

municipality itself was generally immune from liability

Girolametti v. Larrabee

for its tortious acts at common law . . . . Furthermore, [a]t common law, municipal officers were liable for their own

torts, but the municipality, their municipal master, was

not vicariously liable for those torts. . . . Governmental

immunity may, however, be abrogated by statute. The

state legislature possesses the authority to abrogate any

governmental immunity that the common law gives to

municipalities. . . . The general rule developed in the

case law is that a municipality is immune from liability

unless the legislature has enacted a statute abrogating

that immunity. . . . Statutes that abrogate or modify

governmental immunity are to be strictly construed. .

. . This rule of construction stems from the basic principle that when a statute is in derogation of common

law or creates a liability where formerly none existed,

it should receive a strict construction and is not to be

extended, modified, repealed or enlarged in its scope

by the mechanics of construction.” (Citations omitted;

internal quotation marks omitted.) Spears v. Garcia, 66

Conn. App. 669, 677–78, 785 A.2d 1181 (2001), aff’d,

263 Conn. 22, 818 A.2d 37 (2003).

Contrary to the city’s arguments, the language of

§ 52-557n (b) (7) and (8) is clear and unambiguous with

respect to vicarious liability. The language therein plainly reflects the legislature’s intent to abrogate governmental

immunity that the common law gives to municipalities

with respect to vicarious liability. In light of the unambiguous language in subdivisions (7) and (8) of § 52-557n

(b), it is unnecessary for us to seek out extratextual

guidance with respect to the legislature’s intent. See id.,

678–79 (“[b]ecause the words of the statute themselves

are clear on the matter, we need not embark on an inquiry

into the legislative history” ).

The city further argues that allowing a direct action

under § 52-557n (b) (7) and (8) would be inconsistent with

the legislative protections provided in §§ 7-465,8

8

General Statutes § 7-465 provides in relevant 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 . . . all sums which such employee becomes obligated to

Girolametti v. Larrabee

7-101a9 and 10-23510 against municipal liability for the

reckless acts of employees. We disagree with the city and

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 set forth in this section, if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty. . . .”

9

General Statutes § 7-101a provides in relevant part: “(a) Each municipality shall protect and save harmless any municipal officer, whether elected or appointed, of any board, committee, council, agency or commission, including any member of a local emergency planning committee appointed from such municipality pursuant to section 22a-601, or any municipal employee, of such municipality from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence, or for alleged infringement of any person’s civil rights, on the part of such officer or such employee while acting in the discharge of his duties.

“(b) In addition to the protection provided under subsection (a) of this section, each municipality shall protect and save harmless any such municipal officer or municipal employee from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand or suit instituted against such officer or employee by reason of alleged malicious, wanton or wilful act or ultra vires act, on the part of such officer or employee while acting in the discharge of his duties. In the event such officer or employee has a judgment entered against him for a malicious, wanton or wilful act in a court of law, such municipality shall be reimbursed by such officer or employee for expenses it incurred in providing such defense and shall not be held liable to such officer and employee for any financial loss or expense resulting from such act. . . .”

10

General Statutes § 10-235 provides in relevant part: “(a) Each board of education shall protect and save harmless any member of such board or any teacher or other employee thereof or any member of its supervisory or administrative staff, and the State Board of Education, the Board of Regents for Higher Education, the board of trustees of each state institution and each state agency which employs any teacher, and the managing board of any public school, as defined in section 10-183b, including the governing council of any charter school, shall protect and save harmless any member of such boards, or any teacher or other employee thereof or any member of its supervisory or administrative staff employed by it, from financial loss and expense, including legal fees and costs, if any, arising out of any claim, demand, suit or judgment by reason of alleged negligence or other act resulting in accidental bodily injury to or death of any person, or in accidental damage to or destruction of property, within or without the school building, or any other acts, including, but not limited to, infringement of any person’s

Girolametti v. Larrabee

conclude that §§ 7-465, 7-101a and 10-235 can be read

to coexist with § 52-557n (b) (7) and (8). Under §§ 7-465,

7-101a and 10-235, a municipal employer is required

to indemnify its employees for any judgment rendered

against them under certain circumstances. Pursuant

to § 52-557n (b) (7) and (8), governmental immunity is

abrogated under certain circumstances. Under subsection (b) (7), those circumstances include the issuance,

denial, suspension or revocation of any permit or the

failure or refusal to issue, deny, suspend or revoke any

permit where such failure or refusal constitutes a reckless disregard for health or safety. Under subsection (b)

(8), those circumstances include the failure to make an

inspection or the making of an inadequate or negligent

inspection that constitutes a reckless disregard for health

or safety under all the relevant circumstances. Nowhere

in the plain language of subdivisions (7) and (8) does the

legislature mention or reference §§ 7-465, 7-101a and

10-235. Had the legislature intended to exclude reckless

conduct on the part of a municipality or its employees

in the issuance of permits or the making of inspections

it could have done so. To the contrary, the legislature

has specifically abrogated immunity in circumstances

in which a municipality’s or its employees’ conduct in

the issuance of permits or the making of inspections

constitutes a reckless disregard for health or safety. “It

is a well established principle of statutory interpretation

that we cannot accomplish a result that is contrary to the

intent of the legislature as expressed in the [statute’s]

plain language. . . . [A] court must construe a statute

as written. . . . Courts may not by construction supply

omissions . . . . The intent of the legislature, as this court civil rights, resulting in any injury, which acts are not wanton, reckless or malicious, provided such teacher, member or employee, at the time of the acts resulting in such injury, damage or destruction, was acting in the discharge of his or her duties or within the scope of employment or under the direction of such board of education, the Board of Regents for Higher Education, board of trustees, state agency, department or managing board; provided that the provisions of this section shall not limit or otherwise affect application of section 4-165 concerning immunity from personal liability. . . .”

Girolametti v. Larrabee

has repeatedly observed, is to be found not in what the

legislature meant to say, but in the meaning of what it

did say. . . . In the absence of any indication of the legislature’s intent concerning this issue, we cannot engraft

language onto the statute. . . . [W]e will not impute to

the legislature an intent that is not apparent from unambiguous statutory language in the absence of a compelling reason to do so. Rather, [w]e are bound to interpret

legislative intent by referring to what the legislative

text contains, not by what it might have contained. . . .

It is not the function of the courts to enhance or supplement a statute containing clearly expressed language.”

(Citation omitted; internal quotation marks omitted.)

McCullough v. Swan Engraving, Inc., 320 Conn. 299,

309, 130 A.3d 231 (2016).

In Ugrin v. Cheshire, supra, 307 Conn. 382, our

Supreme Court concluded that Ҥ 52-557n (b) (8) abrogates the traditional common-law doctrine of municipal

immunity, now codified by statute, in the two enumerated

circumstances [described therein]” and that subsection

(b) (8) allows for a direct action against a municipality.

For the reasons discussed herein, we are likewise persuaded that this same conclusion applies to subsection (b)

(7) of the statute. This court therefore rejects the city’s

argument that the trial court improperly instructed the

jury because, under § 52-557n (b) (7) and (8), a municipality is categorically immune from liability in recklessness

when issuing permits or conducting inspections.

2

In the alternative, the city claims that, if this court

were to conclude that subdivisions (7) and (8) of § 52-557n

(b) authorize a direct action for recklessness against a

Connecticut municipality, such cause of action should

derive only from a city policy to issue permits or conduct

inspections with reckless disregard for health or safety,

or a formal citywide practice to recklessly issue permits

or conduct inspections that is so pervasive that it was

the functional equivalent of city policy. The city relies

on Williams v. Housing Authority, 327 Conn. 338, 174

Girolametti v. Larrabee

A.3d 137 (2017), to support this argument. We reject

the city’s alternative claim.

This court first observes that such a requirement is

wholly absent from the plain language in § 52-557n (b) (7)

and (8) pertaining to the imposition of liability for recklessness. As we have thoroughly discussed in part I A 1 of

this opinion, on the basis of our well established principles of statutory construction, we “will not impute to the legislature an intent that is not apparent from unambiguous

statutory language in the absence of a compelling reason

to do so. Rather, [w]e are bound to interpret legislative

intent by referring to what the legislative text contains,

not by what it might have contained. . . . It is not the

function of the courts to enhance or supplement a statute

containing clearly expressed language.” (Internal quotation marks omitted.) McCullough v. Swan Engraving,

Inc., supra, 320 Conn. 309. The language of § 52-557n

(b) (7) and (8) is clear and unambiguous and does not

include the requirement of a formal citywide policy or

pervasive practice to impose liability on a municipality for recklessness. We decline the city’s invitation to

engraft such a requirement onto the statute.

In connection with this claim, we also must address

the city’s misplaced reliance on our Supreme Court’s

decision in Williams v. Housing Authority, supra, 327

Conn. 338. In Williams, the administratrix of the estates

of four residents of a public housing unit that was owned

and maintained by the city of Bridgeport brought an

action against the fire department and Bridgeport city

officials. Id., 341. The plaintiff alleged that the decedents died as a result of the municipal defendants’ negligent

failure to inspect the smoke detection equipment in their

unit, where the fire occurred on November 13, 2009. Id.,

341–42. “Pursuant to General Statutes § 29-305 (b), the

Bridgeport fire marshal’s office [was] required to conduct

annual inspections of all multifamily residential units

within Bridgeport. It is undisputed that neither the

municipal defendants nor their employees conducted

the mandatory inspection of [the subject unit] in the

Girolametti v. Larrabee

year prior to November 13, 2009.” (Footnote omitted.)

Id., 342–43.

The plaintiff in Williams brought an action and

alleged, in part, that the decedents died as a result of the negligent failure of the municipal defendants to inspect

the smoke detection equipment in the decedents’ unit.

Id., 341. The trial court rendered summary judgment

in favor of the municipal defendants after concluding

that § 52-557n afforded them immunity from liability.

Id. Following an appeal from that judgment, this court

reversed the judgment of the trial court. Id. Thereafter,

our Supreme Court in Williams affirmed this court’s

determination that “a jury reasonably could find that

the conduct of the municipal defendants demonstrated

a reckless disregard for health or safety under all of

the relevant circumstances and, therefore, that they

were potentially liable pursuant to § 52-557n (b) (8).”

(Internal quotation marks omitted.) Id. Our Supreme

Court observed that the various submissions presented

in connection with the motion for summary judgment

“construed in the light most favorable to the plaintiff as

the nonmoving party, suggest that, over the course of

many years, the municipal defendants maintained a policy of not conducting any routine fire safety inspections

of the thousands of public housing units in Bridgeport

in the absence of a complaint or request, and also of not

routinely inspecting certain of its more than 3000 threefamily homes, in violation of their statutory duty under

[General Statutes] § 29-305 (b). These policies remained

in effect after 2005, despite the fact that the failure to

inspect allegedly resulted in multiple fatalities during

[an earlier fire that occurred in a three-family residence

in Bridgeport in 2005].” (Emphasis omitted; footnote

omitted.) Id., 369. Our Supreme Court agreed with this

court that, “[i]n light of this factual record . . . a jury, considering all the relevant circumstances, reasonably

could find that the municipal defendants’ persistent

failure to inspect [the decedents’ unit] and thousands of

others like it both arose from and exemplified a pattern of

reckless disregard for public health or safety.” Id., 371.

Girolametti v. Larrabee

It is important to observe that, although Williams was

decided based on a record that involved “[the] defendants’

long-standing policy of not inspecting any of Bridgeport’s public or three-family housing facilities for fire

risks and not educating themselves as to the adequacy

of the housing authority’s own internal inspections”;

id., 359; neither the language in the majority’s opinion,

nor the language in the statute, limit the imposition of

liability for recklessness under § 52-557n (b) (8) to cases

involving established municipal policies or practices.

Rather, in interpreting subsection (b) (8), our Supreme

Court in Williams focused on “the legislature’s use of the

modifying phrase ‘under all the relevant circumstances’

. . . [which] suggests that we are to view the exception

through a broad lens.” (Citation omitted; emphasis in

original.) Id., 358. The court then proceeded to list a

number of factors, in the context of a failure to inspect,

that may be relevant to the determination of recklessness, and which factors are not limited solely to a formal,

citywide policy or pervasive practice.11 Id.

In light of the foregoing, we are not persuaded by the

city’s argument that liability under § 52-557n (b) (8) must

be linked to the existence of a city policy. In our view, the court’s reliance on a city policy in Williams was the result

11

“In the context of a failure to inspect, it is reasonable to assume that any of the following factors, among others, may be relevant [in determining recklessness under [§ 52-557n (b) (8)]: whether the inspection is mandated by statute or regulation; how frequently inspections are required to be conducted; the nature and severity of the threat to health or safety that the inspection is intended to identify or thwart; whether, and how frequently, threats of that sort have come to pass in the past, either at the location in question or at similar locations; whether the premises involved featured any unique or atypical susceptibilities to risk; the reasons why the inspection was not conducted; whether the failure to inspect was an isolated event or part of a policy or pattern; the number of properties or locations that went without inspection; whether other municipalities or jurisdictions routinely neglect to carry out inspections of the type at issue; the availability and adequacy of alternative means of identifying and thwarting the threats at issue; and whether the municipal officials involved were aware or should have been aware of the answers to each of these questions.” Williams v. Housing Authority, supra, 327 Conn. 358–59.

Girolametti v. Larrabee

of the facts before it, not a conclusion that subsection (b) (8) applied only when such a policy exists. Accordingly,

we conclude that the city’s argument reflects an unduly

narrow interpretation of Williams.12

3

The city next claims that the court erred in charging

the jury on general common-law principles of recklessness. Specifically, the city argues that the trial court

erred in charging the jury that the standard for recklessness applicable to individuals at common law applies to

a municipality when deciding municipal liability under

§ 52-557n (b) (7) and (8). We are not persuaded by the

city’s argument.

In determining what constitutes recklessness for purposes of § 52-557n (b) (7) and (8), we are guided, in part,

by relevant precedent. In Williams v. Housing Authority,

159 Conn. App. 679, 124 A.3d 537 (2015), aff’d, 327

Conn. 338, 174 A.3d 137 (2017), this court concluded

that “the common-law definition of recklessness [is]

instructive for purposes of interpreting the exception

for recklessness in § 52-557n (b) (8).”13 Id., 694. While

12

We acknowledge that the court in Williams was called upon to interpret the language set forth in § 52-557n (b) (8). It viewed that statute, when defining “reckless disregard for health and safety under all the relevant circumstances,” through “a broad lens.” (Emphasis omitted.) Williams v. Housing Authority, supra, 327 Conn. 358. As we interpret the language in subsection (b) (7), we nonetheless take guidance from Williams as we consider the city’s argument that liability under either subsection (b) (7) or (8) depends on the existence of a city policy. Subsection (b) (7), like subsection (b) (8), does not explicitly depend on the existence of, nor refer to, a city policy. Thus, we are not persuaded that subsection (b) (7) requires that a cause of action against a municipality under that subsection of § 52-557n should derive only from a city policy to issue permits with reckless disregard for health or safety, or a formal citywide practice to recklessly issue permits that is so pervasive that it was the functional equivalent of city policy.

13

In Williams, this court looked to common-law jurisprudence for guidance in defining reckless disregard for health and safety under § 52-557n (b) (8). The court stated: “Under Connecticut common law, [r]ecklessness requires a conscious choice of a course of action either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable

Girolametti v. Larrabee

noting that common-law principles of recklessness are

instructive in applying § 52-557n (b), in light of the statute’s language “reckless disregard for health or safety,”

our Supreme Court in Williams modified these principles with respect to the probability of risk. Williams

v. Housing Authority, supra, 327 Conn. 363–64. The

court “recogniz[ed] that the magnitude of a potential risk

generally is understood to be the product of the likelihood

that [the person’s] conduct will injure others [multiplied

by] the seriousness of the injury if it happens . . . . It is true that this court, on occasion, has suggested that a

defendant is guilty of reckless misconduct only when

he knows or should know that there is a high degree of

probability that substantial harm will result from his

actions. . . . In most instances, however, we have defined

recklessness simply as disregarding a high degree or substantial risk of danger, leaving open the question whether

it may be reckless to engage in conduct that carries a

relatively low likelihood of causing momentous harm. .

. . In any event, regardless of what standards govern

allegations of recklessness in other contexts, we conclude

that, in the context of § 52-557n (b) (8), a municipal actor may demonstrate reckless disregard for health or safety

when it is clear that the failure to inspect may result in

a catastrophic harm, albeit not a likely one.” (Citations

omitted; emphasis altered; footnote omitted; internal

quotation marks omitted.) Id.

[person], and the actor must recognize that his conduct involves a risk substantially greater . . . than that which is necessary to make his conduct negligent. . . . More recently, we have described recklessness as a state of consciousness with reference to the consequences of one’s acts. . . . It is more than negligence, more than gross negligence. . . . The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them. . . . The result is that . . . reckless conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.” (Emphasis in original; internal quotation marks omitted.) Williams v. Housing Authority, supra, 159 Conn. App. 693–94.

Girolametti v. Larrabee

It is important to point out that, while affirming that

common-law principles of recklessness are instructive in

determining what constitutes “a reckless disregard for

health and safety” under § 52-557n (b) (7) and (8), our

Supreme Court also focused on the language “under all

the relevant circumstances” as it appears in § 52-557n

(b) (8), which the court determined “suggests we are to

view the exception [under subsection (b) (8)] through a

broad lens.” Williams v. Housing Authority, supra, 327

Conn. 358. The court considered this language meaningful and not surplusage in light of the omission of similar

language in subsection (b) (7). See id. (“[w]e must assume

that the legislature’s decision to include the ‘relevant

circumstances’ language in subdivision (8), but to omit it

from the otherwise identical exclusion provision in subdivision (7), was a purposeful one”). The court then listed

a number of factors in the context of a failure to inspect

that would be relevant when assessing the recklessness

of a municipality’s decision not to conduct a health or

safety inspection.14 Id., 358–59. The court ultimately

concluded that “the type of conduct that constitutes

reckless disregard [for health or safety] for purposes of

§ 52-557n (b) (8) is more egregious than mere negligence

and requires that health and safety inspectors disregard

a substantial risk of harm.” Id., 366.

More importantly, our Supreme Court in Williams

noted that “the question of whether the violation of a

statutory obligation constitutes reckless disregard for

public health or safety for purposes of municipal immunity ordinarily would be one for the trier of fact.” Id.,

359. “The legislative history of the municipal immunity

statute . . . supports . . . the argument that recklessness

ordinarily presents a question of fact for the jury . . . .

[T]he apparent legislative intent with respect to municipal inspections is consistent with the general rule that,

when a defendant’s conduct represents more than mere

momentary thoughtlessness or inadvertence, whether

it rises to the level of reckless or wanton misconduct on

any given state of facts [ordinarily] is a question of fact

14

See footnote 11 of this opinion.

Girolametti v. Larrabee

for the jury.” (Citations omitted; footnotes omitted;

internal quotation marks omitted.) Williams v. Housing

Authority, supra, 327 Conn. 359–61.

We acknowledge that our Supreme Court in Williams

did not specifically interpret § 52-557n (b) (7), and that

the language “under all the relevant circumstances” contained in subsection (b) (8) was purposefully omitted from

subsection (b) (7). See Williams v. Housing Authority,

supra, 327 Conn. 357–58. The present claim, however,

requires us to articulate what constitutes “reckless disregard for health or safety” as that language is set forth in

52-557n (b) (7) and as informed by our Supreme Court’s

decision in Williams.

Section 52-557n provides in relevant part: “(b) Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee,

officer or agent acting within the scope of his employment or official duties shall not be liable for damages to

person or property resulting from . . . (7) the issuance,

denial, suspension or revocation of, or failure or refusal

to issue, deny, suspend or revoke any permit, license,

certificate, approval, order or similar authorization,

when such authority is a discretionary function by law,

unless such issuance, denial, suspension or revocation or

such failure or refusal constitutes a reckless disregard for health or safety . . . .” In other words, under § 52-557n

(b) (7), a municipality and its employees cannot be held

liable for the issuance of a building permit or a certificate of occupancy, provided such authority is a discretionary

function by law, unless the issuance of these documents

constitutes a “reckless disregard for health or safety.”

When interpreting § 52-557n (b) (8), as previously

noted, our Supreme Court in Williams affirmed this

court’s conclusion that “the common-law definition of

recklessness [is] instructive for purposes of interpreting

the exception for recklessness in § 52-557n (b) (8).” Williams v. Housing Authority, supra, 159 Conn. App. 694;

see also Williams v. Housing Authority, supra, 327 Conn.

362 (“it was not improper for the Appellate Court to look

Girolametti v. Larrabee

to the common law for guidance as to the meaning of the

term ‘reckless disregard’ ”). Our Supreme Court in Williams stated that “the type of conduct that constitutes

reckless disregard for purposes of § 52-557n (b) (8) is more egregious than mere negligence and requires that health

and safety inspectors disregard a substantial risk of

harm.” Williams v. Housing Authority, supra, 327 Conn.

366. Importantly, however, the court determined that

“the apparent legislative intent with respect to municipal inspections is consistent with the general rule that,

when a defendant’s conduct represents more than mere

momentary thoughtlessness or inadvertence, whether it

rises to the level of reckless or wanton misconduct on any

given state of facts [ordinarily] is a question of fact for

the jury.” (Internal quotation marks omitted.) Id., 361.

Although there is some difference in the statutory

language contained in § 52-557n (b) (7) and (8), it stands

to reason that the exception in subsection (b) (7), “unless

such issuance [of permits or certificates of occupancy]

constitutes a reckless disregard for health or safety,”

should be interpreted similarly to identical language in

subsection (b) (8) with respect to inspections. See In re

Jusstice W., 308 Conn. 652, 664–65, 65 A.3d 487 (2012)

(“[W]here the same words are used in a statute two or

more times they will ordinarily be given the same meaning in each instance . . . . Ordinarily, where the legislature uses the same phrase it intends the same meaning.”

(Citations omitted; internal quotation marks omitted.)).

Thus, even though the statutory language varies, in that

the language “under all the relevant circumstances” in

subsection (b) (8) is not included in subsection (b) (7),

the language “reckless disregard for health or safety” is

contained in both subdivisions (7) and (8), and, therefore,

the analysis in determining what conduct under both

subdivisions constitutes a “reckless disregard for health

or safety” would not change. We therefore conclude that

the type of conduct that constitutes reckless disregard

for health and safety for purposes of § 52-557n (b) (7) is

more egregious than mere negligence and requires that

a municipality or its employee in the issuance of permits

Girolametti v. Larrabee

disregard a substantial risk of harm. See Williams v.

Housing Authority, supra, 327 Conn. 366. We further

conclude that such determination is an issue of fact for

the jury.

With these legal principles in mind, we now review the

court’s instructions to the jury to determine whether the

court appropriately charged the jury on the law applicable to the facts in this case. The court charged the jury

with respect to the claims against the city as follows:15 “I now turn to a discussion of the law of recklessness. The

plaintiffs allege claims in recklessness against the city .

. . and . . . Schullery. There is a wide difference between

reckless behavior and mere negligence. Thoughtlessness

and inadvertence are not recklessness.

“Recklessness implies a conscious disregard of a high

risk or egregious misconduct that involves an extreme

departure from ordinary care in a situation where a high

degree of danger is apparent. It connotes a willingness

to take high risks without regard to the consequences or

to the safety of others.

“To be reckless means that a person must recognize that

his actions or omissions involve a risk to others which

is substantially greater than that which is necessary to

make his conduct negligent.

“Reckless conduct has been defined as outrageous conduct. It requires a conscious choice of a course of action,

either with knowledge that it will involve serious danger

to others or with knowledge of facts which would disclose

this danger to any reasonable person.

“Having reviewed with you the general principles of

law applicable to claims in . . . recklessness, I now turn to the specific claims alleged by the plaintiffs against each

of the defendants here.“In Connecticut, we have a statute

. . . § 52-557n, which allows a plaintiff to assert claims

in recklessness against a municipality and municipal

employees in certain circumstances.

15

Schullery does not challenge the court’s jury instructions. Schullery’s claim on appeal is limited to the sufficiency of evidence as to § 52-557n (b) (7) and (8), which we address in part II of this opinion.

Girolametti v. Larrabee

“In this case, the plaintiffs alleged that the . . . city

. . . issued to the general contractor building permits

and a certificate of occupancy in reckless disregard for

the public’s health and safety, and that it issued these

permits and certificates despite knowing that it did not

have the required design documents, certifications, and

completed testing as required by the building code or in

reckless disregard for public health and safety in light

of whether they had all the required design documents,

certifications, and completed testing.

“The plaintiffs also allege that the city . . . recklessly

undertook to conduct and improperly conducted required

inspections. More specifically, the plaintiffs allege that

the defendant, in violation of the . . . code, did not possess or demand from the involved construction and design

professionals proper design plans to proceed with . . .

the issuance of building permits or for proceeding with

inspections of the roof overbuild, front canopy, foundation, and first floor, the entire pre-engineered building,

and the second floor of the project.

“The city . . . denies these claims and maintains that

it had all [the] documents required to issue a building

permit, to issue a certificate of occupancy, and that it

made all inspections required by city officials.

“The plaintiffs also claimed the city . . . recklessly

violated Connecticut’s municipal records retention

requirements . . . requiring municipalities such as the

defendant to retain for the life of the structure copies

of construction documents as revised depicting the final

constructed configuration, as well as [the] certificates of

occupancy, inspection reports, permits, and applications

for permits.

“The plaintiffs claim that the city . . . violated these

requirements by failing to retain and/or by destroying

the construction documents it had on file, and that there

is foreseeable catastrophic harm to one or more individuals from not having the complete and correct final

constructed plans on record for the life of the structure.

Girolametti v. Larrabee

The city . . . also denies these claims and asserts that it

did not purposefully destroy or fail to retain any documents. . . .

“[The] defendants, such as the city . . . act[ed] in reckless disregard for health or safety when it is clear that

its failure to comply with the state building code may

result in catastrophic harm, even if that harm is not

likely. Catastrophic harm to a member of the public

does not mean a catastrophic collapse of the building or

a collapse of the floor.

“Our law provides for the imposition of liability when

a municipality’s failure to inspect constitutes a reckless

disregard for health and safety under all the relevant

circumstances. Therefore, you must consider all the

relevant facts presented to you during the course of this

trial to make a determination as to whether the actions of

the municipal defendant constituted a reckless disregard

for health and safety when it conducted an inspection

required under the building code.

“In considering whether the plaintiffs have proven

that the city . . . was reckless under all the relevant circumstances, I am going to review with you certain legal

standards that the plaintiffs claim were violated by the

city . . . in connection with the project at issue.

“The building code has been incorporated into our law

by statute. The purpose of the building code is to establish the minimum requirements to safeguard the public

health, safety, and general welfare through structural

strength, means of egress, and stability. The building

code exists to protect the health and safety of the public,

and it has specific requirements about which there has

been fact and expert testimony.

“The building code requires municipal officials to issue

permits and conduct inspections only upon receipt and

approval of proper documentation. The plaintiffs claim

that the city . . . was reckless in issuing permits for and

conducting inspections of the plaintiffs’ building without

first receiving all the design plans and special inspections

Girolametti v. Larrabee

reports required by the building code.

“In addition, there has been testimony about whether

certain records were missing from the building department files and whether the defendant issued a certificate

of occupancy without having obtained required documentation.

“The city denies these claims and maintains that it had

all the documents required to issue a building permit,

to issue a certificate of occupancy, and that it made all

inspections required by city officials.

“[The city] further asserts that it did not purposefully

destroy or fail to retain any documents. In addition,

one of the applicable codes that may be considered by

you in assessing the totality of the circumstances is the

[Danbury city code] which governs actions constituting

unfaithfulness to public office. . . .

“[That section] provides [that] no city officer or

employee shall grant any special consideration, treatment, or advantage to any other citizen beyond that

which is available to every other citizen.

“The requirements of the Connecticut building code

also govern the party’s conduct, and . . . are to be considered by you in . . . assessing the plaintiffs’ recklessness

claims.” The court then instructed the jury with respect

to various sections of the code that pertained to (1) minimum live load requirements, (2) requirements that

buildings be designed for the maximum loads expected

by their intended use or occupancy, (3) requirements

for structural safety taking into account the way it is

designed and the way it is constructed, and (4) minimum

standards for concrete slabs like the one located on the

second floor of the pre-engineered building at issue in

this case.

The court then instructed: “With respect to required

inspections, the city does not have to have actual notice of a hazard or condition in order to be reckless with regard

to inspecting it. Nor does the city need to have actual

Girolametti v. Larrabee

notice of all deficiencies and require documentation to

be reckless in issuing building permits or a certificate

of occupancy.

“However, city building officials are entitled to rely

on the accuracy of special inspection reports. The city

has an obligation under the building code to examine

the construction documents submitted for a building

permit and to ascertain by such examinations whether

the construction indicated is in accordance with the

requirements of the code and other pertinent laws or

ordinances.

“The city also has a statutory obligation to obtain

statements of professional opinion from the architect

or engineer of record and the contractor prior to issuing

any certificate of occupancy.

“Those statements of professional opinion each had

to affirm that the completed structure or addition is

in substantial compliance with the approved plans and

specifications on file with such building official.

“[General Statutes] § 29-276 (c), in deciding whether

the city acted recklessly, you may consider whether the

city obtained all required statements of professional

opinion prior to issuing the certificate of occupancy.

“Where several acts of recklessness are the cause of

the damages alleged, the plaintiffs may allege all of the

specific acts of recklessness as the cause of the damages

sustained. Proof of any one of these specific acts is sufficient to sustain the plaintiffs’ burden of proving that the

city acted recklessly. In order for the plaintiffs to prevail, they must prove by a preponderance of the evidence that,

one, the . . . city’s officials engaged in conduct constituting a reckless disregard for health and safety, and two,

this reckless conduct caused the damages claimed by the

plaintiffs. If the plaintiffs fail to prove either element,

you must return a verdict for the city . . . .

Girolametti v. Larrabee

“You have heard both facts . . . and expert witness

testimony on these allegations and the city’s denial of

the plaintiffs’ claims of recklessness. And you must

determine whether or not the plaintiffs have carried

their burden of proof on some or all of their allegations.

“If you find that the plaintiffs have proven each

required element of recklessness, you will find liability

in favor of the plaintiffs, fill out the appropriate plaintiffs’ verdict form for recklessness, and award damages

in accordance with the instructions I will give you on the

law of damages later on in this jury charge.”

Previously, in this opinion, we set forth the principles

that govern our review of jury instructions. The claim

is that the court failed to convey the proper legal standard for recklessness under subsection (b) (7) and (8) of

§ 52-557n. We reject the city’s argument that the court

did not adequately instruct the jury with respect to the

standard of recklessness that applies to subsection (b) (8). The city has failed to demonstrate that the court misled

the jury with respect to the allegations of recklessness

or the proper legal standard as derived from the plain

language of subsection (b) (8) and our Supreme Court’s

discussion of the recklessness requirement in Williams.

Importantly, the court unambiguously instructed the

jury that, in the context of § 52-557n (b) (8), a municipal

actor may demonstrate reckless disregard for health or

safety when it is clear that the failure to comply with the

building code in terms of issuing permits or conducting

inspections may result in a catastrophic harm, albeit

not a likely one.

The court followed Williams v. Housing Authority,

supra, 327 Conn. 338, in terms of describing the standard of recklessness that applies to a failure to inspect

under subsection (b) (8) of § 52-557n. The court did not

set forth a different standard of recklessness that applies

to the issuance of permits under subsection (b) (7) of

§ 52-557n. As we explained earlier, however, although

our Supreme Court held that the exception under subsection (b) (8) is to be viewed “through a broad lens”;

Girolametti v. Larrabee

Williams v. Housing Authority, supra, 327 Conn. 358;

both subdivisions (7) and (8) of § 52-557n (b) have in common the same requirement, namely, that the issuance of

a permit or the failure to make an inspection constitutes

a “reckless disregard for health or safety.” Thus, to the

extent that the court explained common-law principles

of recklessness to the jury, it properly guided the jury

in determining the issues before it. To the extent that

the court went beyond those common-law principles by

referring to the more broad definition under subsection

(b) (8) pursuant to Williams v. Housing Authority, supra,

327 Conn. 330, this court, when reviewing the court’s

instruction in its entirety, and when read as a whole,

cannot conclude that the instruction misled the jury.

We are mindful that, “[w]hen reviewing [a] challenged

jury instruction . . . we must adhere to the well settled

rule that a charge to the jury is to be considered in its

entirety, read as a whole, and judged by its total effect

rather than by its individual component parts. . . . [T]he

test of a court’s charge is not whether it is as accurate

upon legal principles as the opinions of a court of last

resort but whether it fairly presents the case to the jury

in such a way that injustice is not done to either party

under the established rules of law. . . . As long as [the

instructions] are correct in law, adapted to the issues

and sufficient for the guidance of the jury . . . we will not view the instructions as improper. . . . Instructions are

adequate if they give the jury a clear understanding of the

issues and proper guidance in determining those issues.”

(Citation omitted; internal quotation marks omitted.)

Smith v. Greenwich, 278 Conn. 428, 437, 899 A.2d 563

(2006). Accordingly, we reject the city’s argument.

B

Following the jury verdict, the city moved to set aside

the verdict and for judgment notwithstanding the verdict, renewing arguments made in a previous motion it

brought for a directed verdict.16 In its motion, the city

16

Schullery filed a similar postverdict motion, which we address in part II of this opinion.

Girolametti v. Larrabee

argued, inter alia, that insufficient evidence was introduced to support a finding that the defendants acted in

reckless disregard for health and safety, as provided by

§ 52-557n (b) (7) and (8). On appeal, the city claims that

the trial court abused its discretion by not setting aside

the verdict against the city because there was insufficient

evidence on which a jury could base a finding of reckless

disregard for health or safety under § 52-557n (b) (7) and

(8). We disagree.

In its memorandum of decision denying the defendants’

various postverdict motions, including the city’s motion

to set aside the verdict and for judgment notwithstanding the verdict, the court concluded that “[m]ore than

sufficient evidence—both testimonial and documentary, fact and expert—was introduced to support the

jury’s conclusion that the defendants acted in reckless

disregard for health and safety in connection with the

subject property.”

We begin by setting forth our standard of review.

“Appellate review of a trial court’s refusal to render

judgment notwithstanding the verdict occurs within

carefully defined parameters.” (Internal quotation marks

omitted.) Rossova v. Charter Communications, LLC,

211 Conn. App. 676, 682–83, 273 A.3d 697 (2022). “The

standard for appellate review of the denial of a motion

for judgment notwithstanding the verdict is well settled

and mirrors the standard applicable to a motion for a

directed verdict. Directed verdicts are not favored. .

. . A trial court should direct a verdict only when a jury

could not reasonably and legally have reached any other

conclusion. . . . In reviewing the trial court’s decision [to deny the defendant’s motion for a directed verdict] we

must consider the evidence in the light most favorable to

the plaintiff. . . . Although it is the jury’s right to draw logical deductions and make reasonable inferences from

the facts proven . . . it may not resort to mere conjecture

and speculation. . . . A directed verdict is justified if . . . the evidence is so weak that it would be proper for the

court to set aside a verdict rendered for the other party. .

Girolametti v. Larrabee

. . The foregoing standard of review also governs the trial

court’s denial of the defendant’s motion for judgment

notwithstanding the verdict because that motion is not a

new motion, but [is] the renewal of [the previous] motion

for a directed verdict.” (Internal quotation marks omitted.) Cockayne v. Bristol Hospital, Inc., 210 Conn. App.

450, 458, 270 A.3d 713, cert. denied, 343 Conn. 906, 272

A.3d 1128 (2022). “Whether the evidence presented by

the plaintiff was sufficient to withstand a motion for

[judgment notwithstanding the verdict] is a question

of law, over which our review is plenary. . . .

“Two further fundamental points bear emphasis. First,

the plaintiff in a civil matter is not required to prove [her] case beyond a reasonable doubt; a mere preponderance of

the evidence is sufficient. Second, the well established

standards compelling great deference to the historical

function of the jury find their roots in the constitutional

right to a trial by jury.” (Citation omitted; footnote

omitted; internal quotation marks omitted.) Rossova

v. Charter Communications, LLC, supra, 211 Conn.

App. 683–84.

“The standard of review governing our review of a

trial court’s denial of a motion to set aside the verdict

is well settled. The trial court possesses inherent power

to set aside a jury verdict [that], in the court’s opinion,

is against the law or the evidence. . . . [The trial court]

should not set aside a verdict [when] it is apparent that

there was some evidence [on] which the jury might reasonably reach [its] conclusion, and should not refuse to

set it aside [when] the manifest injustice of the verdict

is so plain and palpable as clearly to denote that some

mistake was made by the jury in the application of legal

principles.” (Internal quotation marks omitted.) Weyant

v. Kristy, 126 Conn. App. 180, 183, 10 A.3d 119 (2011).

“Our standards of review for the denial of a motion for

a directed verdict and denial of a motion to set aside a

verdict are the same.” Hall v. Winfrey, 27 Conn. App.

154, 157, 604 A.2d 1334, cert. denied, 222 Conn. 903,

606 A.2d 1327 (1992). Our Supreme Court has stated

Girolametti v. Larrabee

that, “[w]hether the evidence presented by the plaintiff

is sufficient to withstand a motion for a directed verdict

is a question of law, over which our review is plenary.”

(Internal quotation marks omitted.) Farrell v. Johnson &

Johnson, 335 Conn. 398, 416–17, 238 A.3d 698 (2020);

see also MacDermid, Inc. v. Leonetti, 328 Conn. 726,

744, 183 A.3d 611 (2018) (same).

Having set forth the applicable standard of review,

we now turn to the allegations of recklessness made by

the plaintiffs against the city, the evidence submitted

in support of those claims, and whether there was sufficient evidence from which the jury could conclude that

the city acted in reckless disregard for health and safety

in the issuance of permits and in conducting inspections

regarding the subject construction project.

In count one of their third amended complaint, the

plaintiffs alleged under § 52-557n (b) (7) that the city

was reckless in connection with the issuance of building

permits and the issuance of a certificate of occupancy

because the written materials submitted to the city to

obtain such permits and certificates failed to meet the

requirements of the code. Specifically, the plaintiffs

alleged that the city “acted in reckless disregard for the

health or safety of the plaintiffs and their employees,

persons performing work on the project, and other persons entering the property, concerning violations of the

building code of which they knew or should have known,

including but not limited to the following:

“[(1)] Recklessly failed to properly require the timely

and complete filing of permit application documents

(including complete drawings, specifications and other

supporting information) prior to the issuance of any

permits, in violation of their ministerial duties.

“[(2)] Recklessly issued a foundation permit when

the design of the foundation was incomplete and not

coordinated with the design of the structure above the

foundation.

Girolametti v. Larrabee

“[(3)] Recklessly issued a building permit when the

design for the entire building was incomplete.

“[(4)] Recklessly failed to require the filing of adequate

construction documents prior to performance of construction work, including but not limited to documentation for the front foundation wall, the sloped roof, the

front canopy, internal stairs, structural concrete slabs,

deck and joist components, and elements of the exterior

facade.

“[(5)] Negligently or recklessly failed to inspect properly work during construction (and conducted inspections with inaccurate and incomplete documentation),

including but not limited to the front foundation wall,

the entire foundation structure, the first floor slab, the

second floor slab, deck and joist components, roof framing above the existing building roof, the sloped roof,

the front canopy, internal stairs, and elements of the

exterior facade.

“[(6)] Recklessly issued a certificate of occupancy when

inspections had not been performed properly, when the

required construction documentation was incomplete,

and when [the] work in place obviously did not conform

with the partial construction documentation that had

been filed.

“[(7)] Negligently or recklessly failed and refused to

investigate fully and timely numerous instances of noncompliance with the building code when informed of the

noncompliance.

“[(8)] Negligently or recklessly stated that the building

was constructed properly when in fact it had not been so

constructed.

“[(9)] Recklessly withheld from the plaintiffs during

arbitration proceedings to the prejudice of the plaintiffs

an evaluation by a city-retained engineer that confirmed

the existence of building code violations and defective

design and construction on the project.

Girolametti v. Larrabee

“[(10)] Recklessly submitted documentation and testimony during arbitration proceedings to the prejudice

of the plaintiffs containing false information regarding

the compliance or noncompliance of the project with the

building code, zoning requirements and engineering

requirements for the project.

[(11)] Recklessly failed to administer the building code

of the state of Connecticut . . . .”

In count two of their third amended complaint, the

plaintiffs alleged under § 52-557n (b) (8) that the city

was reckless in conducting inspections or failing to conduct inspections “under all the relevant circumstances

concerning violations of the building code of which they

knew or should have known, including, but not limited

to, the following:

“[(1)] Negligently or recklessly failed to inspect properly work during construction (and conducted inspections with inaccurate and incomplete documentation),

including but not limited to the front foundation wall,

the entire foundation structure, the first floor slab, the

second floor slab, deck and joist components, roof framing above the existing building roof, the sloped roof,

the front canopy, internal stairs, and elements of the

exterior facade.

“[(2)] Negligently or recklessly failed and refused to

investigate fully and timely numerous instances of noncompliance with the building code when informed of the

noncompliance.

“[(3)] Negligently or recklessly withheld information and an evaluation by a city retained engineer that

confirmed the existence of building code violations and

defective design and construction on the project.

“[(4)] Recklessly submitted documentation and testimony during arbitration proceedings to the prejudice

of the plaintiffs containing false information regarding

the compliance or noncompliance of the project with the

Girolametti v. Larrabee

building code, zoning requirements and engineering

requirements for the project.

“[(5)] Recklessly failed to administer the building code

of the state of Connecticut . . . .”

The plaintiffs presented voluminous evidence that,

during the permitting phase of the project, there were

deficiencies, sometimes obvious in nature, with respect

to the submissions that had been presented to the city

concerning the project and that the city had not received

documents required by the building code prior to issuing

permits. Specifically, the plaintiffs presented evidence

that, although the original structure and the proposed

additional structure were two different building types,

the architectural plans submitted to the city did not properly account for fire protection in terms of construction

type or the use of a firewall. Additionally, incompatible

structural drawings had been submitted to the city on

behalf of the plaintiffs, and they did not address all of

the necessary structural aspects of the project. Moreover, the plaintiffs presented evidence that, at the time

the permit was issued, the submissions before the city,

including newer building plans from Michael Horton

Associates, Inc. (Horton), a structural engineer, did

not include foundation footing designs for the entire

front wall of the building under canopies, designs for

the canopy roof or barrel vaults, or designs to address

the load path linking the foundation to the gravity and

seismic loads of the pre-engineered building above.

The plaintiffs also presented evidence that, after a

change in engineering plans occurred, there was insufficient documentation submitted to the city that the

new plans adequately took into consideration the unique

needs of the project, which linked an existing building

to a pre-engineered structure. On October 4, 2007, prior

to the city’s issuance of the building permit, Richard

Marnicki, a structural engineer who had submitted

design plans in connection with the permit application,

provided written notice to Null, the city’s chief building

inspector, that, in light of the fact that the structure

Girolametti v. Larrabee

that he designed was being “redone” by another structural engineer, “the structural drawings that were filed

for a building permit . . . are not to be considered. The

entire design of the new building and existing building

reinforcements are being done by someone else. Please

destroy the structural drawings prepared by my office as

they are no longer valid. Also, please remove the special

inspection form also submitted with the building permit

application. The structural design of this project is by

others and their signed and sealed drawings will govern

the building design.” The newer plans submitted by

Horton were inconsistent with Marnicki’s plans. The

plaintiff presented evidence that city building officials

failed to inquire with respect to the adequacy of the new

plans when they made no mention of the entirety of the

structure that was planned to sit above the deck of the

addition.

Milton Gregory Grew, a licensed architect and a licensed

building official, reviewed the record of what occurred

during the permitting phase of the project. Grew testified that, “[i]f the drawings [by Horton] were going to

be submitted to supersede [the drawings by Marnicki],

then there would’ve been documentation that would’ve

clearly indicated all of Marnicki’s drawings should no

longer be considered part of this project. We now have

[Horton] drawings for not just the foundation, but also,

if no one is going to design the second floor structural

slab then the second floor as well. Also, the work over

the existing building, the structural enhancements that

were being done there. And then, someone would have to

take responsibility for coordinating the Varco Pruden . . .

pre-engineered metal building design with the [Horton]

design and coordinate with the [architects]. All of this,

the building department could have easily foreseen this

whole thing to kind of come apart and not be coordinated.

Therefore, some big issues fall through the cracks if

they had just simply stopped it a couple times and had

the team get their act together.” Grew further opined

that “I don’t believe we’d be here talking about it today

if the proper process had been followed.”

Girolametti v. Larrabee

Relying on the submissions in the city’s possession,

Grew opined that Schullery did not act in accordance with

the building code and, in fact, acted in a “reckless fashion.” Grew explained: “[A]s a building official performing

a review of the construction documents for a permit, if

I am seeing things on the drawings that are clear basic

violations of the building code, and then also going out

into the field and seeing things that are clear violation[s] of the process that’s in the building code, if I am making

a decision to ignore those things or let those things pass,

there is a foreseeable eventuality that somebody might

get hurt from that. Especially, we are talking about fire

resistance and structural matters. That’s the building

staying up and providing life safety for humans. And,

so, if I’m making decisions to ignore certain things, or

not comment on them, or not stop the process to get them

corrected, that is being reckless. I can foresee, it may

not happen, but I can foresee a bad eventuality, a bad

outcome to people because of that decision. . . .

“[A]s I’ve described earlier, there are basic steps that

are outlined in the building code that any building official must follow in his examination of the documents,

in doing his plan review to make sure that the design

professionals have fulfilled the minimum requirements

in the building code, and there are clearly basic areas

where this was ignored or not done including something

as major as the construction of a 10,000 square foot second floor without a drawing just on what was testified

to by Mr. Schullery, sort of a verbal say-so of how that

floor was to be built and hope that it holds up [the way]

it’s supposed to hold up. So, to me, that whole process

ignored basic building code provisions that any building

official, assistant building official, inspector, should

have known.”

A central part of the plaintiffs’ evidence with respect

to the permitting stage of the project focused on the fact

that city officials had relied on drawings made by Varco

Pruden, the manufacturer and engineer of record for

the pre-engineered building. The plaintiffs presented

Girolametti v. Larrabee

evidence that the drawings, which were approved by

the city, were meant to be preliminary, and they plainly

were not applicable in the present case in which the preengineered building, which was designed to be a freestanding structure, was to be attached to the existing

structure. As Grew testified, Varco Pruden “[is] designing their structure and assuming that it’s a stand-alone

free standing building with nothing around it, including

no adjacent building. So, they are not treating this building or considering it to actually be an addition to another

building.” Additionally, the plaintiff presented evidence

that the design proposals submitted to the city reflected

that the support system to hold up the planned concrete

floor was plainly inadequate. Grew testified that, if the

project was built according to the design plans submitted to the city, which reflected a lack of adequate joist

support, “this floor would collapse.”

We next turn to the phase of the project during which

the code mandated that certain inspections occur. In basic

terms, the plaintiffs presented evidence that, pursuant to

the building code, once a building permit has been issued

by the appropriate authority, as had occurred in the present case, inspections are required at different phases of

construction. Pursuant to the code, the municipal building inspector conducts certain inspections and, in projects like the present project, in which special inspections

are also required, more detailed inspections of certain

facets of construction must also occur. Grew opined that

he had reviewed the city’s records with respect to the

required inspections under the code in the present case.

With respect to whether city building officials complied

with their duty to inspect certain areas of construction,

including the second floor slab, the roof and overbuild

area, the canopy roof barrel vaults, the dormers, and the

structure where the dormers were attached to the particular type of sheathing material used in the overbuild

area of the structure (densglass), Grew stated that “the

building department did not comply with the requirements of the . . . code to conduct their inspections. That

they did not make the decisions that they should have

Girolametti v. Larrabee

made to stop work in [certain] areas, to require that

there be submitted drawing[s] [by] . . . their [architect]

or engineer sealed by the respective design professionals.

That, then, the work proceed [only] after those revised

drawings or submitted drawings have been submitted

to the city. That doing anything short of that, such as

allowing the condition to continue to exist, was reckless.”

Grew further testified: “I could foresee that allowing

construction to continue or not by getting things corrected could . . . result in something catastrophic happening, whether it’s a high load going through the first

floor or it’s winds pulling those dormers on the façade of

the building off, or it’s even a fire. I now have this light frame, combustible wood obstruction in the building,

where on the building’s own records, they’re calling the

building noncombustible.

“So, if I’m a firefighter, the records that I have say its

noncombustible and I’ve got highly combustible materials in that building. So, even for firefighters in the

future going there, they aren’t going to know that there’s

improper non-fire-retardant sheathing over the front

canopy of the building. They’re not going to know that

there’s light wood framing over the trolley barn. And

so, they could easily go up in those areas and maybe be

subjected to construction failing a lot faster under fire

than they would expect because city records say the

building’s noncombustible. . . .

“There are foreseeable catastrophes or bodily harm

that could occur simply because as a building official, I

didn’t do my job. . . .

“As a building official, I’m charged with following

rules so that this doesn’t happen. So, my not following the code and the regulations allows a window for a

catastrophe to happen. . . .

“I think we’ve certainly seen evidence. With so many

gaps in the design of this building and the inspections,

that under an earthquake event, a real fire event, a real

emergency or hurricane, it’s very possible that this

Girolametti v. Larrabee

building could fail far sooner than one would expect it

to. Or reasonably expect . . . it to because of the way the

design should have been.”

The plaintiffs presented evidence that, in certain

aspects of the construction, including welding, bolting,

steel frame bracing, and connections, the city building

officials failed to ensure that the inspection process was

followed and that the required special inspections under

the code were conducted, with the results of those inspections being put in the building file. Grew testified that

“[t]here is a final report that’s required to do a summation of all the reports that have been done, that they are

complete and that any deficiencies found in the course

of doing special inspections have all been corrected at

this point.”

Grew testified that, with respect to his opinion as to

whether the city building officials fulfilled their obligations under the building code for the handling of special

inspections of the project, “it’s clear that the building

department did not fulfill their duties at all with respect

to [what the] building code required. The safety factors

that go into the structure and life safety of this building. That they issued a certificate of occupancy without having the special inspections or knowing that the building

had been completed in a structurally compliant manner.

That’s reckless because the foreseeable eventuality or

possibility of them not acting properly is possible to

harm someone.”

Grew continued: “[B]ecause the building official made

decisions to not have all of the special inspections executed and to not have them all culminated by the time he

issued a statement of special inspections. It is very possible that this building, certain aspects of it, certain parts could fail prematurely due to some event and cause harm

to individuals. Just one small example is . . . [the] afterthe-fact inspections done on the welding of the stairs.

Well, the stairs are a means of egress. They’re the exit

to get out of the building in the event of an emergency.

Girolametti v. Larrabee

“And so, we do not want to have welds, connections

for the stair stringers that support those stairs or for

the railings that keep the occupants safely going down

the stairs failing inspection? No. Is it possible that those could fail under an emergency situation? It is. Could they

fail prematurely? Certainly, it’s possible because they

don’t meet the building code requirements.”

The plaintiffs presented evidence that a building official was required to inspect the preparations for the

deck and the reinforcements for the deck prior to the

time that concrete was poured on the second floor of

the structure. The plaintiffs presented evidence concerning a specific inspection that occurred on March

11, 2008, by Schullery, with respect to the second floor

of the structure, prior to the pouring of concrete. The

evidence demonstrated that Schullery did not have a

current engineering design on file pertaining to the floor

slab and the manner in which the floor system would be

constructed. Instead, he was in possession of an outdated

drawing made by Marnicki. Schullery testified that an

inspection of the second floor deck was required by the

code. When he arrived at the job site on the date of the

inspection, he observed a work crew installing framing

and walking across concrete mesh installed on the deck.

Schullery recalled that, because the drawings on file did

not detail the second floor, he asked the on-site supervisor from Rizzo if he could show him a plan for how the deck

slab was supposed to be laid out and poured. Schullery

testified that the supervisor from Rizzo “told me that

they contacted the engineer, and that they were going

to utilize the first floor design from [the structural engineer] Horton as a second floor application.” Although

Schullery testified that the building department was not

in possession of alternative design plans, he was aware

that the Marnicki designs were no longer to be used.

Grew testified that, in accordance with code standards,

“if [Schullery] felt that the Marnicki drawing was no longer applicable to the project and construction personnel

out there, supervisors are representing to him that it’s

Girolametti v. Larrabee

not and they have some other plan or method of building

it from another engineer, well, you say fine, stop here,

get that engineer to design it, and submit to me a drawing that’s signed and sealed . . . that shows me how that

second floor will be built and then you can proceed. But,

stop here until we get that.” Grew, referring to the evidence that a contractor told Schullery at the time of the

inspection that Horton’s plan for the concrete placement

of the first floor of the structure was to be used for the

second floor as well, opined that Schullery’s reliance on

this representation was “[a]bsolutely not” in accordance

with inspection standards set forth by the code and that

Schullery “should have stopped the process. It should

have been a failed inspection, or say get me a new design

from an engineer, signed and sealed, and we’ll see you

another time.” Although the city relies on “undisputed

evidence that [it] conducted over 100 inspections during the construction phase of the subject project,” the

aforementioned evidence demonstrates that, although

inspections occurred, according to Grew, not all of them

were adequate under the code.

Finally, we turn to the phase of the project during

which the city issued a certificate of occupancy for the

plaintiffs’ building. The plaintiffs presented evidence

that a certificate of occupancy should not be issued until

such time as the architect or professional engineer of

record, as well as the general contractor, has submitted a

professional opinion letter certifying that the completed

structure is in substantial compliance with the approved

plans and specifications filed with the building department. This is mandated by the applicable statute.17 The

17

General Statutes § 29-276c provides in relevant part: “(a) . . . [T]he plans and specifications for [a] structure or addition shall be sealed by the licensed architect of record or professional engineer of record responsible for the design of the structure or addition. Such architect or engineer of record shall be retained and be responsible for the review of the implementation of the design of such structure or addition including the review of shop drawings and the observation of construction. . . . If fabricated structural load-bearing members or assemblies are used in such construction, the licensed professional engineer responsible for the design of such members or assemblies shall be responsible for the

Girolametti v. Larrabee

plaintiffs presented evidence that, in July, 2008, prior

to the issuance of the certificate of occupancy, Schullery

was well aware that he lacked documentation, including

inspection reports and up-to-date design plans, that were

necessary to issuing the certificate of occupancy.18 Grew

testified that a certificate of occupancy should not have

been issued in this case because of a fundamental problem, namely, that the building officials were unable to

verify that the completed structure was in compliance

with approved plans and specifications on file with the

building department. Grew also testified that the issuance of a certificate of occupancy demonstrated a reckless

disregard for public safety: “[P]roblems, failures, things

that could cause harm to individuals, people occupying or

visiting this building is probable, based on [the] building

not being code compliant and a building official having

issued a certificate of occupancy recklessly without knowing that the building was code compliant.” Grew testified

that the certificate of occupancy, issued on November 3,

2008, did not comply with the code in that it was issued

in the absence of necessary documentation and with

errors in the documentation put before the building

implementation of said engineer’s design by reviewing the fabrication process to ensure conformance with said engineer’s design specifications and parameters.

“(b) Prior to the issuance of a certificate of occupancy for a proposed structure . . . the local building official shall require a statement signed by the architect of record or the professional engineer of record responsible for the design of the structure or addition or the additional architect or professional engineer retained pursuant to subsection (a) of this section, and by the general contractor involved in the construction of such structure or addition affirming their professional opinion that the completed structure or addition is in substantial compliance with the approved plans and specifications on file with such building official. . . .”

18

The plaintiffs offered, and the court admitted into evidence, a letter, dated July 25, 2008, from Schullery to John Girolametti stating in relevant part: “As of this date, the City of Danbury Building Department has yet to receive any revisions to the approved plans on file. Additionally, this department has not received the required special inspection reports for your project.

“A statement of professional opinion signed by the architect, engineer, and the general contractor stating that the completed structure or addition is in substantial compliance with the approved plans on file is also required.”

Girolametti v. Larrabee

department. The documentation reflected an incorrect

construction type and an incorrect occupancy type. The

documentation failed to reflect the fact that there were

two different construction types used in the building,

with no firewall between them. Also, the building was

not properly documented as a wood frame building in

light of the wood studs and joists used, as well as the

sheathing type used over the canopy in the front of the

building. Grew also testified that these errors could lead

to a foreseeable risk of “bad things” happening in the

future. He testified: “In Connecticut, the definition of

an existing building is the one that has a certificate of

occupancy and, as we saw according to [the] statement of

retention records, you have to keep both of those documents for the life of the building, along with the approved

drawings that are on file. Those are to be a record for

anybody that’s doing anything or has anything to do

with that building going forward as long as that building

is standing. The fact that this says business occupancy

. . . [means] it would not be required to have sprinklers.

“So . . . somebody in the future [could] take the sprinklers out of there when they should be there because it’s

the wrong occupancy classification . . . . So, a certificate of occupancy is critical to going forward [with respect

to] anything that’s going to take place with the building. If all we have are people [who] remember . . . [that

the structure was built for] retail or [who] remember

it was [built for] storage, and it hasn’t been properly

documented, what else could fall through the cracks with

respect to this building that has to do with life safety?”

Grew continued: “Well, the probability is that sprinklers or the fire alarm system could be legally disabled

because it’s got the improper occupancy classification.

The other problem too is these records are normally

shared with other departments. So, the fire department

. . . coming up with their action for how they’re going

to fight a fire [at the structure]. Oh, well it’s [described as] a noncombustible building. Well, that might be one

way that they’re going to fight it, but if they knew they

Girolametti v. Larrabee

[actually] had light frame wood construction in portions

of the building, that would give them pause and make

them say, well, there’s portions of this building that are

going to collapse a lot faster than what I would expect

to happen under a fire situation with a noncombustible

building. . . . Noncombustible means it doesn’t burn,

so that becomes a catastrophic problem, too. You can

foresee a firefighter, or a member of the public, being

injured sooner under a fire situation because there’s

wood frame construction that was allowed to take place

and we’re going to hide it by calling it a noncombustible building [on the certificate of occupancy].” Grew

stated that, because of the inaccuracies on the certificate

of occupancy, “[firefighters are] not going to have the

information they need . . . in order to safely fight a fire. It really could pose a risk to safety.”

The city argues that, prior to the issuance of the certificate of occupancy, the general contractor, Rizzo,

confirmed by letter “that all parts of the drawings

and project manual and all portions of the work were

reviewed, and that all work was completed and ready

for final inspection.” (Emphasis in original.) This evidence, however, did not amount to what was required by

law, namely, a certification in accordance with General

Statutes § 29-276c (b) that the work on the structure

had been completed in accordance with the plans on file

with the building department.19 Moreover, the plaintiffs

demonstrated that the building department also lacked

required professional opinion letters from the engineers

of record20 for each of the distinct structural aspects

19

Instead, Anthony M. Curcio, the vice president of the general contractor, Rizzo, filed a “Project Completion Notice,” dated October 10, 2008, with the building department. In that notice, Curcio certified that, “in accordance with the contract agreement dated November 2, 2007 . . . all punch list corrections have been completed and . . . all work is completed and ready for final inspection and Owner’s acceptance.”

20

The plaintiffs presented evidence that there were three engineers of record in connection with the project, one that was responsible for the foundation, one that was responsible for the canopy design in the front of the building, and a third that was responsible for the pre-engineered steel structure built on top of the foundation.

Girolametti v. Larrabee

of the project with reference to the plans on file in the

building department. The city argues that it was proper

under the code for building officials to deal with only one

design professional, Horton. Even if we agreed with that

proposition, it is clear that Horton did not consider itself responsible for the pre-engineered building designed by

Varco Pruden, and, thus, there was no basis on which the

city properly relied on any representations made by that

firm with regard to the pre-engineered structure.21 The

city issued the certificate of occupancy in the absence of

any of the necessary certifications from Varco Pruden.

Grew opined that, on the basis of his experience and

training, as well as his review of the record in this case,

“the building official, the assistant building official, the building department as a whole did not at all comply with

21

There was a “substantial completion” letter in evidence from Horton, the engineer of record for the foundation upon which the pre-engineered steel addition rested, to Rizzo, dated September 15, 2008. The letter stated that “the new additions and renovations to the [building] have been constructed in substantial compliance with our [d]rawings and [s]pecifications. During the course of construction we performed review of shop drawings, limited site inspections and construction administration consultation. Special inspections and testing services were provided by others. We did not provide full time inspection or observations.” The letter from Horton also stated that its role as engineer of record was limited to “the foundations and first floor framing for the pre-engineered metal building addition” as well as “renovations to the existing structure.” The letter stated that “[t]he Engineer of Record for the pre-engineered metal building was the manufacturer, Varco Pruden.” There was no evidence that a statement of professional opinion had been filed by either Horton or Varco Pruden with respect to the pre-engineered building.

As Grew testified, the letter from Horton failed to meet the correct standard in many ways. First, the letter did not state that work had been completed in compliance with drawings and specifications on file with the building department. Second, the letter makes clear that special inspections were performed by others. Third, the letter made clear that Horton did not supervise the construction. Grew also testified that it was clear from the letter that Horton was not taking responsibility for the steel building that was supplied by Varco Pruden. According to Grew, that portion of the letter was a clear impediment to issuing a certificate of occupancy and such a certificate should not have been issued in the absence of more information about the structure manufactured by Varco Pruden.

Girolametti v. Larrabee

the requirements of the building code or state statutes

prior to the certificate of occupancy [being issued] and

had no legal basis upon which to issue the certificate of

occupancy.” Grew opined that issuing a certificate of

occupancy in this case, without prior code compliant

action on the part of the building department, was “reckless because it was certifying [the building] as complying

with the building code. A building upon which there was

insufficient inspections, insufficient signed and sealed

design drawings, and no way for the building official to

know with assurance that building wouldn’t fail prematurely or other failure that could harm individuals,

based on its lack of code compliance.”

The plaintiffs also focused on the fact that the unique

circumstances of the Party Depot building, which combined an existing structure with a new pre-engineered

metal structure, required certification that accounted

for how these very different structures interacted. The

city argued that it was sufficient for building officials

to rely on the structural engineering drawings for the

pre-engineered part of the building from Varco Pruden.

The plaintiffs presented evidence, however, that these

drawings failed to account for the ways in which the

pre-engineered building interacted with the existing

structure. Grew testified that “problems, failures, things

that could cause harm to individuals, people occupying or

visiting this building is probable, based on [the] building

not being code compliant and a building official having

issued a certificate of occupancy recklessly without knowing that the building was code compliant. So, something

as simple as . . . the boilerplate language on the Varco

Pruden drawings that said ‘we’re designing this [preengineered steel] building as if there’s nothing around

it.’ Then, we hear testimony that, because of the seismic

loads on this building, that there’s a draft of upwards of

twelve inches on this building. Well, it is built [according] to the details and architectural drawings right smack into

and right notched into the existing unreinforced mason

trolley barn. Well, that’s a problem. That was something

foreseeable by the building department because they

Girolametti v. Larrabee

were told on the Varco Pruden drawings that . . . there

[is not] to be anything else next to [the Varco Pruden

steel structure], so they’re not going to account for that.

They’re not going to account for the interaction between

two different structures in the event of a seismic or high

wind event.”

Having considered the evidence in the light most

favorable to the plaintiffs, we conclude that there was

sufficient evidence from which the jury could reasonably and legally conclude that the defendants acted in

reckless disregard for health and safety, as provided by

§ 52-557n (b) (7) and (8). Accordingly, the city has failed

to demonstrate that the court erred in denying its motion

to set aside the verdict and for judgment notwithstanding the verdict.

C

The city’s final claim is that the court abused its discretion when it declined to order a remittitur as to the

damages assessed against the city in the amount of a presuit settlement that was reached between the plaintiffs

and Larrabee, the plaintiffs’ architect. It is undisputed

that, pursuant to the settlement, the plaintiffs received

$280,000. We agree with the city that the court erred

in denying its motion for remittitur filed in each of the

underlying civil actions.

Following the jury’s verdict, the city filed a motion

for remittitur in the amount of $280,000 “because the

amount awarded by the jury was excessive as a matter

of law.” In its memorandum of law in support of the

motion, the city argued22 that there was evidence presented at trial that the full extent of the plaintiffs’ damages was $16,655,826.44 and that, by the admission of

22

In its motion for remittitur, the city argued that the court should also reduce the verdict against it by $10,566,982 on the ground that the testimony of the plaintiffs’ expert witness, John V. Melillo, with respect to Party Depot’s damages, “should be disregarded in its entirety . . . .” On appeal, the city does not raise a claim of error with respect to the fact that the court denied the motion for remittitur on this alternative ground.

Girolametti v. Larrabee

John Girolametti, he had received a payment of $280,000

as a result of the settlement in connection with his suit

against Larrabee.23 Thus, the city argued that, for the

court not to reduce the damages awarded by the jury by

$280,000, “would result in the jury award against the

[city] far exceeding what is fair and reasonable and would

be unconscionable.” The plaintiffs filed an objection to

the city’s motion. By order of March 27, 2024, the court

denied the motion for remittitur. After setting forth

the correct legal standard, the court stated: “As it is not

manifest that the jury included items of damage that are

contrary to law, not supported by proof, or contrary to

the court’s explicit and unchallenged instructions, the

motion for remittitur is hereby denied.”

As it did before the trial court, the city argues that the

evidence offered at trial as to the plaintiffs’ lost profits and economic damages amounted to $16,655,826.44,

and that the jury awarded the plaintiffs $16,593,750.

The city argues that there was no evidence offered at

trial, or jury instructions given to the jury by the court,

which provided a scenario in which the total amount of

compensation received by the plaintiffs could exceed

the amount the jury awarded under any circumstances,

and, therefore, the trial court abused its discretion in

not ordering a remittitur of $280,000.

The plaintiffs argue that there was no proof by the city

that the $280,000 received by the plaintiffs on account of

settlement negotiations was duplicative of any damages

awarded against the city nor that any of the $280,000

in settlement proceeds was “unconscionably excessive”

as a matter of law. The plaintiffs argue that the city

failed to carry its burden of proving that there was any

“duplicat[ive]” or “double recovery” to what the jury

23

Prior to the city’s filing of its motion for remittitur, the city and Schullery sought a hearing for the purpose of determining whether the plaintiffs had received any settlement proceeds in this action. In their objection to this motion, the plaintiffs attached an affidavit of John Girolametti, dated October 18, 2023, in which he averred in part that he had received $280,000 in settlement proceeds in connection with the plaintiffs’ action against Larrabee.

Girolametti v. Larrabee

awarded against the city. The plaintiffs argue that, even

if the city had established such a duplication, “General

Statutes § 52-216a . . . would permit a jury award to be

reduced by amounts obtained per such settlements only

if the court determines that the settlement payments,

when added to the jury award, render that award excessive as a matter of law. The threshold is met only when

the total amount received so far exceeds what is fair

and reasonable as to be unconscionable.” (Emphasis in

original.) The plaintiff argues that “[i]n no way could

$280,000 ever be found to be ‘unconscionably excessive’

in relationship to a jury verdict of $16,593,750, which is

less than 1.7 percent more than the jury verdict against

the city alone.” (Emphasis in original.)

Before addressing the city’s claim, we set forth the

following applicable legal principles and standard of

review. Section 52-216a provides in relevant part: “An

agreement with any tortfeasor not to bring legal action

or a release of a tortfeasor in any cause of action shall

not be read to a jury or in any other way introduced in

evidence by either party at any time during the trial of

the cause of action against any other joint tortfeasors,

nor shall any other agreement not to sue or release of

claim among any plaintiffs or defendants in the action

be read or in any other way introduced to a jury. If the

court at the conclusion of the trial concludes that the

verdict is excessive as a matter of law, it shall order a

remittitur and, upon failure of the party so ordered to

remit the amount ordered by the court, it shall set aside

the verdict and order a new trial. . . .”

This court has explained the circumstances under which

a remittitur should be granted: “[I]n determining whether

to order remittitur, the trial court is required to review

the evidence in the light most favorable to sustaining

the verdict. . . . Upon completing that review, the court

should not interfere with the jury’s determination except

when the verdict is plainly excessive or exorbitant. .

. . The ultimate test [that] must be applied to the verdict by the trial court is whether the jury’s award falls

Girolametti v. Larrabee

somewhere within the necessarily uncertain limits of

just damages or whether the size of the verdict so shocks

the sense of justice as to compel the conclusion that the

jury [was] influenced by partiality, prejudice, mistake

or corruption. . . . The court’s broad power to order a

remittitur should be exercised only when it is manifest

that the jury [has awarded damages that] are contrary

to law, not supported by proof, or contrary to the court’s

explicit and unchallenged instructions. . . . Accordingly,

we consistently have held that a court should exercise

its authority to order a remittitur rarely—only in the

most exceptional of circumstances . . . and [when] the

court can articulate very clear, definite and satisfactory

reasons . . . for such interference. . . . The inquiry into

whether a damages award shocks the sense of justice is

not intended to detect the kind of shock that arises from

a moral outrage but, instead, refers to the distress that

may be felt when the requirement of reasonableness has

been abandoned in a setting in which reason is a necessary

element of any legitimate outcome. If the verdict cannot

be explained rationally, then the trial court may presume that it is tainted by improper considerations. . . .

“[O]ur review of the trial court’s decision [to grant

or deny a remittitur] requires careful balancing. . . .

[T]he decision whether to reduce a jury verdict because

it is excessive as a matter of law . . . rests solely within the discretion of the trial court. . . . [T]he same general

principles apply to a trial court’s decision to order a

remittitur. [Consequently], the proper standard of review

. . . is that of an abuse of discretion. . . . [T]he ruling of the trial court . . . is entitled to great weight and every

reasonable presumption should be given in favor of its

correctness. . . . The chief rationale that has been articulated in support of this deferential standard of review

is that the trial court, having observed the trial and

evaluated the testimony firsthand, is better positioned

than a reviewing court to assess both the aptness of the

Girolametti v. Larrabee

award and whether the jury may have been motivated by

improper sympathy, partiality, or prejudice. . . .

“[A]lthough the trial court has a broad legal discretion

in this area, it is not without its limits. . . . Litigants have a constitutional right to have factual issues resolved by

the jury. . . . This right embraces the determination of

damages when there is room for a reasonable difference

of opinion among fair-minded persons as to the amount

that should be awarded. . . . Furthermore, [t]he size of the verdict alone does not determine whether it is excessive. .

. . Thus, [i]n ruling on the motion for remittitur, the trial court [is] obliged to view the evidence in the light most

favorable to the plaintiff in determining whether the

verdict returned [is] reasonably supported thereby. . . . A

conclusion that the jury exercised merely poor judgment

is an insufficient basis for ordering a remittitur. . . . A

generous award of . . . damages should be sustained if it

does not shock the sense of justice. . . . The fact that the jury returns a verdict in excess of what the trial judge

would have awarded does not alone establish that the

verdict was excessive. . . . [T]he court should not act as

the seventh juror with absolute veto power. Whether

the court would have reached a different [result] is not

in itself decisive. . . . The court’s proper function is to

determine whether the evidence, reviewed in a light most

favorable to the prevailing party, reasonably supports

the jury’s verdict. . . . In determining whether the court

abused its discretion, therefore, we must examine the

evidential basis of the verdict itself . . . . [T]he court’s action cannot be reviewed in a vacuum. The evidential

underpinnings of the verdict itself must be examined.”

(Citations omitted; footnote omitted; internal quotation

marks omitted.) Lafferty v. Jones, 229 Conn. App. 487,

531–33, 327 A.3d 94 (2024), cert. denied, 351 Conn.

923, 333 A.3d 105 (2025), and cert. denied, 351 Conn.

923, 333 A.3d 106 (2025), cert. denied, U.S. , 146

S. Ct. 301, 223 L. Ed. 2d 124 (2025).

We recognize that, in the present case, the city did not

seek a remittitur on the ground that the jury exercised

Girolametti v. Larrabee

poor judgment in its evaluation of the evidence or its

award of damages. Instead, the city argued before the

trial court and currently argues before this court that

the trial court should have subtracted $280,000 from the

jury’s award of $16,593,750 to account for the presuit

settlement proceeds that the plaintiffs received from

the former defendant, Larrabee. The city argues that

any recovery that exceeds what the evidence established

was excessive. The city does not claim that the damages

awarded against the city are excessive because they are

so great as to be manifestly unjust in light of the nature

and extent of the injuries suffered by the plaintiffs, but,

rather, that a remittitur is required because the award

is duplicative. The city argues that, unless the jury’s

award is reduced by the amount of the presuit settlement

proceeds that the plaintiffs received, the plaintiffs’ total recovery will greatly exceed the compensation that the

jury determined to be fair and appropriate as reflected

in the evidence and the jury’s verdict. In substance, the

city is arguing that the award is excessive because the

settlement amount paid to the plaintiffs violates the one

satisfaction rule, a rule that is based on the disfavor of

double recoveries under the common law.

“[T]he rule precluding double recovery is a simple and

time-honored maxim that [a] plaintiff may be compensated only once for his just damages for the same injury. .

. . Connecticut courts consistently have upheld and

endorsed the principle that a litigant may recover just

damages for the same loss only once. The social policy

behind this concept is that it is a waste of society’s economic resources to do more than compensate an injured

party for a loss and, therefore, that the judicial machinery should not be engaged in shifting a loss in order to

create such an economic waste.” (Internal quotation

marks omitted.) Mahon v. B.V. Unitron Mfg., Inc., 284

Conn. 645, 663, 935 A.2d 1004 (2007).

The legislature, however, “by virtue of its enactment of

§ 52-216a,24 [has] altered the common-law rule requiring

24

As stated previously in this opinion, General Statutes § 52-216a provides in relevant part: “An agreement with any tortfeasor not to

Girolametti v. Larrabee

deduction of preverdict payments from verdicts. (Footnote added.) Seals v. Hickey, 186 Conn. 337, 346, 441

A.2d 604 (1982); see also Bovat v. Waterbury, [258 Conn.

574, 599, 783 A.2d 1001 (2001)] (§ 52-216a abrogated

common-law rule barring windfall of double recovery).

Thus, these cases make it abundantly clear that, under

§ 52-216a, a trial court may, in the exercise of its discretion, reduce a jury award to account for pretrial settlement payments. Before doing so, however, the court first

must determine that the settlement payments, when

added to the jury award, render that award excessive as a

matter of law, a threshold that is met only when the total

amount received so far exceeds what is fair and reasonable as to be unconscionable.” (Footnote added; internal

quotation marks omitted.) Mahon v. B.V. Unitron Mfg.,

Inc., supra, 284 Conn. 664–65.

Our Supreme Court has construed § 52-216a to permit

“a payment by one joint tortfeasor resulting from a settlement before trial to reduce a jury verdict against another

joint tortfeasor only where the verdict otherwise would

be excessive as a matter of law. In making its postverdict

determination on the issue of any claimed excessiveness

. . . the trial court [is] directed to consider the amount of money paid to a plaintiff as the result of [a settlement

with another tortfeasor].” (Footnote omitted; internal

quotation marks omitted.) Alfano v. Ins. Center of Torrington, 203 Conn. 607, 610, 525 A.2d 1338 (1987).

Where the loss, however, is readily ascertainable and

absolute, and represents “a legally unassailable determination of fair compensation for the plaintiff’s loss,”

bring legal action or a release of a tortfeasor in any cause of action shall not be read to a jury or in any other way introduced in evidence by either party at any time during the trial of the cause of action against any other joint tortfeasors, nor shall any other agreement not to sue or release of claim among any plaintiffs or defendants in the action be read or in any other way introduced to a jury. If the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. . . .”

Girolametti v. Larrabee

any additional compensation received by the plaintiff

from presuit settlement proceeds renders the plaintiff’s

total recovery excessive as a matter of law. Id., 611; see

also Mahon v. B.V. Unitron Mfg., Inc., supra, 284 Conn.

666–70; Mauro v. Yale-New Haven Hospital, 31 Conn.

App. 584, 588–89, 627 A.2d 443 (1993).

Our Supreme Court’s analysis in Alfano guides our

resolution of the present claim. In Alfano, the plaintiff, Raymond G. Alfano, brought an action against the

defendant insurance agency, alleging that the agency

negligently failed to procure fire insurance coverage for

a building that the plaintiff had purchased three days

before it was destroyed by fire. Alfano v. Ins. Center of

Torrington, supra, 203 Conn. 608. Alfano’s complaint

also contained a count in which he asserted a malpractice

claim against the attorney who had represented him at

the closing on the building. Id. Alfano claimed that the

attorney failed to advise him of the need to purchase fire

insurance for the building. Id. Before trial, Alfano settled the claim against the attorney for $15,000. Id. Thereafter, a jury returned a verdict against the agency in the

amount of $30,000 but also found Alfano 35 percent

contributorily negligent and, accordingly, reduced the

award to $19,500. Id. The trial court denied the agency’s

motion to set aside the verdict but, under § 52-216a,

ordered a remittitur of $15,000, the amount that Alfano

had received from the attorney in settlement of his malpractice claim. Id.

On appeal, Alfano claimed that the remittitur was

improper because there was evidence before the jury to

support a substantially higher valuation of the building than that found by the jury. Id., 609. In rejecting

Alfano’s contention, our Supreme Court explained that,

although there had been some evidence to support a

higher valuation of the building, there also was ample

evidence to support the jury’s finding. See id., 610. The

court further explained that, although Alfano had alleged

additional elements of damage, such as the rental value

of the building from the date of the fire, interest, and

attorney’s fees, he had not challenged the trial court’s

Girolametti v. Larrabee

decision not to submit those items to the jury for its

consideration. Id. Thus, the court concluded that the

jury’s finding of damages “must be deemed a proper

basis for the trial court to have relied [on] in ordering

the remittitur.” Id.

The Supreme Court concluded in Alfano that the trial

court had not abused its discretion in determining that

the verdict, when considered with the settlement payment that Alfano had received from the attorney, was

excessive. Id., 611. Specifically, the court stated: “It

can hardly be disputed that . . . the award of $19,500 to

[Alfano] was excessive as a matter of law, because, when

the $15,000 received in the settlement with his attorney

is added to that sum, [Alfano] would receive total compensation of $34,500. This amount is $4500 greater than

the jury’s finding of $30,000 as the amount of [Alfano’s]

loss from the fire. The verdict was, therefore, excessive

as a matter of law by $4500, even if the jury had made no

deduction for the contributory negligence of [Alfano].”

Id. The court further observed that, with respect to the

net jury award of $19,500, because “the resulting verdict

of $19,500 represent[ed] a legally unassailable determination of fair compensation for [Alfano’s] loss under

our comparative negligence statute . . . any additional

compensation received by [Alfano] for that loss must be

deemed excessive as a matter of law. Accordingly, the

trial court’s order that [Alfano] remit the $15,000 he

had received in the settlement of his claim against his

attorney, of which the jury was unaware in rendering its

verdict, was entirely appropriate . . . .” Id.

This court must therefore determine whether, as in

Alfano, the jury’s award of economic loss and lost profits

damages are ascertainable, fixed, and absolute, whereby

“any additional compensation received by the plaintiff[s]

for that loss must be deemed excessive as a matter of

law”; id.; and, therefore, the court, by not reducing the

jury’s award by the presuit amount, abused its discretion.

In the present case, the jury heard testimony concerning the plaintiffs’ economic damages from John

Girolametti v. Larrabee

V. Melillo, a certified public accountant who provided

accounting and counseling services to the plaintiffs.

Melillo testified that John Girolametti and Cindy Girolametti, as the business owners, separated their real estate,

43 South Street, from their operating business, Party

Depot. The subject property was leased by 43 South

Street to Party Depot, and the rent payments were needed

to pay back the construction loan for the project at issue.

Melillo testified that he prepared income projections at

the time that John Girolametti obtained bank financing

for the work to be performed at 43 South Street and, after

John Girolametti and Cindy Girolametti were left with an

impaired structure, he assessed the resulting economic

losses suffered by 43 South Street and Party Depot.

As Melillo testified, “the whole idea was to build out

this [existing] building and expand its footprint to . . .

expand an existing wholesale line . . . . So, they’re going to put in two floors, a showroom space down below for wholesale goods and then a storage space up top where they can

keep bulk items. And, because . . . the building wasn’t up

to the ability to handle the weight, [John Girolametti]

couldn’t do that, he couldn’t use that building.

“So, my job was to figure out, okay, if he did use

that building, how . . . would we be reasonably sure he

would’ve had sales there, and if he didn’t have sales

there, he had a loss because why would he . . . build the

building out anyway. You . . . wouldn’t do it unless you

had an anticipation of profit.

“And once you couldn’t use the building then no sales,

which we fully anticipated to be realized, didn’t happen.

And because those sales didn’t happen, Party Depot . . .

had to rely on its existing business to try and cover the

bank loan. And so, he had a loss of rent, available rent,

and you had a loss of profit from sales.”

Melillo explained that, in calculating damages, he

relied on data pertaining to retail and wholesale sales

from the existing Party Depot location at 43 South Street

in Danbury, as well as the Party Depot location on Federal

Girolametti v. Larrabee

Road in Danbury. Melillo also relied on information provided to him by John Girolametti about these businesses,

as he had knowledge about what was “happening” in both

of these stores owned by him.

With respect to losses incurred by Party Depot, Melillo

first attempted to determine what sales were lost as a

result of building deficiencies, including the fact that

rental income was not generated in connection with

the second floor. He then attempted to determine what

additional costs were incurred by the plaintiffs in connection with the building that they were unable to use.

These included costs associated with taxes, utilities,

insurance, and elevator maintenance. Melillo testified:

“What we tried to do is to figure out a square footage of

what . . . was going to be built out on South Street, and

then figure out on a per square foot basis what the sales

were going to be for those square feet that were built.”

In this calculation, Melillo utilized data from the plaintiffs’ actual wholesale sales history, between 2008 and

2022, at two retail locations, including at the plaintiffs’

43 South Street location. Melillo also testified that he

attempted to determine what gross profits were realized by the plaintiffs related to those wholesale sales.

Ultimately, Melillo, relying on the data from the other

Party Depot locations until the time of trial, determined

what he believed Party Depot could earn “on a per square

foot basis” at the new structure if it was utilized for the

purposes for which it was intended.25

Melillo opined that, between 2008 and 2022, the Party

Depot sustained lost profits damages of $5,858,573, lost

rent connected with the second floor of the structure in

the amount of $791,667, lost rent connected with the

first floor of the structure in the amount of $3,199,268,

and additional expenses of $147,557.26 Melillo testified

25

Melillo testified that “the plan was to build out 10,800 feet for sale space at . . . $90.43 a foot of sales, [and] we came up with an annual sales value a little bit under a million dollars each year that we were anticipating.” He then testified that the impairment of the ability to use the wholesale display area at the store resulted in lost profits of $5,858,573.

26

These additional expenses were related to utility charges, elevator costs, and insurance.

Girolametti v. Larrabee

that, after subtracting additional costs that would have

been incurred by the plaintiffs if the business had been

operational, Party Depot sustained economic damages,

including lost profits, totaling $9,604,301.

Melillo testified that he provided an estimate of losses

incurred by 43 South Street, which included the loss of

income from self storage units, of varying sizes, that

the plaintiffs intended to rent to members of the public

on the second floor of the structure. Melillo, relying

on John Girolametti’s plans as well as research from

outside sources, developed an expectation about the

profits that 43 South Street could have realized from

renting such units. Subtracting the cost of the self storage units spread out over a twenty year period, Melillo

opined that 43 South Street could have obtained rent

totaling $732,923 in connection with the self storage

space on the second floor of the structure. After adding

extra real estate taxes paid by 43 South Street, Melillo

opined that 43 South Street incurred economic damages

totaling $1,164,603 as a result of the impairment of the

structure. Thus, Melillo opined that Party Depot and

43 South Street incurred losses totaling $10,768,904.

Subsequently, Melillo testified during cross-examination

that there was an error in one of the schedules on which

he relied concerning rent paid by Party Depot, which

ultimately reduced the losses he estimated by $211,922,

resulting in total losses of $10,556,982.

The plaintiffs presented testimony from Steven M.

DeBaise, a general contractor, with respect to the other

major component of their damages, namely, the cost of

remedial measures needed at the subject property to

correct the structural deficiencies at the heart of the

underlying lawsuits. DeBaise testified that he separated

the work to be performed into distinct phases. Before

calculating a specific estimate for each phase, he studied

plans for the remedial work that needed to be performed,

visited the site, and used an established methodology for

arriving at a competitive price for the work to be performed. This included estimating the materials needed to

Girolametti v. Larrabee

perform the work, the cost of those materials, the labor

necessary to perform the repairs, the cost of the labor, the cost of overhead, and the profit that he wanted to make

for performing the repairs. DeBaise testified that his

estimate also included costs related to permits, an office

trailer, temporary restrooms, temporary fencing, rental

equipment, forklifts, hoisting equipment, dumpsters,

and sales tax where necessary. DeBaise testified that he

had employed this methodology perhaps thousands of

times in his career in developing competitive estimates

for construction projects.

With respect to the first phase of the remedial work,

DeBaise testified: “[T]he first item I looked at is taking

the roof off. Removing the [heating, ventilating, and air

conditioning (HVAC)] equipment that’s already there,

and duct work. And then I worked down to the framing,

the stud walls, the new walls holding the structure. And

then what it was going to take to put it back. Maintain a

cover while you take it off, because to store it down below

you’ve got to cover it somehow and try to maintain that.

Then I had to put back the sprinklers, the HVAC system,

a new steel . . . frame for that HVAC equipment. There

ended up to be some draining—drainage installed and

[structures] to get the water to run to where it had to

go. Which all is entailed in this estimate.”

DeBaise testified that he employed the same methodology in arriving at an estimate for the other phases

of the project. The second phase included replacing the

structural elements of the pre-engineered building and

its foundation system, which failed to meet building

code requirements. The third phase included removing

lights, sprinklers, and ceiling and completely replacing

the second floor metal deck and reinforcing the concrete

slab in the new building, which is currently incapable

of supporting loads as required by the building code.

The fourth phase included reconstructing the first floor

garage structure foundation under the new building so

that it is compliant with the building code. The fifth

phase included the demolition and replacement of interior

Girolametti v. Larrabee

stairs. The sixth phase included the repair of the retaining wall in the front of the building. The seventh phase

included repairs to the front of the building. The eighth

phase included the cost of repairs for the demolition

and reconstruction of mechanical, electrical, plumbing, and fire protection sprinkler systems which were

not accounted for in other aspects of his estimate. The

ninth phase included the cost of salvaging and reusing

building components that needed to be removed while

remedial work was performed. The final phase of the

overall estimate included the cost of architecture, engineering, and consultation services, as well as the costs

related to certification by a licensed design professional.

DeBaise arrived at an initial estimate that was based

on labor and material costs as of January 13, 2014. He

then updated his estimate based on labor and material

costs at the time of trial, arriving at an estimate of

$5,544,404.04. After adding a minimum 10 percent

contingency cost to that amount,27 as DeBaise testified

was customary, his estimate for the fair market value

of remedial measures was $6,098,844.44.

During closing argument, the plaintiffs’ attorney

relied on the economic damages calculation made by

Melillo in the amount of $10,556,982 and the remedial

damages calculation made by DeBaise in the amount of

$6,098,844.44. Thus, the plaintiffs’ attorney, referring

to the two types of specific damage estimates, asked the

jury to award “the real remedial damages of six million

one. And also, the total economic damages and [lost]

profits of ten million five.”

As stated previously, in connection with the postverdict motion for remittitur filed by the city, the court

had before it the affidavit of John Girolametti that the

plaintiffs had received $280,000 in settlement proceeds

27

DeBaise testified that, because of expected fluctuations in market and labor costs, the fair market value of the repairs was expected to be “at least 10 percent” higher than his underlying calculations. Thus, the final estimate provided by DeBaise accounted for expected fluctuations in cost.

Girolametti v. Larrabee

in connection with their action brought against Larrabee. There is no dispute that that action was part of the

consolidated cases brought by the plaintiffs in connection with the construction project at issue in the actions

underlying this appeal. As stated previously, the court,

in denying the motion for remittitur, reasoned that the

jury had not included items of damage that are contrary

to law, not supported by proof, or contrary to the court’s

explicit and unchallenged instructions. Although we

are mindful of the court’s wide discretion in ruling on

motions for remittitur, we are persuaded that the court

erred in focusing solely on whether the evidence supported the jury’s award. Here, the issue was whether

the jury’s award was excessive as a matter of law and

should have been reduced in light of the settlement proceeds received by the plaintiffs. Evidence of the pretrial

settlement was properly not before the jury and, thus,

the jury did not consider the settlement proceeds paid to

the plaintiffs in calculating the plaintiffs’ compensable

losses. Because the motion for remittitur was based on

those settlement proceeds, the court should have considered them, along with the jury’s verdict, in determining

whether the verdict was excessive as a matter of law.

We are mindful that, in light of the claims brought

by the plaintiffs, the damage award encompassed economic compensation for damages, including lost profits

and remedial measures to their damaged structure. As

the evidence reflected, these types of damages, unlike

damages for pain and suffering, are capable of being

reduced to a specific dollar amount. Cf. Munn v. Hotchkiss School, 326 Conn. 540, 577, 165 A.3d 1167 (2017)

(describing damages for pain and suffering as damages

that “lie in an extremely uncertain area . . . one in which

it is quite impossible to assign values with any precision,

and, therefore, are best left to a jury” (internal quotation marks omitted)). Here, the plaintiffs’ evidence of damages, which was based on the testimony of Melillo and

DeBaise, supported an award of damages in the amount

of $16,655,826.44. The jury awarded damages in the

amount of $16,593,750, which is $62,076.44 less than

Girolametti v. Larrabee

that amount. Although the jury did not award the exact

amount sought by the plaintiffs, it awarded the plaintiffs

an amount that was less than one half of 1 percent of the

amount specifically sought by the plaintiffs.28

It is significant to our analysis that neither Melillo nor

DeBaise suggested a permissible range of damages. Each

witness used a methodology, supported by ascertainable

data and factual assumptions, by which each one arrived

at a specific award. Their testimony did not suggest that

additional damages were warranted. Consistent with

their testimony, the plaintiffs’ attorney invited the jury

to base its award on the damage estimates of Melillo and

DeBaise. Thus, the jury’s award of economic loss and lost

profits was based on evidence that was ascertainable,

fixed, and absolute.

In light of the evidence of damages, as well as the

nature of the damages at issue, we are persuaded that

the settlement payment, when added to the jury’s award,

renders that award excessive as a matter of law. For the

plaintiffs to recover the jury’s award and the settlement

payment would result in a level of compensation that

so exceeds the evidence of what is fair and reasonable

as to be unconscionable. Consistent with the authority

set forth in this opinion, any additional compensation

received by the plaintiffs is excessive as a matter of law.

For the foregoing reasons, we conclude that the court

abused its discretion in denying the city’s motion for

remittitur and that it is appropriate for the jury’s award

of damages to be reduced by $280,000, the amount of the

pretrial settlement proceeds received by the plaintiffs.

Because there are no factual issues in dispute with respect

to the amount of the jury’s award and the amount of the

settlement proceeds, the proper remedy is to remand the

28

We observe that “a jury may award a plaintiff less than the full amount of claimed economic damages when there is conflicting evidence as to whether the defendant caused the full extent of the claimed economic damages.” DeEsso v. Litzie, 172 Conn. App. 787, 800, 163 A.3d 55, cert. denied, 326 Conn. 913, 173 A.3d 389 (2017).

Girolametti v. Larrabee

case to the trial court with direction to grant the city’s

motion for a remittitur.

II

AC 47563

We next turn to the claim raised on appeal by Edward

Schullery. In their third amended complaint, the plaintiffs alleged that Schullery was an employee of the city

and, at times relevant, was acting through the city’s

Department of Buildings as a deputy building inspector.

The plaintiffs alleged that Schullery’s acts and omissions

were within the scope of his employment. In count one,

the plaintiffs alleged under § 52-557n (b) (7) that the

city, Null, and Schullery acted in reckless disregard for

health and safety with respect to the issuance of building

permits and the issuance of a certificate of occupancy. In

count two, the plaintiffs alleged under § 52-557n (b) (8)

that the city, Null, and Schullery acted in reckless disregard for health and safety with respect to conducting

inspections and/or failing to make inspections required

by the code. In our discussion of the plaintiffs’ claims

brought against the city in part I B of this opinion, we

set forth the detailed allegations on which the plaintiffs

relied in counts one and two.

Following the jury’s verdict in favor of the plaintiffs

as against Schullery in the amount of $250,000, Schullery, like the city, filed a motion to set aside the verdict and for a judgment notwithstanding the verdict.

In the memorandum of law accompanying the motion,

Schullery argued that there was insufficient evidence

to support a verdict against him under counts two and

three of the plaintiffs’ third amended complaint. In its

memorandum of decision denying Schullery’s motion,

as well as the similar motion filed by the city that we

addressed in part I B of this opinion, the court concluded

that “[m]ore than sufficient evidence—both testimonial

and documentary, fact and expert—was introduced to

support the jury’s conclusion that the defendants acted

Girolametti v. Larrabee

in reckless disregard for health and safety in connection

with the subject property.”

Schullery’s motion mirrors the motion for a directed

verdict and for a judgment notwithstanding the verdict

that was filed by the city. Similarly, his appellate arguments challenging the denial of that motion mirror those

made by the city concerning the denial of its motion for

a directed verdict and for a judgment notwithstanding

the verdict.29 Relying on the analysis set forth in part

29

Schullery acknowledges that he “had the most involvement of all city employees who dealt with the plaintiffs’ construction project.” The evidence reflects that Null issued the certificate of occupancy just days after Schullery conducted a final building inspection, which Schullery approved. This final approval occurred after Schullery acknowledged in a July 25, 2008 letter to John Girolametti that his office still lacked materials necessary to issue a certificate of occupancy. Schullery argues that the evidence reflects that he made “judgment calls” throughout his involvement with the project, but the evidence did not reflect a reckless disregard for health and safety. The evidence discussed in part I B of this opinion undermines his arguments.

In count four of their third amended complaint, the plaintiffs, relying on facts alleged in prior counts of the complaint, alleged that Schullery and Null committed various acts and omissions with respect to the plaintiffs’ building project and that their conduct “was committed with malice, wantonness or intent to injure the plaintiffs.” Moreover, the plaintiffs alleged in count four that, “[a]s a result of the malicious, wanton or intentional conduct of . . . Null and . . . Schullery, the plaintiffs have suffered damages.” In challenging the verdict returned against him by the jury in counts one and two of the plaintiffs’ third amended complaint, Schullery also relies on the fact that the jury found in connection with count four that he did not engage in conduct that was malicious, wanton, or with intent to injure the plaintiffs. Schullery argues that “[n]o verdict against [him] for recklessness can stand under circumstances where the jury has made a finding that [he] did not act maliciously, wantonly or intentionally.” Schullery’s argument is not persuasive for several reasons. We recognize that, although the plaintiffs did not allege reckless conduct in count four, our Supreme Court has characterized reckless conduct as being legally “indistinguishable” from malicious, wanton, and intentional conduct. Elliott v. Waterbury, 245 Conn. 385, 415, 715 A.2d 27 (1998). The causes of action alleged in counts one and two, however, were not common-law tort actions. Instead, they were brought under § 52-557n (b), and they required proof of a reckless disregard for health and safety in failing to follow the building code in connection with issuing permits and conducting inspections. Although our Supreme Court in Williams reasoned that the common-law definition of recklessness is instructive in applying

Girolametti v. Larrabee

I B of this opinion, we likewise conclude that the court

properly rejected Schullery’s claim that the judgment

rendered against him should be set aside on the ground

that it was contrary to the evidence. Schullery has not

demonstrated that the court erred in denying his motion

for a directed verdict and for a judgment notwithstanding the verdict.

The judgments are reversed in part and the cases are

remanded with direction to grant the city’s motion

for remittitur; the judgments are affirmed in all other

respects.

In this opinion the other judges concurred.

§ 52-557n (b); Williams v. Housing Authority, supra, 327 Conn. 384; we do not read that decision to support the proposition that actions brought under the statute are equivalent to actions for recklessness under the common law. Thus, Schullery is unable to demonstrate that the verdicts returned by the jury were in any way inconsistent.