Vermont Mutual Ins. Co. v. Fern , 165 Conn. App. 665 ( 2016 )

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VERMONT MUTUAL INSURANCE COMPANY
v. BRUCE FERN, SR., ET AL.
(AC 37771)
Gruendel, Prescott and Bear, Js.*
Argued January 7—officially released May 24, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Hon. George N. Thim, judge trial referee.)
A. Jeffrey Somers, for the appellant (named
defendant).
Stuart G. Blackburn, with whom was Derek E. Don-
nelly, for the appellee (plaintiff).
Opinion
BEAR, J. The defendant Bruce Fern, Sr., appeals from
the judgment of the trial court in favor of the plaintiff,
Vermont Mutual Insurance Company. The plaintiff
brought this subrogation action against the defendant
and his son, the defendant Bruce Fern, Jr.,1 to recover
damages resulting from a fire occurring on a residential
property on November 6, 2011. The defendant argues
that the court erred in determining that (1) the defen-
dant owed a duty to the plaintiff’s insured and (2) the
defendant installed a boiler and was equally at fault
with his son. We affirm the judgment of the trial court.
In its memorandum of decision, the court made the
following findings of fact. The defendant and his son
both work as contractors, although only the defendant
is a registered improvement contractor. Although both
had some prior experience in installing new boilers,2
neither the defendant nor his son has the necessary
occupational license to engage in plumbing and piping
work or heating, piping, and cooling work.
Charles Loria (insured) was the owner of property
located at 155 Twin Lanes Road in Easton (property),
on which he possessed an insurance policy issued by
the plaintiff. At the time of the fire, the insured’s former
wife, Elizabeth Loria (occupant), lived on the property
with her children.3 She told investigators subsequent to
the fire that the defendant and his son had installed the
boiler about a week before the fire occurred.
On the day of the installation, the defendant and his
son arrived at the property, removed the old boiler, and
installed the new boiler. The defendant was responsible
for certain aspects of the installation of the new pipe
connecting the boiler to the chimney. This work
involved measuring the pipe, making the proper cuts,
and installing the adapter4 that connected the pipe and
chimney into the masonry. When installing the chimney
connector into the masonry, the defendant used a two-
by-four board to knock the adapter into the chimney.
He also held the pipe in place while his son affixed the
adapter and the pipe to one another. No further action,
such as the use of cement or strapping the pipe in place,
was taken to secure the chimney connector into the
chimney. The defendant did not read the installation
manual for the boiler or speak with a building inspector
about the applicable regulations governing the installa-
tion of the boiler. The defendant’s son ignited the boiler,
but failed to make any adjustments to the appliance as
required by the manufacturer.
Approximately one week after the defendant and his
son installed the boiler, the chimney connector became
disconnected from the masonry.5 As a result, exhaust
gases from the boiler were directed onto the joists of
the basement ceiling and, over time, generated suffi-
cient heat to start the fire. From the basement, the
fire spread to other parts of the property, resulting in
damages exceeding $350,000.
During the subsequent investigation into the fire, two
potential causes were identified as causing the fire.
First, the boiler had not been placed to the proper
settings and adjusted as required during the initial
installation; consequently, the boiler had been running
improperly and accumulated a large amount of soot.
Second, the chimney connector had not been cemented
into the chimney or secured in place by a separate piece
of equipment; consequently, it became dislodged from
the chimney. One of the investigators stated that, if the
chimney connector had been secured properly into the
chimney, the connector would not have become discon-
nected due to the improper installation and adjustment
of the burner.
In its amended complaint, the plaintiff asserted two
theories for recovery: (1) the defendant and his son
had acted negligently in installing the boiler (counts
one and three); and (2) they had breached an implied
covenant that all work would be performed in a work-
manlike manner (counts two and four). Following a
trial to the court, the court issued its memorandum of
decision on February 26, 2015. Recounting the essen-
tials of this chronology, the court found that both the
defendant and his son had violated various statutes and
regulations while installing the boiler. Consequently,
the court held that the defendant and his son had acted
negligently and violated an implied covenant that their
work would be done in a workmanlike manner, their
actions were the proximate cause of the fire, and they
were equally at fault. Therefore, the court found in favor
of the plaintiff on each count of its complaint. This
appeal followed.
I
On appeal, the defendant primarily asserts that the
court erred in finding that he owed a duty to the insured
or the occupant. The defendant asserts that the
resulting fire was unforeseeable to him because his role
in installing the boiler was relatively limited. In making
this argument, the defendant relies on the difference
in the type and character of his work when compared
to that of his son. In particular, the defendant asserts
that his son was the contractor retained or engaged by
the occupant, made the agreement to install the boiler,
held himself out as having the necessary skill and exper-
tise to install the boiler, and, thus, had the ultimate
responsibility for verifying that the boiler was properly
installed. The defendant frames his personal involve-
ment much more narrowly, contending that he was
merely a laborer or helper, rather than a subcontractor,
and claims as support that he took direction from his
son, was not paid for his labor, and never held himself
out as having any skill whatsoever in boiler installation.
We disagree.
We begin by noting that the defendant’s argument
appears to confuse the existence of a duty with the
scope of that duty once one is found to exist;6 thus, he
blends together two separate concerns. ‘‘The essential
elements of a cause of action in negligence are well
established: duty; breach of that duty; causation; and
actual injury. . . . Contained within the first element,
duty, there are two distinct considerations. . . . First,
it is necessary to determine the existence 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.’’ (Internal
quotation marks omitted.) Doe v. Hartford Roman
Catholic Diocesan Corp., 317 Conn. 357, 373, 119 A.3d
462 (2015).
‘‘A duty to use care may arise from a contract, from
a statute, or from circumstances under which a reason-
able person, knowing what he knew or should have
known, would anticipate that harm of the general nature
of that suffered was likely to result from his act or
failure to act.’’ Coburn v. Lenox Homes, Inc., 186 Conn.
370, 375, 441 A.2d 620 (1982). Although ‘‘[t]he ultimate
test of the existence of a duty to use care is found
in the foreseeability that harm may result if it is not
exercised . . . [f]oreseeability in this context is a flexi-
ble concept, and may be supported by reasonable reli-
ance, impeding others who might seek to render aid,
statutory duties, property ownership or other factors.’’
(Citation omitted; internal quotation marks omitted.)
Burns v. Board of Education, 228 Conn. 640, 647, 638
A.2d 1 (1994), overruled on other grounds by Haynes
v. Middletown, 314 Conn. 303, 323, 101 A.3d 249 (2014).
In holding that the defendant was liable for the fire,
the court did not engage in a separate analysis concern-
ing whether it was foreseeable that a fire could occur.
Instead, it relied on two groups of statutes and regula-
tions that the defendant and his son contravened while
installing the boiler. It first noted that although neither
the defendant nor his son had the occupational license
required by statute for this work, they wilfully engaged
in this work and the fire was ‘‘[t]he harm that . . . the
licensing requirement was designed to prevent.’’ It also
noted that certain codes and standards promulgated by
the National Fire Protection Association (standards)
had been incorporated into our law and were not fol-
lowed by the defendant. Thus, in effect, the court ana-
lyzed duty as a question of negligence per se under
these two groups of statutes and regulations.7
‘‘Negligence per se . . . serves to superimpose a leg-
islatively prescribed standard of care on the general
standard of care. . . . A violation of the statute or regu-
lation thus establishes a breach of duty when (1) the
plaintiff is within the class of persons intended to be
protected by the statute, and (2) the injury is the type
of harm that the statute was intended to prevent. . . .
Although the plaintiff still must demonstrate the
remaining elements of negligence, the jury in a negli-
gence per se case need not decide whether the defen-
dant acted as an ordinarily prudent person would have
acted under the circumstances. [It] merely decide[s]
whether the relevant statute or regulation has been
violated. If it has, the defendant was negligent as a
matter of law.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) Duncan v. Mill Man-
agement Co. of Greenwich, Inc., 308 Conn. 1, 24–25,
60 A.3d 222 (2013).
‘‘Generally, our courts have treated a statutory viola-
tion as negligence per se in situations in which the
statutes or city ordinances at issue have been enacted
for the purpose of ensuring the health and safety of
members of the general public.’’ (Internal quotation
marks omitted.) Shukis v. Board of Education, 122
Conn. App. 555, 580, 1 A.3d 137 (2010). Our Supreme
Court has held on prior occasions that legislative enact-
ments that contain criminal penalties could qualify as
the statutory predicate for negligence per se claims.
See Panaroni v. Johnson, 158 Conn. 92, 100–102, 256
A.2d 246 (1969) (criminal penalty for violation of ordi-
nance); Munroe v. Hartford Street Railway Co., 76
Conn. 201, 204, 56 A. 498 (1903) (violation of ordinance
misdemeanor punishable by fine).
‘‘[I]n determining whether a duty of care is owed
to a specific individual under a statute, the threshold
inquiry . . . is whether the individual is in the class of
persons protected by the statute.’’ Ward v. Greene, 267
Conn. 539, 548, 839 A.2d 1259 (2004). ’’In determining
the class of persons protected by a statute, we do not
rely solely on the statute’s broad policy statement.
Rather, we review the statutory scheme in its entirety,
including the design of the scheme as enacted.’’ (Inter-
nal quotation marks omitted.) Id., 551.8
Turning first to the licensure requirements, General
Statutes § 20-330 et seq., our Supreme Court has stated
that ‘‘a primary purpose of the licensure requirement,
in addition to establishing a uniform, statewide system
of licensing, is to protect the public health and safety.’’
Hartford Hospital v. Dept. of Consumer Protection, 243
Conn. 709, 719–20, 707 A.2d 713 (1998). In a dissenting
opinion, Justice Berdon similarly stated that ‘‘[t]he pri-
mary purpose of the licensing requirement . . . was to
protect the general consuming public from unqualified
and/or unscrupulous contractors.’’ Id., 726. Discussing
the legislative history, he quoted one industry profes-
sional, who said that ‘‘the purpose of [General Statutes
§ 20-334] is to protect the public and maintain certain
minimum standards in competence to the public.’’
(Emphasis added; internal quotation marks omitted.)
Id., 726, quoting Conn. Joint Standing Committee Hear-
ings, General Law, Pt. 3, 1965 Sess., pp. 1138–39.
Pursuant to § 20-334 (a), no person is allowed to
perform any work covered in chapter 393 of the General
Statutes unless they (1) possess a license in the covered
occupation or work, or (2) have appropriately regis-
tered as an apprentice and are subject to the regulations
governing that training. One such broad category requir-
ing a license or permit is heating, piping, and cooling
work.9 General Statutes § 20-330 (5); see also Regs.,
Conn. State Agencies § 20-332-5. The requirement that
a contractor working in this field must be appropriately
credentialed is intended to ensure that the person per-
forming the work has the requisite skill and knowledge
within the trade, or is at the very least supervised by
an individual with that skill and knowledge. See General
Statutes §§ 20-333 and 20-334 (a).10
Persons engaging in work without having the neces-
sary license pursuant to these provisions of the General
Statutes may be subject to both criminal and civil conse-
quences. As recognized by the court, wilfully engaging
in work covered by chapter 393 without the necessary
license or permit is a class B misdemeanor. General
Statutes § 20-341 (a). Other subsections provide civil
consequences by authorizing the appropriate board or
the Commissioner of Consumer Protection to impose
penalties on unlicensed individuals engaging in work
that requires a license under chapter 393; see General
Statutes § 20-341 (b); and by making violations of the
provisions of this chapter a basis for a claim pursuant
to the Connecticut Unfair Trade Practices Act.11 See
General Statutes § 20-341 (d).
Finally, we note that the legislature explicitly has
defined circumstances where a license would not be
required to engage in otherwise covered work; see, e.g.,
General Statutes § 20-340; and our Supreme Court has
construed the exceptions strictly. See Hartford Hospi-
tal v. Dept. of Consumer Protection, supra, 243 Conn.
720. It is axiomatic that parties are presumed to know
the law. Provident Bank v. Lewitt, 84 Conn. App. 204,
209, 852 A.2d 852, cert. denied, 271 Conn. 924, 859 A.2d
580 (2004). The activities of the defendant and his son
do not fall within any of the exceptions to the licensure
requirement, and, therefore, the owner of the home,
whether the insured or the occupant, was within the
class of persons intended to be protected by the licen-
sure requirement.12
With respect to the type of harm covered by this
statutory scheme, our Supreme Court has noted these
requirements are intended to ensure an appropriate
level of competence by individuals in the provision of
certain services to the public. See Hartford Hospital
v. Dept. of Consumer Protection, supra, 243 Conn. 720
(because nature of plumbing work in hospital is ‘‘critical
to health and safety of patients’’ and because of greater
public safety risks from faulty plumbing in entities pro-
viding services to the public, ‘‘it is likely that the legisla-
ture intended those performing such work to meet the
highest professional standards’’); see also id., 726 (Ber-
don, J., dissenting) (statement in legislative history
quoted by dissent that purpose of licensure statute is
to maintain minimum standards of competence for pub-
lic). The statutory focus on ensuring appropriate com-
petence is unsurprising, as there is a foreseeable risk
of harm to people and property from the improper
installation, maintenance, or operation of many of the
appliances involved in occupations and work covered
by chapter 393. Cf. State v. Salz, 226 Conn. 20, 33–38,
627 A.2d 862 (1993) (affirming manslaughter conviction
of electrician, whose wiring of neighbor’s electric
heater in violation of code provisions and failure to
ensure necessary inspections resulted in fire and neigh-
bor’s death); Reciprocal Exchange v. Altherm, Inc., 142
Conn. 545, 549–53, 115 A.2d 460 (1955) (affirming liabil-
ity for servicers’ negligent failure to determine cause of
malfunctioning oil burner or warn owner to discontinue
use of burner, which was factor in explosion); Beauvais
v. Springfield Institute for Savings, 303 Mass. 136, 142,
20 N.E.2d 957 (1939) (improper installation of oil burner
in commercial building resulted in explosion, which
caused tenant’s death); Executive Board of Missouri
Baptist General Assn. v. Campbell, 275 S.W.2d 388, 392
(Mo. App. 1955) (failure to properly adjust electrodes
in furnace burner resulted in explosion). Pursuant to
the regulatory scheme adopted in Connecticut for heat-
ing and cooling licenses, a license seeker must demon-
strate that he both has the necessary experience and
training to qualify for the license that he seeks and
possesses a baseline proficiency of knowledge through
the examination itself. See footnote 11 of this opinion.
Thus, a fire resulting from the improper installation of a
heating apparatus by a statutorily unqualified individual
would be one such harm that the licensing statutes
were intended to prevent. Cf. Hartford Hospital v. Dept.
of Consumer Protection, supra, 719.13
Second, the court found that standards 31 and 211,
which have been incorporated into our state law,14 spec-
ified the manner in which a chimney connector must
be secured; a secure connection was required by these
standards and the manufacturer’s instructions; and the
chimney connector was required to be clamped and
cemented in place, but was not secured as required.
Pursuant to the applicable regulations governing the
installation of oil burners and provisions of our building
code, a chimney connector must be firmly cemented
to the masonry unless a thimble is used.15 There was
testimony at trial, however, that the preexisting con-
crete ring was not a thimble of the type required by
standard 31,16 and the defendant conceded at argument
before this court that the installed pipe was not
strapped, cemented, or secured as required by the appli-
cable regulations. Thus, the defendant owed, and by
his own concession breached, a duty pursuant to these
regulations, regardless of his role in the process. See
Buravski v. DiMeola, 141 Conn. 726, 728–29, 109 A.2d
867 (1954) (‘‘It is, of course, the rule that when a person
violates a statute or an ordinance enacted for the protec-
tion of the public, he is guilty of negligence as a matter
of law. . . . This rule applies even though the person
is ignorant of the existence of the statute or ordinance.
He is chargeable with knowledge on the theory that
ignorance of the law excuses no one.’’ [Citation
omitted.]).
The defendant has presented no case law in support
of his position that the injury was not foreseeable
because he was acting merely as a laborer, rather than
as a trained boiler installer. We reject his reliance on
this position for several reasons. To begin, the court
determined that the defendant’s duty to the plaintiff’s
insured arose primarily under legislative enactments,
not pursuant to the common-law duty to exercise due
care. Any subsequent foreseeability analysis concerning
the duty owed by the defendant under the statutory
scheme, therefore, would focus on the party injured
and the harm suffered; see Ward v. Greene, supra, 267
Conn. 555; and a defendant can be held liable even
without actual knowledge that his actions violated any
statute. See Commercial Union Ins. Co. v. Frank Per-
rotti & Sons, Inc., 20 Conn. App. 253, 260, 566 A.2d 431
(1989) (defendant’s argument that it was unaware that
combustible liquid was in trash irrelevant when ordi-
nance required it to separate out combustible
materials).17
Further, we note that not all injuries that potentially
might occur during the performance of work requiring
an occupational license are outside the realm of ordi-
nary knowledge and experience. See Utica Mutual Ins.
Co. v. Precision Mechanical Services, Inc., 122 Conn.
App. 448, 456, 998 A.2d 1228 (expert testimony not
necessary to demonstrate failure of licensed plumber
to use reasonable care ‘‘in operating plumber’s torch
in vicinity of combustible materials’’), cert. denied, 298
Conn. 926, 5 A.3d 487 (2010). Thus, even if we were
to rely on the common-law test for determining the
foreseeability of an injury,18 we would conclude that
the injury in this case was foreseeable. The defendant
testified at trial that he knew that products such as the
boiler frequently come with instruction manuals and
that he was aware of the building codes and how to
find out what those codes require.19 If he had consulted
either the instruction manual for the boiler or a building
inspector, as he has done in the past when he had
questions about the applicable codes, he would have
been aware that the chimney connector here should
have been cemented or otherwise secured into the flue.
Additionally, specialized knowledge and training are
not required to know that the general purpose of a flue
or chimney is to carry heated gases away from a heat-
generating source. See, e.g., Random House Webster’s
Unabridged Dictionary (2d Ed. 2001) (defining chimney
as ‘‘a structure . . . containing a passage or flue by
which the smoke, gases, etc., of a fire or furnace are
carried off’’). Indeed, the defendant testified that he did
not need any instructions from his son to know that
the chimney connector must be secured as much as
possible. Because it is within the understanding of an
ordinary person that improperly installing the chimney
connector for an oil burner could lead to a fire, the
court reasonably could have found that the risk of fire
arising from an improperly secured chimney connector
either was, or at the very least should have been, fore-
seeable to the defendant.20 See Ruiz v. Victory Proper-
ties, LLC, 315 Conn. 320, 335, 107 A.3d 381 (2015) (‘‘[as]
long as harm of the general nature as that which
occurred is foreseeable there is a basis for liability even
though the manner in which the accident happens is
unusual, bizarre or unforeseeable’’ [internal quotation
marks omitted]); see also Doe v. Hartford Roman Cath-
olic Diocesan Corp., supra, 317 Conn. 373–74.21
II
The defendant also claims that the court erred in
determining that the defendant ‘‘installed a boiler’’ and
was equally at fault with his son. We disagree.
‘‘[Q]uestions of fact are subject to the clearly errone-
ous standard of review. . . . A finding of fact is clearly
erroneous when there is no evidence in the record to
support it . . . or when although there is evidence to
support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed. . . . Because it is the trial
court’s function to weigh the evidence and determine
credibility, we give great deference to its findings. . . .
In reviewing factual findings, [w]e do not examine the
record to determine whether the [court] could have
reached a conclusion other than the one reached. . . .
Instead, we make every reasonable presumption . . .
in favor of the trial court’s ruling.’’ (Internal quotation
marks omitted.) Burns v. Adler, 158 Conn. App. 766,
802, 120 A.3d 555, certs. granted, 319 Conn. 931–32, 125
A.3d 205, 206 (2015).
In its memorandum of decision, the court presented
the following account of the actions of the defendant
and his son while installing the boiler: ‘‘The defendants
worked nine hours together in the Loria residence on
November 2nd or 3rd. They removed the old boiler and
[chimney connector] and installed a new boiler and
[chimney connector]. [The defendant] cut pipes and
held them in place while his son soldered them together.
Both worked on installing the [chimney connector].
[The defendant] connected the end of the metal pipe to
the chimney, but did not cement it in place or otherwise
fasten it to the chimney. He merely pounded it in place
with a wood board. He did not read the manufacturer’s
instruction booklet or check with a building inspector.
His son turned on the oil-fired boiler, but did not make
any adjustments to the burner motor as required by the
manufacturer.’’ It then found that ‘‘the fire was proxi-
mately caused by [the defendant and his son’s] careless
and improper installation of the boiler and [chimney
connector],’’ and that they were equally at fault.
The defendant argues that the court erred in charac-
terizing his participation and responsibility as equiva-
lent to that of his son. The defendant notes that the court
made no specific finding that the defendant’s manner of
inserting the pipe into the chimney was negligent, but
‘‘simply treat[ed] [the defendant] as having undertaken
to install the boiler along with his son, and charge[d]
[the defendant] with negligence in the overall improper
installation of the boiler—the entire job. That conclu-
sion is flawed, however, [insofar as it is based on the
arguments that the defendant’s] status with respect to
the job was as a laborer’’ and ‘‘it was the responsibility
of [the defendant’s son] to ensure that the new boiler
and all appurtenances were installed correctly.’’ In mak-
ing this argument, the defendant has alleged facts that
the court did not find.
Although relying on certain facts throughout his brief
that the court did not adopt in its memorandum of
decision, the defendant points to no separate error in
the court’s findings beyond this particular characteriza-
tion and presents no independent argument beyond his
conclusory position that the role of his son before and
during the installation of the boiler somehow neutral-
izes his own responsibility to act in compliance with
the applicable statutory provisions and in exercise of
due care. Further, the court’s recitation of the work
completed by the defendant and his son was an accu-
rate, if truncated, recitation of the defendant’s and his
son’s testimony at trial about their actions at the prop-
erty in late 2011. Although the court did not discuss in
detail the evidence showing that the defendant’s son
arranged many of the project’s details prior to the day
of the actual installation, both the defendant and his
son presented similar accounts of their work at the
property and used terms suggestive of joint efforts to
describe their labor.22 With respect to the installation
of the chimney connector itself, it is undisputed that
the defendant was responsible for preparing most of
the piping for the chimney connector, reinstalled the
end of the chimney connector into the flue, and held
the pipes while his son affixed them to one another.
The defendant’s son testified that he was not actively
supervising the defendant’s work in this respect,23 and
the defendant testified that he did not need any direc-
tion to reinstall the chimney connector or to know that
he had to make the connection as secure as possible.
We also note that the court explicitly found that it was
the defendant, not his son, who inserted the chimney
connector into the masonry and failed to properly affix
it, and the defendant does not challenge this finding
of fact.
Further, expert testimony offered at trial stated that
the fire was caused by the improper adjustment of the
boiler following its initial ignition by the defendant’s son
and the failure of the defendant to secure the chimney
connector into the flue properly. These experts also
testified, however, that the failure to secure the chimney
connector properly into the chimney was primarily
responsible for the fire or, at the very least, that the
fire would have been significantly less likely to occur,
even with the improper adjustment of the boiler set-
tings, if the connector had been secured properly. Thus,
despite the defendant’s reliance on certain assertions
and testimony presented at trial that were not adopted
by the court or challenged on appeal, it was not clearly
erroneous for the court to characterize the defendant’s
labors or responsibility for the resulting fire as equiva-
lent to that of his son.
In summation, the defendant engaged in specialized
work that he knew or should have known required a
professional license that he did not possess. The defen-
dant failed to take necessary precautions when doing
this specialized work that required a licensed profes-
sional and failed to install the chimney connector in
accordance with applicable law and regulations.
Accordingly, the defendant failed to exercise due care
when undertaking this specialized endeavor. Because
the risk of a fire was both within the contemplation of
the applicable statutes and regulations of which the
defendant was in violation, and the damages sustained
were a foreseeable result of the improper installation
of the chimney connector to the oil-fired boiler, the
defendant’s arguments that he did not owe a duty to
the plaintiff’s insured are without merit.
The judgment is affirmed.
In this opinion the other judges concurred.
* The listing of judges reflects their seniority status on this court as of
the date of oral argument.
1
Because Bruce Fern, Jr., is not a participant in this appeal, hereafter we
will refer to Bruce Fern, Sr., as the defendant in this opinion.
2
Specifically, the court described their experience as follows: ‘‘[The defen-
dant] and [his son] have limited experience in installing boilers. Thirty years
ago, [the defendant] helped a friend install a boiler. A long time ago, [the
defendant’s son] installed two boilers.’’
3
Neither the occupant nor the children were home at the time of the fire
or for almost twenty-four hours prior to the fire.
4
The defendant’s son testified that an adapter, or reducing collar, is the
conical piece of metal that connected the pipe from the boiler to the flue.
5
Evan Haynes, a licensed mechanical engineer who assisted in the investi-
gation, determined that one of two causes likely resulted in the chimney
connector becoming disconnected: ‘‘[The chimney connector] could simply
just fall out through vibration or use. It also could fall out because of delayed
ignition scenarios where, because the boiler is not running properly and is
not set up properly, you could have delayed ignition of oil creating a puff
that could push [the connector] out.’’
6
For instance, despite his general contention that he owed no duty, the
defendant asserts in his brief that ‘‘it would appear to be against public
policy to hold a gratuitous helper to the same standard of care as a skilled
tradesman.’’ Indeed, at oral argument before this court, the defendant stated
that part of his argument concerned the applicable standard of care for any
duty that he might have owed in this case.
7
Depending on the particular statute, however, a statutory violation might
not constitute negligence per se, but could establish a prima facie case of
negligence or could provide evidence of negligence. See Ward v. Greene,
267 Conn. 539, 548, 839 A.2d 1259 (2004).
8
This potential class of persons may be quite broad. See Wright v. Brown,
167 Conn. 464, 469, 356 A.2d 176 (1975) (with respect to quarantine provisions
of General Statutes § 22-358, ‘‘the class of persons protected is not limited;
rather the statute was intended to protect the general public or, as stated
by the trial court, members of the community’’ [internal quotation marks
omitted]).
9
General Statutes § 20-330 (5) defines ‘‘heating, piping and cooling work’’
as ‘‘(A) the installation, repair, replacement, maintenance or alteration of
any apparatus for piping, appliances, devices or accessories for heating
systems, including sheet metal work, (B) the installation, repair, replace-
ment, maintenance or alteration of air conditioning and refrigeration sys-
tems, boilers, including apparatus and piping for the generation or
conveyance of steam and associated pumping equipment and process piping
and the installation of tubing and piping mains and branch lines up to
and including the closest valve to a machine or equipment used in the
manufacturing process, but excluding millwright work, and (C) on-site oper-
ation, by manipulating, adjusting or controlling, with sufficient technical
knowledge, as determined by the commissioner, (i) heating systems with a
steam or water boiler maximum operating pressure of fifteen pounds per
square inch gauge or greater, or (ii) air conditioning or refrigeration systems
with an aggregate of more than fifty horsepower or kilowatt equivalency of
fifty horsepower or of two hundred pounds of refrigerant. . . .’’
10
This purpose is more apparent from the regulations defining the particu-
lar licenses that may be issued by the Heating, Piping, Cooling, and Sheet
Metal Work Board. See Regs., Conn. State Agencies § 20-332-5. Each of these
licenses contain explicit limitations on who is able to acquire that license
by defining the necessary training or experience required; see id., § 20-332-
5 (a) (examination for unlimited heating-cooling contractor’s license only
available after ‘‘two (2) years as an unlimited licensed journeyperson or
equivalent experience and training’’); or by limiting the type of projects on
which, or the manner in which, the holder may work. See id., § 20-332-5 (g)
(limited heating contractor license allowed to work only on ‘‘hot water or
steam heating systems for buildings not over three stories high with a total
heating load not exceeding 500,000 BTU’s and steam pressure not exceeding
fifteen pounds’’ as well as related gas systems and ‘‘oil burners handling
up to five gallons per hour’’); see also id., § 20-332-5 (j) (limited heating
journeyperson may install, service, and repair gas or oil fired burners ‘‘only
while in the employ of a contractor licensed for such work’’). To acquire a
license, an individual must score at least 70 percent on the examination.
Id., §§ 20-332-10a and 20-332-11a.
11
General Statutes § 42-110b (a) provides: ‘‘No person shall engage in
unfair methods of competition and unfair or deceptive acts or practices in
the conduct of any trade or commerce.’’ A cause of action may be brought
by ‘‘[a]ny person who suffers any ascertainable loss of money or property,
real or personal, as a result of the use or employment of a method, act or
practice prohibited by section 42-110b.’’ General Statutes § 42-110g (a).
12
The attempt by the defendant to analogize his situation to that of a
neighbor assisting a homeowner in installing a boiler in the latter’s home
is not persuasive: unlike the actions of the defendant and his son here, the
homeowner’s actions in the hypothetical at the very least could fall within
an explicit exception to the licensure requirement. See General Statutes
§ 20-340 (11) (‘‘[t]he provisions of this chapter shall not apply to . . . per-
sons engaged in the installation, maintenance, repair and service of glass
or electrical, plumbing, fire protection sprinkler systems, solar, heating,
piping, cooling and sheet metal equipment in and about single-family resi-
dences owned and occupied or to be occupied by such persons; provided
any such installation, maintenance and repair shall be subject to inspection
and approval by the building official of the municipality in which such
residence is located and shall conform to the requirements of the State
Building Code’’).
13
In response to the questions of this court during oral argument, the
defendant asserted that the purpose of the licensure statute was to protect
the public from unscrupulous contractors. While true, it is not, however,
the only purpose. See Hartford Hospital v. Dept. of Consumer Protection,
supra, 243 Conn. 719–20. Additionally, the defendant has not asserted on
appeal that the failure to have the necessary occupational license is not a
ground to assert a negligence per se claim because the failure to have that
license was not the proximate cause of the fire.
14
The court stated that standards 31 and 211 were part of our state’s fire
code. It did not explain, however, which portions of the fire code incorpo-
rated these standards.
We note that the provisions of our state fire safety code and our state
fire prevention code generally do not apply to private single-family dwellings
such as the property; see General Statutes § 29-292 (a) (1); Regs., Conn.
State Agencies §§ 29-291a-1a (d) and 29-292-1e (b); and did not apply under
the statutes and regulations in effect in 2011. See General Statutes (Rev. to
2011) § 29-292 (a); Regs., Conn. State Agencies (Rev. to 2011) §§ 29-291a-1
(d) (repealed May 7, 2015) and 29-292-1e (b) (amended effective October 2,
2012). Other applicable statutes and regulations, however, contain materially
similar requirements; see footnote 16 of this opinion; and the defendant has
not challenged the court’s judgment on these grounds. See footnote 17 of
this opinion.
15
Standard 31 provides in relevant part: ‘‘The chimney connector shall
extend through a chimney wall to the inner face or liner but not beyond,
and shall be firmly cemented to masonry. A thimble shall be permitted to
be used to facilitate removal of the chimney connector for cleaning, in
which case the thimble shall be permanently cemented in place with high-
temperature cement.’’ National Fire Protection Assn., NFPA 31: Standard
for the Installation of Oil-Burning Equipment (1992 Ed.) § 1-7.2.4, p. 31-12.
Under the regulations in effect in 2011, this standard was incorporated by
reference as our state’s regulations on the installation and operation of oil
burning equipment; see Regs., Conn. State Agencies (Rev. to 2011) § 29-317-
3a (a) (repealed May 7, 2015); and private residential dwellings are not
excepted. See General Statutes (Rev. to 2011) § 29-317 (a) and (b); Regs.,
Conn. State Agencies (Rev. to 2011) § 29-317-1a (b) and (d) (repealed May
7, 2015). (Pursuant to amendments ultimately effective January 1, 2013,
however; see Public Acts 2010, No. 10-54, §§ 1 and 6; Public Acts 2009,
No. 09-177, § 7; regulations adopted pursuant to this authority are now
incorporated into the state fire prevention code. See General Statutes § 29-
317 [a].) Additionally, § 1805.2 of the 2003 International Code for One- and
Two-Family Dwellings portion of the 2005 State Building Code provides in
relevant part: ‘‘A connector entering a masonry chimney shall extend
through, but not beyond the wall and shall be flush with the inner face of
the liner. Connectors, or thimbles where used, shall be firmly cemented
into the masonry.’’
16
The expert relied on standard 211 to address whether the concrete ring
was a ‘‘thimble’’ as that term is used in standard 31. Standard 211 provides
in relevant part: ‘‘Thimbles for chimneys or vent connectors shall be fireclay
. . . galvanized steel of minimum thickness of 24 ga[u]ge, or material of
equivalent durability. Thimbles shall be installed without damage to the
liner. The thimble shall extend through the wall to, but not beyond, the
inner face of the liner and shall be firmly cemented to masonry.’’ National
Fire Protection Assn., NFPA 211: Standard for Chimneys, Fireplaces, Vents,
and Solid Fuel-Burning Appliances (1992 Ed.) § 3-1.8.1, p. 211-18. Thus,
because the clay ring was only two inches long and did not extend to the
vertical flue, the expert explained, it was not a ‘‘thimble’’ as that term is
used in standard 31. The defendant has not asserted on appeal that either
the court’s reliance on this testimony or its application of the law was in error.
17
‘‘In cases involving the doctrine of negligence per se . . . the defendant
ordinarily may avoid liability upon proof of a valid excuse or justification.’’
Gore v. People’s Savings Bank, 235 Conn. 360, 376, 665 A.2d 1341 (1995),
quoting 2 Restatement (Second), Torts § 288A (1965). The defendant, on
appeal, has focused primarily on whether a duty existed and has not provided
any separate argument that his failure to abide by either the licensure
requirements or state building code was excused or justified.
18
‘‘[O]ur threshold inquiry has always been whether the specific harm
alleged by the plaintiff was foreseeable to the defendant. . . . By that is
not meant that one charged with negligence must be found actually to have
foreseen the probability of harm or that the particular injury which resulted
was foreseeable, but the test is, would the ordinary [person] in the defen-
dant’s position, knowing what he knew or should have known, anticipate
that harm of the general nature of that suffered was likely to result? . . .
The idea of risk in this context necessarily involves a recognizable danger,
based upon some knowledge of the existing facts, and some reasonable
belief that harm may possibly follow. . . . Accordingly, the 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 plaintiff] to probable injury unless preventive measures were
taken.’’ (Internal quotation marks omitted.) Doe v. Hartford Roman Catholic
Diocesan Corp., supra, 317 Conn. 373–74.
19
We also note that the defendant has worked as a registered home
improvement contractor for several decades.
20
Even if the court premised the defendant’s liability on his breach of a
common-law duty to exercise reasonable care, the court would be permitted
to rely on standards 31 and 211. To the extent that the defendant and his
son were required to, and did, abide by these standards or similar statutes
and regulations, compliance alone does not preclude liability for negligence.
See Allison v. Manetta, 284 Conn. 389, 403, 933 A.2d 1197 (2007) (‘‘[w]hile
violation of a statute is negligence, compliance with a statute is not necessar-
ily due care’’ [internal quotation marks omitted]); see also Josephson v.
Meyers, 180 Conn. 302, 307–308, 429 A.2d 877 (1980) (duty of care satisfied
by complying with statute ‘‘where the facts are similar to those contemplated
by the statute and no special or unusual circumstances or dangers are
present’’). Alternatively, a court can consider a party’s failure to abide by
even technically inapplicable statutes as evidence of negligence. See Consid-
ine v. Waterbury, 279 Conn. 830, 860–69, 905 A.2d 70 (2006) (failure to abide
by building code provisions that were technically inapplicable to property
because they were adopted after construction nonetheless may constitute
evidence of failure to exercise due care).
21
The defendant also argues that public policy is against recognizing that
he owed a duty in this case because ‘‘it would appear to be against public
policy to hold a gratuitous helper to the same standard of care as a skilled
tradesman.’’ He has offered no law or analysis in support of this contention,
however, and we will not consider it. See Zappola v. Zappola, 159 Conn.
App. 84, 86–87, 122 A.3d 267 (2015).
22
For instance, the defendant provided the following summary of his and
his son’s work: ‘‘We went there in the morning and disconnected the furnace
and moved it out. And then they brought a new furnace. We moved it in.
Got it repiped.’’ His son described their labors similarly.
23
Although the defendant testified that his position was wholly subservient
to his son’s directions, both with respect to the general project and with
respect to the particular act of constructing and installing the chimney
connector, the court was not required to credit this testimony. See Burns
v. Adler, supra, 158 Conn. App. 802.