Arbitration Agreements – Premises Liability

Authored by: Justin R. Bengtson
Brownstone Exploration & Discovery Park v. Diane Borodkin, 220 Conn. App. 806 (2023). Brownstone owned and operated a 27-acre park with zip lines, a waterslide, rock climbing activities, cliff jumping, and inflatables.  As a condition of entering the park, Brownstone’s patrons were required to sign an agreement releasing Brownstone from claims arising out of injuries resulting from risks inherent in the activities.  The agreement also contained an arbitration clause where the parties agreed that any claim arising out of participation in park activities shall be submitted to arbitration, and that the arbitrators shall decide whether the claim is subject to arbitration.  In this case, Diane Borodkin purchased a ticket to enter the park with her grandchild, and soon after entering the park, she tripped over a tree root and sustained injuries.  Borodkin commenced a personal injury action against Brownstone seeking damages for her injuries.  Brownstone filed a separate action seeking arbitration under the agreement.  The trial court determined that the claims were not subject to the arbitration provision, because, among other reasons, Borodkin’s claims sounded in ordinary negligence, not participation in the park’s “inherently hazardous” activities.  Brownstone’s appeal claimed error considering the agreement expressly reserved the question of arbitrability to the arbitrators. The Appellate Court agreed with Brownstone, carefully distinguishing the question of whether the case is arbitrable, and who decides the question of arbitrability.  Considering the parties specifically agreed that the arbitrators, and not a court, would decide the issue of arbitrability, the trial court’s decision was reversed with direction to compel arbitration so that the arbitrators could decide the issue of arbitrability.

Professional Responsibility – Attorney’s Fiduciary Duty to Non-Clients

Authored by: Megan Kittler
810 Woodward Avenue, LLC v. John I. Bolton, Superior Court, Judicial District of New Haven, 2023 WL 5926945 (Sept. 7, 2023).  This action arose out of the attorney defendant’s representant of a defendant, not a party to the lawsuit before the court, in a commercial summary process brought by the plaintiff.  The plaintiff owned a rental property and filed a summary process action against the defendant’s client for nonpayment of rent.  The parties stipulated that the defendant would deliver to the plaintiff’s attorney the outstanding funds by a date certain.  After the defendant’s client initially issued him a check payable to the defendant as trustee, the defendant’s client subsequently instructed him to return the funds and the defendant complied.  As a result, the plaintiff commenced a civil action alleging, among other things, that the defendant breached his fiduciary duty owed to the plaintiff by failing to transfer the funds.  After a trial, the Court issued a memorandum of decision regarding whether the defendant owed a fiduciary duty to the plaintiff.  The Court found that in this situation, where the defendant’s client expressly ordered him to return the funds, it would create a conflict of interest to impose a duty on the defendant in favor of the plaintiff. The Court stated that if the plaintiff was dissatisfied with the results of the settlement, it could have moved to vacate the settlement or enforce the settlement; however, the funds in question belonged to the defendant client and the client remained liable for the funds rather than the defendant attorney.  The Court noted that if the defendant took the funds and used them personally, he would have violated a fiduciary duty to the plaintiff as well as to his client, and this imposition of a duty in favor of the plaintiff would not be in conflict with the defendant’s duty to his client.

Workers’ Compensation – Temporary Total Disability Benefits – Voluntary Retirement

Authored by: Michaela Gonzalez
Cochran v. Dept. of Transportation, 220 Conn. App. 855 (2023).  The plaintiff suffered a compensable back injury in 1994 while working for the defendant.  Following the injury, the plaintiff underwent surgery then returned to work at his regular position.  In 2003, he accepted an incentivized retirement package from the defendant.  At that point, the plaintiff had worked for the defendant for 36 years and had no intention of returning to the workforce.  In a series of workers’ compensation hearings that followed, the plaintiff sought continued treatment for his back, reimbursement for expenditures, and settlement.  In July of 2017, the plaintiff was examined by a rehabilitation counselor, who opined that the plaintiff was “unable to compete for appropriate work within his physical capabilities, find an employer who will hire him, or to maintain employment on a sustainable basis.”  Following the hearings, the plaintiff sought temporary total disability benefits retroactively to 2003 and post specific wage loss benefits.  In 2021, an Administrative Law Judge (ALJ) issued findings and decided that the plaintiff was entitled to temporary total disability benefits for the three-month period following his surgery, and was entitled to temporary total disability benefits commencing in late 2017.  The ALJ found that the plaintiff had demonstrated, through medical testimony, that he was totally disabled during the three-month period following his surgery and that the surgery was related to his 1994 injury. The ALJ further held that the plaintiff satisfied his burden of proving entitlement to temporary total disability benefits as of late 2017, because he established through nonphysician vocational rehabilitation testimony that he was unemployable as of that date.  The defendant appealed this decision to the Compensation Review Board.  In 2022, the Compensation Review Board affirmed the ALJ’s decision stating that Connecticut General Statutes § 31-307 in its current form, imposes no constraints on a claimant’s ability to collect temporary total disability benefits due to retirement status.  On appeal, the Appellate Court found that the plain and unambiguous statutory language requires that, in order to be eligible for temporary total disability benefits, a claimant’s injury must result in a total incapacity to work.  The Appellate Court further elaborated that the plaintiff did not meet his burden of proving that he was entitled to temporary total disability benefits for the period of 2003 to 2017 because he did not show that he actively sought work but did not secure any during that time.  In addition, the plaintiff had not pursued any rehabilitation services, did not request alternative working conditions from the defendant, and did not request to rescind his retirement.  The Appellate Court concluded that the statutory language did not entitle the plaintiff to temporary total disability benefits where he elected to take an incentivized early retirement and never intended to re-enter the workforce because it cannot be said that the injury resulted in his total incapacity to work.  The Appellate Court reversed the decision of the Compensation Review Board and remanded with direction to reverse the decision of the ALJ with respect to the award of temporary total disability benefits.