McDermott v. State ( 2015 )

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MADELINE MCDERMOTT, ADMINISTRATRIX
(ESTATE OF WILLIAM MCDERMOTT), ET
AL. v. STATE OF CONNECTICUT
(SC 19221)
Rogers, C. J., and Palmer, Zarella, Eveleigh and Espinosa, Js.
Argued January 9—officially released April 28, 2015
Hugh D. Hughes, with whom, on the brief, was
Thomas McNamara, for the appellants (plaintiffs).
Michael R. Bullers, assistant attorney general, with
whom were Maite Barainca, assistant attorney general,
and, on the brief, George Jepsen, attorney general, for
the appellee (state).
Opinion
EVELEIGH, J. The plaintiff, Madeline McDermott,
both individually and in her capacity as administratrix
of the estate of her husband, William McDermott (dece-
dent),1 appeals from the judgment of the Appellate
Court, reversing the judgment of the trial court in her
favor and remanding the case with direction to render
judgment in favor of the defendant, the state of Connect-
icut. See McDermott v. State, 145 Conn. App. 75, 73
A.3d 886 (2013). On appeal to this court, the plaintiff
contends that the Appellate Court improperly reversed
the judgment of the trial court on the ground that the
trial court had improperly determined that the defen-
dant had assumed a greater duty of care than reflected
in industry standards. The plaintiff also claims that the
Appellate Court improperly concluded that the defen-
dant’s actions were not the proximate cause of the
death of the decedent. While we agree with the Appel-
late Court that the judgment of the trial court must
be reversed, we disagree with the Appellate Court’s
decision to remand the present case to the trial court
with direction to render judgment in favor of the defen-
dant. Instead, we conclude that the trial court used the
wrong standard in determining that the defendant was
liable and, therefore, under our case law, the matter
must be returned to the trial court for a new trial in
which the proper standard is applied. Therefore, we
affirm the judgment of the Appellate Court in part,
reverse the judgment of the Appellate Court in part,
and order a new trial.
The opinion of the Appellate Court sets forth the
following facts and procedural history. ‘‘On February
8, 2005, employees from the defendant’s Department
of Transportation were dispatched to Cromwell to
remove a fifty-five foot sugar maple tree that was
located on a grass strip bounded easterly by Main Street
and westerly by a pedestrian sidewalk. Upon arrival,
the work crew, consisting of six men, marked the work
site with two traffic cones that were placed on the
sidewalk. One cone was located approximately eighty-
five feet to the south of the tree, and the other cone
was located approximately [100] feet to the north of
the tree. The two cones were not moved during the
course of the tree removal operation.
‘‘The crew then proceeded to remove the limbs from
the tree. After the ‘limbing’ had been completed, the
crew removed the remaining tree trunk in segments
beginning at the top and progressing downward, a pro-
cedure known as ‘chunking.’ At approximately 1:30
p.m., the decedent, a pedestrian with no connection to
the removal operation, approached the work site. He
walked approximately thirty feet past the southern side-
walk cone and stood between two members of the work
crew. At that point, the three men were approximately
fifty-five feet from the surface of the tree, which was
now approximately twenty-five feet in height. They
watched as another crew member in a bucket truck
prepared to remove an additional ten foot chunk from
the tree trunk. One end of a rope was tied to the top
of the remaining tree, and the other end of the rope
was tied to a pickup truck. After appropriate cuts were
made in the tree, the pickup truck pulled the truck
segment in a southerly direction. The tree segment fell
to the ground in a controlled manner and landed in the
general area in which it was anticipated to fall.
‘‘When the trunk segment hit the ground, however,
it fell on one of the limbs that previously had been
removed from the tree. The limb, described as a log
approximately twenty-five inches in length, was pro-
pelled into the air by the force of the falling trunk
segment, and it flew at great speed and a low trajectory
toward the decedent and the two crew members. The
log struck the decedent’s forehead. He fell backward
and hit the back of his head on the sidewalk. After
striking the decedent, the log continued to travel more
than thirty additional feet and came to rest approxi-
mately ninety feet from the tree. The decedent died as
the result of being hit by the log, either by the force of
the log’s impact with his forehead or by hitting the back
of his head on the sidewalk after the impact caused
him to fall backward. The plaintiff commenced this
action against the defendant, seeking damages for
wrongful death and loss of consortium, after permission
to sue had been granted by the [C]laims [C]ommissioner
pursuant to General Statutes § 4-160 et seq.
‘‘By agreement of the parties, the court bifurcated
the liability and damages phases of the trial. After seven
days of evidence, the court issued a memorandum of
decision on June 15, 2011, concluding that the defendant
was liable to the plaintiff on both counts of her com-
plaint. In that decision, the court made the following
determinations: (1) the exact circumstances of the
decedent’s death were not reasonably foreseeable
because there was no evidence that anyone had ever
been killed or injured in such a manner from such a
distance during a tree removal operation; (2) the pre-
vailing safety standard in the tree removal industry is
that persons who are not directly involved in cutting
the tree should stand at least two tree lengths away
from the tree; (3) the decedent was standing more than
two tree lengths away from the remaining tree trunk
when he was struck by the log; (4) the prevailing safety
standard did not absolve the defendant from liability
because ‘ ‘‘[e]vidence of custom in the trade . . . is
not conclusive’’ ’; (5) the fact that the decedent was
standing within the area marked by the sidewalk traffic
cones was the ‘determinative’ factor in this case; (6)
although the cones could have been moved closer to
the tree as chunks of the tree trunk were removed,
the crew did not move the cones and the defendant
‘voluntarily assumed a duty that may not have been
legally imposed upon it otherwise’; (7) ‘requiring work
crews to keep bystanders and pedestrians out of work
zones that they themselves have established is entirely
consistent with the public policy favoring a safe popu-
lace and a realistic vision of acceptable risk’; (8) in
demarcating the limits of the work zone with the traffic
cones, the work crew established the limits of its duty
to the decedent; (9) the defendant violated that duty
of care by allowing the decedent to stand within the
demarcated work zone during the tree removal opera-
tion; and (10) the defendant’s violation of that duty of
care proximately caused the decedent’s death. The
court subsequently held a hearing in damages and
awarded the plaintiff $46,371.65 in economic damages,
$825,000 in noneconomic damages, and $435,000 in
damages for loss of consortium.’’ Id., 77–79.
In addition, although the trial court held that the
exact circumstances of the decedent’s death were not
foreseeable, the trial court noted correctly that ‘‘to meet
the test of foreseeability, the exact nature of the harm
suffered need not have been foreseeable, only the ‘gen-
eral’ nature of the harm.’’ (Emphasis omitted.) Lodge
v. Arett Sales Corp., 246 Conn. 563, 573, 717 A.2d 215
(1998). The trial court further stated that ‘‘[w]hile the
specific event that caused [the decedent’s] death was
not legitimately foreseeable, the general nature of the
harm (i.e., the possibility of a bystander suffering injury
or death within the perimeter of a tree removal site),
certainly was.’’ Additional facts will be set forth as nec-
essary.
A majority of the Appellate Court panel disagreed
with the trial court that the defendant in the present
case assumed the duty to remove the decedent from
the area in which he was standing simply because of
the location of the cones.2 McDermott v. State, supra,
145 Conn. App. 83. The Appellate Court held that the
trial court did not make sufficient findings to justify a
conclusion that the defendant had voluntarily assumed
a greater duty. Id., 84. Further, the Appellate Court held
that, under the circumstances of the present case, the
defendant’s conduct was not the proximate cause of
the decedent’s death. Id. Therefore, the Appellate Court
reversed the judgment of the trial court and remanded
the matter to the trial court with direction to render
judgment in favor of the defendant. Id., 87. The plaintiff
filed a petition for certification to appeal, which we
granted, limited to the following questions: (1) ‘‘Did the
Appellate Court properly reverse the judgment of the
trial court on the basis that the trial court incorrectly
found that the [defendant] had assumed a greater duty
of care than that reflected in industry custom or stan-
dards?’’; and (2) ‘‘Did the Appellate Court properly con-
clude that the [defendant’s conduct] was not the
proximate cause of the death of the [plaintiff’s] dece-
dent?’’ McDermott v. State, 310 Conn. 937, 79 A.3d
890 (2013).
On appeal, the plaintiff contends that the Appellate
Court improperly: (1) held that an industry standard of
care for workers binds courts to apply it to pedestrians
in the absence of a specifically articulated finding that
the industry standard is unreasonable; (2) disturbed
the trial court’s finding that the harm was reasonably
foreseeable; (3) required the plaintiff to show the spe-
cific kind of harm that occurred in the past; and (4)
determined that there was no proximate cause. In
response, the defendant asserts that the Appellate Court
properly concluded that the trial court had incorrectly
determined that the defendant voluntarily assumed a
greater duty of care and established a strict liability
standard. The defendant claims that the reasonable
industry standard was the appropriate standard to use
and to evaluate the claim that its duty to the decedent
was to exercise reasonable care. Further, the defendant
argues that the Appellate Court properly determined
that there was no proximate cause in the present case
and that the plaintiff is not entitled to a new trial. We
agree with the Appellate Court that the trial court used
an improper standard. Contrary to the Appellate Court
judgment, however, we remand the case for a new trial
so that the correct standard may be applied to the facts
of the present case. We address the issue regarding
proximate cause to the extent that issue is likely to
arise on remand.
I
The plaintiff first claims that the Appellate Court
improperly reversed the judgment of the trial court on
the ground that the trial court incorrectly determined
that the defendant had assumed a duty of care greater
than what was legally required. In response, the defen-
dant claims that the Appellate Court properly concluded
that the factual findings made by the trial court did not
support its conclusion that the defendant voluntarily
assumed a duty of care beyond that legally imposed.
We agree with the defendant.
We begin by setting forth the governing legal princi-
ples and standard of review. We begin with the standard
of review. ‘‘When . . . the trial court draws conclu-
sions of law, our review is plenary and we must decide
whether its conclusions are legally and logically correct
and find support in the facts that appear in the record.’’
(Internal quotation marks omitted.) Mirjavadi v.
Vakilzadeh, 310 Conn. 176, 191, 74 A.3d 1278 (2013).
‘‘The essential elements of a cause of action in negli-
gence are well established: duty; breach of that duty;
causation; and actual injury. . . . Contained within the
first element, duty, there are two distinct considera-
tions. . . . First, it is necessary to determine the exis-
tence of a duty, and [second], if one is found, it is
necessary to evaluate the scope of that duty. . . . The
issue of whether a duty exists is a question of law . . .
which is subject to plenary review. We sometimes refer
to the scope of that duty as the requisite standard of
care.’’ (Citations omitted; internal quotation marks
omitted.) LePage v. Horne, 262 Conn. 116, 123, 809 A.2d
505 (2002).
‘‘Duty is a legal conclusion about relationships
between individuals, made after the fact, and [is] imper-
ative to a negligence cause of action. . . . Thus, [t]here
can be no actionable negligence . . . unless there
exists a cognizable duty of care. . . . [T]he test for the
existence of a legal duty entails (1) a determination of
whether an ordinary person in the defendant’s position,
knowing what the defendant knew or should have
known, would anticipate that harm of the general nature
of that suffered was likely to result, and (2) a determina-
tion, on the basis of a public policy analysis, of whether
the defendant’s responsibility for its negligent conduct
should extend to the particular consequences or partic-
ular plaintiff in the case.’’ (Internal quotation marks
omitted.) Mazurek v. Great American Ins. Co., 284
Conn. 16, 29, 930 A.2d 682 (2007). ‘‘[T]he fact finder
must consider whether the defendant knew, or should
have known, that the situation at hand would obviously
and naturally, even though not necessarily, expose [the
decedent] to probable injury unless preventive mea-
sures were taken.’’ (Internal quotation marks omitted.)
LePage v. Horne, supra, 262 Conn. 124.
The trial court fully explained the duty it employed
in rendering a verdict for the plaintiff. Citing, inter alia,
§ 323 of the Restatement (Second) of Torts, the trial
court held that ‘‘[i]n setting the perimeter of the work
zone, the work crew voluntarily assumed a duty that
may not have been legally imposed upon it otherwise.
A person who voluntarily performs an act, without legal
obligation to do so, has the same duty of care in per-
forming that act that any other person would have under
the same circumstances.’’ (Internal quotation marks
omitted.) In its conclusion the trial court opined: ‘‘In
setting the limits of the work zone, the work crew estab-
lished the limits of its duty to [the decedent] and other
pedestrians. Allowing [the decedent] to stand within
that zone for an extended period of time during tree
removal operations was a negligent violation of that
duty; a violation that proximately caused [the dece-
dent’s] death. Judgment shall enter in favor of [the]
plaintiff on the issue of liability on all counts of the
complaint and the court will hold a hearing in damages
at a later date.’’
Section 323 of the Restatement (Second) of Torts,
upon which the trial court based its decision, provides:
‘‘One who undertakes, gratuitously or for consideration,
to render services to another which he should recognize
as necessary for the protection of the other’s person
or things, is subject to liability to the other for physical
harm resulting from his failure to exercise reasonable
care to perform his undertaking, if (a) his failure to
exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance
upon the undertaking.’’
In the present case, we agree with the Appellate Court
majority that ‘‘the [trial] court did not find that the
decedent relied upon the placement of the cones when
he walked within the area to stand with the crew mem-
bers. Further, the court did not find that the risk of
harm of being hit by tree debris had increased because
the southerly cone, instead of being placed fifty feet
from the tree in accordance with industry standards,
was placed eighty-five feet from the tree in excess of
industry standards. The decedent was standing fifty-
five feet from the tree when hit. The log traveled more
than ninety feet, which was further than even the ‘volun-
tarily assumed’ coned demarcations of the work site.’’
McDermott v. State, supra, 145 Conn. App. 84. There-
fore, the trial court did not make the requisite factual
findings necessary to conclude that the defendant had
voluntarily assumed a greater duty than that which was
legally required. We conclude that, without these find-
ings, the trial court improperly applied the standard set
forth in § 323 of the Restatement (Second) of Torts.
II
After reversing the judgment of the trial court, the
Appellate Court remanded the case with direction to
render judgment in favor of the defendant. We disagree
with this result. Having concluded that the trial court
applied the wrong legal standard to the facts of the
present case, we conclude that it is necessary to remand
the case to the trial court for a new trial to allow the
parties to present their cases with the correct legal
standard in mind and to allow the trial court to evaluate
the facts in light of this correct legal standard.
We have often stated that, a party is generally entitled
to a new trial when, on appeal, a different legal standard
is determined to be required, unless we conclude that,
based on the evidence, a new trial would be pointless.
See State v. Sanseverino, 291 Conn. 574, 588–89, 969
A.2d 710 (2009). We presume that ‘‘any insufficiency in
proof was caused by the subsequent change in the law
. . . [and] not the [party’s] failure to muster evidence.’’
(Internal quotation marks omitted.) Id., 588; see also
O’Dell v. Kozee, 307 Conn. 231, 234–35, 53 A.3d 178
(2012) (new trial required when trial court did not make
required finding of visible intoxication necessary for
liability under General Statutes § 30-102).
Recently, we required a new trial where, ‘‘the trial
court’s failure to consider whether preventing an abduc-
tion continued to be a purpose of the supervised visita-
tions . . . and its failure to consider the defendant’s
duty in light of the presence or absence of that purpose,
rendered its analysis of the foreseeability of the abduc-
tion and its judgment in favor of the defendant fatally
flawed.’’ Mirjavadi v. Vakilzadeh, supra, 310 Conn.
194–95.
Similar to the trial court’s failure in Mirjavadi, the
trial court’s failure to apply the correct legal standard
to determine whether the defendant had assumed a
greater duty of care than that which is legally required
rendered its analysis of whether the defendant breached
a duty to the decedent, and the judgment in favor of
the plaintiff, fatally flawed. Accordingly, we conclude
that the present case must be remanded for a new trial.
III
Having determined that the wrong standard was
applied in the present case, and that the matter must
be remanded for a new trial, we now consider the appro-
priate standard that should be applied upon remand.
The defendant concedes that a tree removal operation
could be dangerous and that the work crew was under
a duty to exercise reasonable care for the safety of the
general public. The defendant further concedes that
‘‘[s]pecifically as to the circumstances of this case,
meeting the standard of care or scope of duty as to [the
decedent] meant keeping him a safe distance from the
tree cut being made during his presence.’’ We agree.
In view of the fact that the defendant has conceded
that it owed a duty to the decedent, it is only necessary
for us to discuss the scope of that duty. ‘‘[T]he test for
the existence of a legal duty entails (1) a determination
of whether an ordinary person in the defendant’s posi-
tion, knowing what the defendant knew or should have
known, would anticipate that harm of the general nature
of that suffered was likely to result, and (2) a determina-
tion, on the basis of a public policy analysis, of whether
the defendant’s responsibility for its negligent conduct
should extend to the particular consequences or partic-
ular plaintiff in the case.’’ (Internal quotation marks
omitted.) Mirjavadi v. Vakilzadeh, supra, 310 Conn.
192.
In determining the scope of the duty in the present
case, the trial court considered the following: ‘‘[T]he
fundamental policy purposes of the tort compensation
system [are] compensation of innocent parties, shifting
the loss to responsible parties or distributing it among
appropriate entities, and deterrence of wrongful con-
duct . . . . It is sometimes said that compensation for
losses is the primary function of tort law . . . [but it]
is perhaps more accurate to describe the primary func-
tion as one of determining when compensation [is]
required. . . . An equally compelling function of the
tort system is the prophylactic factor of preventing
future harm . . . . The courts are concerned not only
with compensation of the victim, but with admonition
of the wrongdoer. . . . [I]mposing liability for conse-
quential damages often creates significant risks of
affecting conduct in ways that are undesirable as a
matter of policy. Before imposing such liability, it is
incumbent upon us to consider those risks. . . . The
court is keenly aware that requiring tree removal crews
to guarantee the safety of all pedestrians and passersby
would make the cost of tree removal prohibitive; a
result that would clearly run counter to the public inter-
est. However, requiring work crews to keep bystanders
and pedestrians out of work zones that they themselves
have established is entirely consistent with the public
policy favoring a safe populace and a realistic vision of
acceptable risk.’’ (Citations omitted; internal quotation
marks omitted.)
The defendant contends that meeting the standard
of care or scope of the duty as to the decedent meant
keeping him a safe distance from the tree cut being
made during his presence. The defendant further
asserts that the industry standard, which requires the
protected work zone to be two times the height of the
tree, was the appropriate standard of care under the
facts of the present case. Therefore, in view of the fact
that the decedent was approximately five feet outside
of the industry standard, the defendant had no duty of
care to the decedent because he was beyond the scope
of the defendant’s duty. In response, the plaintiff con-
tends that industry standards have never been binding
on a civil court of law. She points to the fact that the
standards introduced at trial were standards imposed
for workers, not pedestrians. We agree with the
plaintiff.
We further agree with the trial court that ‘‘[e]vidence
of custom in the trade may be admitted on the issue
of the standard of care, but it is not conclusive.’’ Coburn
v. Lenox Homes, Inc., 186 Conn. 370, 381, 441 A.2d 620
(1982); see also 2 Restatement (Second), Torts § 295A,
comment (c) (1965). ‘‘[I]n most cases reasonable pru-
dence is in fact common prudence; but strictly it is
never its measure . . . . Courts must in the end say
what is required; there are precautions so imperative
that even their universal disregard will not excuse their
omission.’’ T. J. Hooper, 60 F.2d 737, 740 (2d Cir.),
cert. denied sub nom. Eastern Transportation Co. v.
Northern Barge Corp., 287 U.S. 662, 53 S. Ct. 220, 77
L. Ed. 571 (1932). The trier of fact is not bound by the
industry standard, but rather should consider it in light
of the totality of the evidence presented in the case.
Coburn v. Lenox Homes, Inc., supra, 381.
Therefore, we disagree with the Appellate Court to
the extent that it ruled that the industry standard was
an absolute bar to liability in this matter. Rather, the
standard is but one piece of information for the court to
consider along with, inter alia, the fact that the standard
may apply only to workers,3 the position of the decedent
with respect to the distance required by the industry
standard, the amount of time the decedent was in the
work zone without being asked to leave, whether the
distances involved are precise measurements, whether
workers would have known the exact measurements
in question before requiring a person to leave the area,
and whether the workers were required to request any-
one, other than a fellow worker or supervisor, to leave
the work zone area either immediately upon entry or
within a reasonable time thereof. Therefore, we con-
clude that the standard to be used is the general negli-
gence standard of duty, breach, causation and actual
injury.
IV
In light of the fact that we are remanding the matter
for a new trial we address, as a matter likely to arise
on remand, the plaintiff’s claim that the conduct of the
defendant’s employees, namely failing to remove the
decedent from the area marked by the cones, was not
the proximate cause of the decedent’s death.
The Appellate Court concluded that ‘‘[t]he question
of proximate cause is generally a factual issue. It
becomes a question of law, however, when the mind
of a fair and reasonable person could reach only one
conclusion. Under the circumstances of this case, we
conclude that the issue of proximate cause is a question
of law and that the defendant’s conduct was not the
proximate cause of the decedent’s death.’’ McDermott
v. State, supra, 145 Conn. App. 87. We disagree.
Proximate cause is ‘‘[a]n actual cause that is a sub-
stantial factor in the resulting harm . . . . The funda-
mental inquiry of proximate cause is whether the harm
that occurred was within the scope of foreseeable risk
created by the defendant’s negligent conduct. . . .
Foreseeability is likewise considered when the defen-
dant claims there has been no negligence because an
unforeseeable intentional tort, force of nature, or crimi-
nal event superseded the tortious conduct.’’ (Citation
omitted; internal quotation marks omitted.) Mirjavadi
v. Vakilzadeh, supra, 310 Conn. 192. ‘‘[T]o be within
the scope of the risk, the harm actually suffered must
be of the same general type as that which makes the
defendant’s conduct negligent in the first instance.’’
(Emphasis omitted; internal quotation marks omitted.)
Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597,
609, 662 A.2d 753 (1995).
In the present case, we conclude that it is impossible
to determine from the current record whether ‘‘the mind
of a fair and reasonable person could reach only one
conclusion [regarding the foreseeability of the harm].’’
McDermott v. State, supra, 145 Conn. App. 87. ‘‘The
question of proximate causation generally belongs to
the trier of fact because causation is essentially a factual
issue. . . . ‘It becomes a conclusion of law only when
the mind of a fair and reasonable [person] could reach
only one conclusion; if there is room for a reasonable
disagreement the question is one to be determined by
the trier as a matter of fact.’ . . . Therefore, only if the
[intervening factor] was not foreseeable as a matter of
law will this court reverse the jury’s determination.’’
(Citations omitted.) Stewart v. Federated Dept. Stores,
Inc., supra, 234 Conn. 611. In Stewart, the plaintiff had
been murdered in a parking garage with a history of
robberies, but no history of killings. Id., 601. This court
concluded that the trial court correctly instructed the
jury to consider the general nature of the harm, i.e., the
criminal activity in the garage and in the surrounding
area, to determine the scope of the risk, despite the
defendant’s claim that its negligence, if any, was not
the proximate cause of the decedent’s death because
of the intervening act of the murderer. Id., 609.
In the present case, the trial court found as a matter
of fact that the cones delineated the work zone. Whether
the failure of the defendant’s employees to remove the
decedent from the work zone was negligent, and
whether that negligence was the proximate cause of
the injury, were questions of fact for the trier. The issue
cannot be resolved by reference to an industry standard
that does not appear to apply to pedestrians and, in
and of itself, is not conclusive evidence of negligence
or the lack thereof. Further, the issue of the defendant’s
control of its work zone, and the subsequent failure to
remove the decedent from that zone, may also be an
issue of fact for the trier. The trial court found that it
was reasonably foreseeable that a bystander would be
fatally injured by a tree being cut when the bystander
was within the perimeter of a tree removal work zone.
The issue is certainly debatable among reasonable peo-
ple. Therefore, the issue must be determined by the
trier of fact.
V
For the foregoing reasons, we agree with the Appel-
late Court that the trial court used the wrong standard
in its determination of liability and damages. Therefore,
the judgment of the Appellate Court reversing the judg-
ment of the trial court is affirmed. We disagree, how-
ever, with the Appellate Court’s determinations of the
conclusiveness of industry standard, foreseeability and
proximate cause. Therefore, we reverse the judgment
of the Appellate Court as it relates to rendering judg-
ment in favor of the defendant, and remand the case
to the Appellate Court with direction to remand the
case to the trial court for a new trial.
The judgment of the Appellate Court is affirmed with
respect to the reversal of the trial court’s judgment in
favor of the plaintiff; the judgment of the Appellate
Court is reversed with respect to the direction to render
judgment on remand in favor of the defendant, and the
case is remanded to the Appellate Court with direction
to remand the case to the trial court for a new trial in
accordance with this opinion.
In this opinion the other justices concurred.
1
For convenience, we refer to Madeline McDermott in both capacities as
the plaintiff.
2
Judge Pellegrino authored a dissenting opinion in which he concluded
that ‘‘the defendant had a duty to protect members of the public from
foreseeable harm within the coned work zone it had created, and, accord-
ingly, that the determinative fact in this case is that the decedent was
standing within the perimeter of the work zone at the time he was struck
by the log.’’ McDermott v. State, supra, 145 Conn. App. 88.
3
Cf. Considine v. Waterbury, 279 Conn. 830, 867–68, 905 A.2d 70 (2006)
(building code violation not specifically designed to protect plaintiff may
be evidence of standard of care in industry).