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    SUSAN DAVIES v. GENERAL TOURS, INC.
    (AC 20028)
    Foti, Schaller and Stoughton, Js.
    Argued January 10
    officially released April 24, 2001

      Ian Angus Cole, for the appellant (plaintiff).

      Julie A. Harris, for the appellee (defendant).
   Opinion

FOTI, J. The plaintiff, Susan Davies, appeals from the trial court’s judgment granting the motion for summary judgment in favor of the defendant, General Tours, Inc. On appeal, the plaintiff claims that the court improperly (1) concluded that the defendant did not owe a duty to her to warn her of dangers it knew, or should have known, existed when traveling on certain tour buses, (2) concluded that the defendant could not be liable for any acts or omissions of another tour agency, despite having made representations that it was its “partner agency,” (3) concluded that the representations and assurances of care the defendant made to the plaintiff were not warranties, and (4) relied on statements in an affidavit that the defendant submitted in support of its motion that could not have been made on the affiant’s personal knowledge. We affirm the judgment of the trial court.

The following facts and procedural history are necessary to our resolution of the issues presented in this appeal. The plaintiff alleged the following facts in her complaint. The plaintiff booked a sight-seeing tour of Morocco with the defendant tour operator in January, 1995. The defendant arranged for air and overland transportation, hotel accommodations, guides and tours of cities, and arranged the plaintiffs touring schedule. The defendant both implicitly and explicitly represented that it would provide her with safe accommodations and transportation during her trip. The defendant also “employed a tour manager to escort the plaintiff and others on the tour to ‘assure a safe and comfortable trip.’ ” The plaintiff further alleged that the defendant conducted its tours in Morocco through a partnership or joint venture with Recep Tours (Recep), a Moroccan travel agency.

The plaintiff further alleged that the tour guide, baggage handler and bus driver that served her upon her arrival in Morocco and prior to the events giving rise to this action were employees of Recep, acting within the scope of their employment as agents or employees of the defendant in Morocco. The plaintiff claimed that she did not know of the dangers inherent in bus travel on Moroccan highways and that the defendant had a duty to warn her of any inherent dangers connected with such travel. During her touring activities in Morocco, the driver of the bus carrying the plaintiff and other members of her tour group stopped alongside a highway so that passengers could disembark to observe camels wandering about the desert. As the plaintiff stepped from the tour bus to the ground, she slipped, hit the ground and broke her ankle. The plaintiff alleged that the defendant’s negligence caused her injuries.

The defendant thereafter filed a motion for summary judgment. It argued that it was entitled to judgment in its favor as a matter of law because no genuine issues of material fact existed. Specifically, the defendant argued that it did not own the bus from which the plaintiff fell, it did not employ any of the tour personnel that served the plaintiff in Morocco and did not possess knowledge of the existence of the dangerous condition that the plaintiff alleged caused her to fall. The defendant also argued that it could not be held vicariously hable for any alleged acts or omissions of the tour personnel in Morocco because it did not employ any of those individuals and was not engaged in either a joint venture or partnership with Recep. The defendant also argued that it did not guarantee the plaintiffs safety, the quality of services rendered to her by independent contractors in Morocco or her well-being during the duration of her trip.

The court agreed with the defendant and concluded, on the basis of the affidavits and other evidence properly before it, that no genuine issues of material fact existed that precluded judgment for the defendant. On the basis of the evidence before it, the court concluded that the defendant was not engaged in a partnership or a joint venture with Recep. The court also concluded that the defendant’s representations concerning its relationship with Recep did not establish a partnership under the partnership by estoppel theory advanced by the plaintiff, and that the plaintiff failed, as a matter of law, to demonstrate that the defendant owed her a duty to warn her of any danger connected to bus travel in Morocco or that the language in the defendant’s travel brochure constituted a warranty that the plaintiff would enjoy a safe or negligence-free trip. The court also concluded that the defendant had expressly disclaimed its liability for any acts beyond its control by third parties.

“The standards governing our review of a trial court’s decision to grant a motion for summary judgment are well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Id., 745. The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book [§ 17-46], . . . Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105, 639 A.2d 507 (1994).” (Internal quotation marks omitted.) Raynor v. Hickcock Realty Corp., 61 Conn. App. 234, 236, 763 A.2d 54 (2000).

“ ‘On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). Because the trial court rendered judgment for the [defendant] as a matter of law, our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . . Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995).’ ” Kroll v. Steere, 60 Conn. App. 376, 380-81, 759 A.2d 541, cert. denied, 255 Conn. 909, 763 A.2d 1035 (2000).

I

The plaintiff first claims that the court improperly determined that the defendant did not owe her a duty to warn her of dangers of which it knew, or should have known, concerning travel on Moroccan tour buses. We disagree.

The plaintiff alleged that “the defendant owed a duty to the plaintiff to disclose reasonably obtainable information concerning the safety of surface transportation it provided or contracted to provide in Morocco.” The plaintiff further alleged that the plaintiff did not know of the dangers inherent in bus travel in Morocco and that the defendant “had a duty to warn the plaintiff of dangers inherent in alighting from the tour buses it owned, operated or contracted for during the tour.” The plaintiff filed an affidavit along with her opposition to the defendant’s motion for summary judgment and averred that she had not been warned that it was unsafe to step down from the tour bus unassisted and that, when she tried to step down, her foot slid out from under her in loose sand.

The court concluded, as a matter of law, that the plaintiff failed to establish a factual basis on which the defendant could be held liable for her injuries under a failure to warn theory. The court noted that “the plaintiff has neither alleged nor shown facts showing that the defendant was . . . even remotely aware of the unfriendly sand conditions in Morocco.”

This issue requires us to consider whether the defendant tour operator had a duty to warn the plaintiff of the condition she encountered when alighting from the tour bus in Morocco. “Negligence occurs where one under a duty to exercise a certain degree of care to avoid injury to others fails to do so.” Dean v. Hershowitz, 119 Conn. 398, 407-408, 177 A. 262 (1935). It is well settled that to state a cause of action for negligence, a plaintiff must establish “duty; breach of that duty; causation; and actual injury.” RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). “The existence of a duty is a question of law, and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation. Petriello v. Kalman, 215 Conn. 377, 382-83, 576 A.2d 474 (1990).” Leavenworth v. Mathes, 38 Conn. App. 476, 479, 661 A.2d 632 (1995). Determining the extent of a tour operator’s duty to warn tourists of dangerous conditions is an issue of first impression in Connecticut. We find illuminating, therefore, the opinions of federal courts that have considered that issue. See Stratford v. International Assn. of Firefighters, AFL-CIO, Local 998, 248 Conn. 108, 118, 728 A.2d 1063 (1999).

“[C]ourts have usually found that there never existed a relationship which would have given rise to a duty on the part of the travel agent to investigate the safety or instrumentalities over which it had no control or knowledge.” McAleer v. Smith, 860 F. Sup. 924, 931 (D.R.I. 1994). “Courts in other jurisdictions have also concluded that there is no general duty on the part of a tour operator to warn tourists as to general safety precautions.” Sova v. Apple Vacations, 984 F. Sup. 1136, 1141 (S.D. Ohio 1997).

“Courts have further noted that there is no duty on the part of a tour operator to warn a tour participant of obvious and apparent dangers.” Id. “[A] tour operator may be obligated, under some circumstances, to warn a traveler of a dangerous condition unknown to the traveler but known to it ... . This doctrine of law applies to situations where a tour operator is aware of a dangerous condition not readily discoverable by the plaintiff. It simply does not apply to an obvious dangerous condition equally observable by [a plaintiff and a tour operator].” Passero v. DHC Hotels & Resorts, Inc., 981 F. Sup. 742, 744 (D. Conn. 1996).

The plaintiff in Passero purchased through her travel agent a tour package for a vacation in Aruba from the defendant tour operator. Id., 743. While at her hotel in Aruba, the plaintiff sustained injuries after tripping over a flotation mat that was near her chair beside the hotel pool. Id. The United States District Court for the District of Connecticut granted the defendant tour operator’s motion for summary judgment, concluding that the tour operator was not bound by a duty to warn the plaintiff of the presence of the flotation device located near her chair in “broad daylight.” Id., 744. The plaintiff did not persuade the District Court that she should be given an opportunity to determine whether the defendant tour operator had notice of that dangerous condition. Id.; accord Stafford v. Intrav, Inc., 841 F. Sup. 284, 287-88 (E.D. Mo. 1993), aff'd, 16 F.3d 1228 (8th Cir. 1994).

A plaintiff must demonstrate that the defendant knew that a danger existed before the duty to warn is implicated. The plaintiff in the present case has not done so. See Wilson v. American Trans Air, Inc., 874 F.2d 386, 391 (7th Cir. 1989) (absent showing that defendant charter tour operator knew there were safety issues at local hotel, defendant could not be held liable for assault on member of tour group under duty to warn theory of recovery); cf. Miller v. Group Voyagers, Inc., 912 F. Sup. 164,166 (E.D. Pa. 1996) (defendant’s motion to dismiss denied where plaintiff tour group members alleged defendant tour group operator had knowledge of unsuitable, dangerous hotel conditions). The plaintiff has failed to present evidence sufficient to establish the existence of a genuine issue of material fact that the defendant was aware of any particular risk inherent in travel on the tour buses used in Morocco or in the practice of stepping off of those buses onto uncertain roadside terrain.

To the extent that the plaintiff claims that the defendant should have warned her about dangerous terrain at the exact location her tour bus in Morocco stopped, we agree with the court’s conclusion that the plaintiff has not demonstrated that the defendant was even remotely aware of those site specific conditions. In fact, the defendant’s vice president of group services, Thomas Flynn, attested in his affidavit that the defendant “had no prior knowledge of precisely where the bus on which the plaintiff was a passenger would stop, nor of the condition of the soil where the bus would stop, nor of the height of the step from the ground where the bus stopped on the date in question. To our knowledge this was a nonscheduled stop.” The plaintiff has not demonstrated a genuine issue of material fact concerning the defendant’s knowledge. This also is a case in which the plaintiff “was in a far better situation to assess the situation than [the defendant who] had no duty to warn her of a danger she could have observed but about which [the defendant] knew nothing.” Hon-eycutt v. Tour Carriage, Inc., 997 F. Sup. 694, 699 (W.D.N.C. 1996).

To the extent the plaintiff alleges on the basis of the defendant’s representations in its tour brochure that the defendant was under a contractual duty to warn her of dangerous conditions inherent in bus travel during her tour, we conclude, as a matter of law, that the plaintiff has not set forth facts adequate to establish that duty. The plaintiff also fails to demonstrate an implied obligation in regal'd to that alleged duty. As we will explain in part II, the evidence in the record leads only to the conclusion that defendant was an independent contractor relative to the local tour agency that escorted the plaintiff during her stay in Morocco. Acting as an independent entity, without any right to exercise control or supervision over the bus driver or tour guide who escorted the plaintiff during her stay in Morocco, the defendant lacked both an opportunity to know of site specific dangers the plaintiff might encounter and to warn her of those dangers.

The plaintiff relies heavily on Rookard v. Mexicoach, 680 F.2d 1257 (9th Cir. 1982), in support of her argument that the defendant owed her a duty to warn. The plaintiffs in Rookard alleged that they had purchased tickets for passage to Mexico from the defendant bus company, which held itself out as an agent and a carrier for travel into Mexico. Id., 1259. The plaintiffs alleged that the defendant “affirmatively vouched for their safe passage” to their destination in Mexico. Id. The defendant failed to tell the plaintiffs either the identity of or any risks inherent in traveling with the connecting Mexican bus carrier that the plaintiffs would be traveling with in Mexico. Id. After the defendant safely transported the plaintiffs to a terminal in Tijuana, Mexico, the plaintiffs boarded a Del Pacifico bus for the remainder of their journey. Id. That bus was subsequently involved in an accident, caused by the gross negligence of the Del Pacifico driver, which caused the plaintiffs to sustain severe injuries. Id.

The United States District Court in Rookard granted summary judgment in favor of the defendant after concluding that “the originating carrier has no liability for torts committed by a connecting carrier and that there was no duty to warn.” Id. The United States Court of Appeals for the Ninth Circuit reversed that judgment, reasoning that questions of fact existed that rendered granting of the defendant’s motion inappropriate. Id., 1263. Specifically, the Ninth Circuit noted that a question of fact existed as to whether the defendant was acting as an agent of the plaintiffs. Id., 1261. If it was so acting, the defendant may have owed the plaintiffs a duty to warn. Id., 1263. The Ninth Circuit also concluded that the plaintiffs properly had submitted an evidentiary basis to the District Court showing that the defendant bus company knew of the certain and real dangers inherent in bus travel in Mexico.

The facts of the present case are distinguishable from those in Rookard. The defendant in the present case is a tour operator that contracted with an independent entity in Morocco to provide bus travel for the plaintiff. In response to the defendant’s interrogatories, the plaintiff claimed that the inherent danger that the defendant should have warned her about was the “[l]ack of adequate hand hold, height of step down from bus, soil consistency of road shoulder material, etc.” The plaintiff has neither alleged nor demonstrated that the defendant knew or possessed the ability to learn about those unique conditions.

Given the facts before this court, we can discern no duty that the defendant owed to the plaintiff to warn her of the alleged hazard that caused her injury. For those reasons, the court properly granted the defendant’s motion on this issue.

II

The plaintiff next claims that the court improperly determined, as a matter of law, that the defendant could not be liable for the acts or omissions of Recep or its employees despite the defendant’s representation that Recep was its “partner agency.” The plaintiff claims, essentially, that a genuine issue of material fact existed as to whether the defendant’s assertions about its relationship with Recep estopped the defendant from denying the existence of a partnership with Recep. We disagree.

The plaintiff, in her complaint, alleged that the defendant conducted its tours in Morocco through “a partnership and/or joint venture” with Recep. She further alleged that her tour guide in Morocco, a Recep employee, as well as the bus driver and the baggage handler who assisted the plaintiff on her arrival in Morocco, were acting within the scope of their employment with the defendant or with the defendant’s partner agency, Recep. In several specifications of negligence, she alleged that those individuals caused her injuries.

The defendant refuted the allegations that either an agency or employment relationship existed between itself and Recep’s employees whom the plaintiff encountered during her trip. The defendant asserted that Recep acted as an independent contractor. The plaintiff argued, in opposition to the defendant’s motion, that the defendant could be held vicariously liable for the acts or omissions of those individuals because it could not avoid liability for the plaintiffs injuries by disavowing its explicit representations of a partnership with Recep. In other words, the plaintiff argued that the defendant was estopped from denying partnership liability, because the defendant permitted Recep to act as its apparent agent in Morocco. The court properly concluded, on the basis of the evidence before it, that no genuine issue of material fact existed, as the plaintiff suggests, concerning that issue. The court further concluded that no partnership by estoppel existed between the defendant and Recep, and that the terminology used by the defendant in its brochure was “at most, an unfortunate choice of words which conveyed no sense of a legal business partnership.” Our analysis must proceed, therefore, on the basis of whether the court reached the correct conclusion as a matter of law.

General Statutes § 34-301 (5) defines a “partnership” as “an association of two or more persons to carry on as co-owners a business for profit . . . .” Generally, a mutual agency relationship is an essential element of a partnership. Travis v. St. John, 176 Conn. 69, 72-73, 404 A.2d 885 (1978). “[A] joint venture . . . exists where two or more parties combine their property, money, efforts, skill or knowledge in some common undertaking .... The relationship between contracting parties cannot amount to a joint venture unless the parties so intend [and] . . . joint ventures relate to a single transaction, whereas partnerships exist for a general business.” (Citations omitted; internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 672-73, 748 A.2d 834 (2000). “Ordinarily, an employer of an independent contractor, absent an act of negligence on his own part, is not liable to others for the negligent acts of the contractor.” Ray v. Schneider, 16 Conn. App. 660, 663, 548 A.2d 461, cert. denied, 209 Conn. 822, 551 A.2d 756 (1988).

The factual record before us fails to support the plaintiffs claim that the defendant and Recep engaged in either a partnership or a joint venture. The uncontro-verted evidence submitted by the defendant demonstrates that Recep acted as the defendant’s independent contractor in Morocco. There is no evidence that any of the defendant’s employees took part in the plaintiffs activities in Morocco.

The plaintiff asserts that the defendant’s explicit representation of Recep as its “partner agency in Morocco” controls and that the defendant should be estopped from denying liability. We conclude that the defendant is entitled to judgment as a matter of law because the plaintiff has not set forth facts that reveal the existence of a legally cognizable cause of action in that regard.

The plaintiff argues that her claim should survive the defendant’s motion for summary judgment under a partnership by estoppel, apparent agency or agency by estoppel theory. The defendant, citing Mullen v. Horton, 46 Conn. App. 759, 771, 700 A.2d 1377 (1997), argues that “the doctrine of agency by estoppel, or apparent authority, has never been used to attach tort liability.” The doctrine of apparent authority is implicated where a principal “represents that another is his servant or agent and thereby causes a third person to rely justifiably on the care or skill of such agent,” and thereby incurs vicarious liability for the harm caused to the third person by the person held out as an agent. Id. As we noted in Mullen, that theory is not a viable ground on which to premise liability against a defendant sued for the torts of an alleged agent. Id., 772.

The common-law principle of partnership by estoppel provides that “after the dissolution of a partnership a former partner may be liable to one who has dealt with the partnership if he has received no notice of the dissolution and has given credit to the firm upon the faith of his connection with it. In such case the former partner is estopped to deny his connection with the partnership in favor of one who has dealt with it on the strength of that connection.” Morris v. Brown, 115 Conn. 389, 392, 162 A. 1 (1932). Likewise, “[a] person who holds himself out as a partner, or permits others to do so, is liable as such to third persons who give credit to the firm upon the faith of his connection with it, or who know of such holding out.” United States Wood Preserving Co. v. Lawrence, 89 Conn. 633, 643, 95 A. 8 (1915).

Those principles were codified in General Statutes (Rev. to 1995) § 34-54, which was repealed in 1997. That statute provided that one who falsely represented that a partnership existed would be liable to third parties who had provided credit to the “apparent” partnership. In the present case, the plaintiff does not allege that she either provided credit'to the defendant or that her reliance on the defendant’s representation in any way detrimentally harmed a business interest.

Similarly, the plaintiffs reliance on apparent agency or agency by estoppel is not well placed. Those theories are generally discussed in the context of apparent authority. They concern basically “that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses.” (Internal quotation marks omitted.) Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 140, 464 A.2d 6 (1983). As we previously stated, the plaintiff has not demonstrated that Recep was, at any time, the defendant’s agent.

The plaintiff cites two Superior Court decisions in support of her proposition that her cause of action against the defendant, under a theory of apparent agency, should proceed to trial. We are not persuaded. Those cases, at most, permitted causes of action against hospitals for the acts or omissions of independent contractors who were held out by the hospitals to be employees, not partners. We have found no Connecticut authority favoring the plaintiffs proposition that this same reasoning should apply to the tenuous relationship between a tour operator and an independent contractor that it contracted with to provide services to tourists around the world.

In Lavine v. General Mills, Inc., 519 F. Sup. 332 (N.D. Ga. 1981), the United States District Court for the Northern District of Georgia granted the motion for summary judgment filed by the defendants, a travel agency and a tour package planner, after concluding that the plaintiff tourist had failed to set forth facts showing that the defendants could be liable for injuries she sustained while traveling abroad. The plaintiff in Lavine had purchased a tour package from the defendants that included an optional cruise to the Fiji Islands. Id., 334. An independent contractor escorted the plaintiff on that excursion. Id., 336. The plaintiff fell on a rock and sustained injuries as she and other tourists went ashore to explore island caves and beaches during one part of that cruise. Id., 334. The District Court concluded that the defendants lacked a sufficient relationship with the cruise operator for the plaintiff to state a cause of action against the defendants for any of the cruise operator’s acts or omissions. Id., 335-36. The District Court noted that the defendants’ function was only to sell and arrange travel tour packages for those who desired to purchase them. Id., 337. Significantly, the District Court also noted that even if the defendants had acted as the plaintiffs agent during her excursion, there was no conceivable duty on their part that would have permitted the plaintiff to state a cause of action in negligence against them for her injuries. Id., 337-38.

The District Court in Lavine further stated that “[tjhere is hardly a person living who has not at one time or another slipped upon a rock, and not the slightest claim is made or evidence presented that the defendants caused or in any way contributed to the slip in this case. Not even a railroad, an airline or any other public earner is an insurer of the safety of its passengers where its instrumentalities are not defective or its employees are not negligent.” Id., 338; see also Fling v. Hollywood Travel & Tours, 765 F. Sup. 1302, 1308 (N.D. Ohio 1990) (defendant tour operator not held liable for plaintiff tourist’s injuries where it did not own, operate or manage hotel where she was robbed during vacation), aff'd, 933 F.2d 1008 (6th Cir. 1991).

Applying those principles to the present case, we conclude that the plaintiff has not set forth facts sufficient to establish an agency relationship between the defendant and Recep that would permit her to hold the defendant liable for the acts or omissions of Recep or its employees. The plaintiffs claim must therefore fail.

Ill

The plaintiff next claims that the court improperly determined, as a matter of law, that the defendant’s representations to her assuring her a smooth, comfortable and safe trip did not constitute a warranty that the plaintiff would not be injured negligently during her trip. We disagree.

The plaintiff alleged in her complaint that the defendant “explicitly and implicitly represented that it would provide the plaintiff with comfortable and safe accommodations and transportation while in Morocco, and that it had employed a tour manager to escort the plaintiff and others on the tour to ‘assure a smooth and comfortable trip.’ ” In support of her claim, the plaintiff submitted the tour brochure and the personal tour itinerary given to her by the defendant. The plaintiffs claim in this regard does not sound in negligent selection; instead, she asserts that the representations contained in those documents constituted a warranty. The court concluded, as a matter of law, that those representations did not guarantee the plaintiffs safety, but appeared “to be mere puffing and advertisement rhetoric, and not a guarantee . . . .”

Although this issue has not been considered by Connecticut courts, courts in several other jurisdictions have not permitted a claimant to rely on general language in tour brochures as a warranty by the tour operator guaranteeing a safe trip free from any adverse occurrences. As one court described it, the “plain trend” reflected in cases dealing with tour operator or travel agent liability disfavors liability regardless of the theory of recovery advanced by plaintiffs. Lavine v. General Mills, Inc., supra, 519 F. Sup. 337. For example, the plaintiff in Wilson v. American Trans Air, Inc., supra, 874 F.2d 386, brought an action in federal District Court against the defendant tour operator that sponsored a trip she had purchased to tour the Cayman Islands. An intruder assaulted the plaintiff in her hotel room during the trip, and she filed a complaint against the defendant on the ground that the language in the defendant’s tour brochure obligated the defendant to investigate and warn her of any such potential dangers. The United States Court of Appeals for the Seventh Circuit affirmed the District Court’s granting of the defendant’s motion for summary judgment. The Seventh Circuit noted that “[t]he brochure language relied upon by the [plaintiff] (focusing on the ‘relaxed informality’ of a Cayman Island vacation . . .) is mere ‘puffing.’ The language is not a guarantee of safety, and does not constitute affirmative conduct giving rise to a duty to investigate and warn. Cf. Lavine v. General Mills, Inc., [supra, 519 F. Sup. 336 ] (‘a general promise that the trip would be “safe and reliable” does not constitute a guarantee that no harm would befall plaintiff’).” Wilson v. American Trans Air, Inc., supra, 391.

Likewise, in Passero v. DHC Hotels & Resorts, Inc., supra, 981 F. Sup. 742, the plaintiff brought an action against the defendant tour operator after she tripped over a flotation mat that had been left near her chair at the hotel swimming pool. The plaintiff relied on language in the defendant’s tour brochure in support of her claim that the defendant had warranted that she would not suffer harm during her trip. The District Court concluded that the defendant did not assume “a heightened duty to investigate and warn [because it included] language in its travel brochure that is designed to put the plaintiffs mind at rest. . . . [T]his language does not, and cannot, be read as a guarantee that [the defendant’s] on-site representatives will protect plaintiff from injuring herself under all circumstances.” Id., 745.

The plaintiff in Sova v. Apple Vacations, supra, 984 F. Sup. 1137, sustained back injuries during a scuba diving excursion while on a trip to Cancún, Mexico, that she purchased from the defendant tour operator. She alleged that language in the defendant’s travel guide gave rise to an express or implied warranty that she would not have sustained the injury she suffered. Id., 1142. The District Court concluded that those statements could be characterized as “ ‘puffing,’ ” and that they did not guarantee that the plaintiffs trip would be free from mishaps. Id., 1143. Importantly, the District Court noted that “[t]he guarantee of satisfaction contained in the brochure contains no statements indicating any intent on defendant’s part to accept liability for personal injuries caused by the negligence of independent third parties.” Id.

The District Court in Sova also referred to the disclaimer contained in the defendant’s tour guide as evidence that the defendant did not guarantee the plaintiff protection from any negligent acts of third parties over which the defendant lacked control. Id., 1139; see also Connolly v. Samuelson, 671 F. Sup. 1312, 1318 (D. Kan. 1987) (summary judgment for defendant tour operator appropriate where “[t]he provisions in the defendants’ brochure and deposit receipt exculpating defendants from liability are plain evidence that defendants undertook no warranty or contractual guarantee of plaintiffs safety on her trip”); see also Tucker v. Whitaker Travel, Ltd., 620 F. Sup. 578, 586 (E.D. Pa. 1985), aff'd, 800 F.2d 1140 (3d Cir.), cert. denied, 479 U.S. 986, 107 S. Ct. 578, 93 L. Ed. 2d 581 (1986).

Connecticut courts have long recognized, in the context of the sale of goods, the fine distinction between advertisement or “puffery” and language that creates a warranty. See Web Press Services Corp. v. New London Motors, Inc., 203 Conn. 342, 351-52, 525 A.2d 57, following remand, 205 Conn. 479, 533 A.2d 1211 (1987). “[F]avorable comments by sellers with respect to their products are universally accepted and expected in the market place . . . and do not give rise to liability.” (Internal quotation marks omitted.) Gold v. University of Bridgeport School of Law, 19 Conn. App. 379, 384-85, 562 A.2d 570, cert. denied, 213 Conn. 801, 567 A.2d 832 (1989). In general, a court will be more likely to find the creation of a warranty where a party makes a specific representation rather than a general representation. Web Press Services Corp. v. New London Motors, Inc., supra, 352.

Applying those principles to this case, as well as the guidance afforded us by the previously discussed cases, we conclude that the statements in the defendant’s brochure failed, as a matter of law, to warrant the plaintiffs safety or that she would receive nonnegligent care during every aspect of her trip. Additionally, the defendant expressly disclaimed liability for any acts beyond its control or by third parties and stated that it operated its tours “solely as an independent contractor.” The plaintiffs trip abroad, by its very nature, exposed her to any number of unforeseen conditions and persons. We reiterate that summary judgment is appropriate where there are no genuine issues of material fact. That is the case here. The substance, context and lack of specificity characterizing the defendant’s representations do not permit the finding of the existence of a warranty that the plaintiff would not be injured as she alighted from a bus in a desert during her trip to Morocco. The defendant neither guaranteed the plaintiffs safety nor that the independent contractors it hired would warn her of all possible dangers during her tour.

The plaintiff relies heavily on Stevenson v. Four Winds Travel, Inc., 462 F.2d 899 (5th Cir. 1972), in support of her argument that the language the defendant used in its brochure constituted a warranty that she would receive nonnegligent care during her trip and that summary judgment is inappropriate in regard to that claim. The plaintiff in Stevenson, a member of a tour group, sustained injuries when she slipped and fell on a pier during an excursion in Brazil. Id., 904. She alleged that the defendant tour operator should have warned her of the dangerous condition and should have guarded against it. She claimed that the defendant’s representations in its tour brochures guaranteed that she would receive nonnegligent care during her trip.

The United States District Court in Stevenson directed a verdict in favor of the defendant on that claim. Id., 904. On appeal, the United States Court of Appeals for the Fifth Circuit reversed the judgment, reasoning that “[t]he representations and statements of Four Winds in the brochure, with respect to the services that would be rendered by [the tour director], were a part of what Four Winds obligated itself to do in the tour contract with Stevenson, and Stevenson had the right to rely thereon and did rely thereon.” Id., 906. The Fifth Circuit concluded that the plaintiff “had the right to expect that [her tour director] would warn her of any danger like the slippery condition of the pier walkway and caution her to use extraordinary care to guard against the peril of such a condition.” Id., 907.

Stevenson is distinguishable from the present case for several reasons. First, the defendant tour operator’s representations in that case were more specific than the representations made in the present case. The defendant in Stevenson described the “careful selection, training and experience, and the many services” that tour escorts would provide tour participants. Id. Second, the defendant in that case admitted that the tour manager assumed all management of matters pertaining to his tour. Id., 906. Third, the Fifth Circuit concluded in Stevenson that the danger encountered by the plaintiff was neither temporary nor unexpected, unlike the allegedly dangerous terrain the plaintiff in the present case encountered when she alighted from the bus during an unscheduled stop along a desert road. For those reasons, the plaintiffs claim must fail.

IV

Finally, the plaintiff claims that the court improperly considered certain hearsay statements in Flynn’s affidavit in reaching its decision to grant the defendant’s motion for summary judgment and that the court’s decision should be reversed on that ground. We disagree.

Specifically, the plaintiff claims that Flynn averred that Recep did not own the bus that carried the plaintiff at the time she sustained her injuries and that Recep did not employ the tour manager, baggage handler or bus driver, or exercise any control or authority over those individuals. The plaintiff argues that those representations necessarily could not have come from Flynn’s personal knowledge because Flynn denied any connection with Recep. The plaintiff further argues that because those statements constitute inadmissible hearsay, the court improperly relied on them in granting the defendant’s summary judgment motion.

Having reviewed the court’s memorandum of decision, we conclude that the court did not rely on the statements at issue in Flynn’s affidavit when reaching its decision. The court’s critical ruling was that the defendant did not bear vicarious liability for Recep or any of its agents or employees. The court noted, with respect to the plaintiffs assertion that a question of fact existed as to whether Recep employed the tour manager, Achmed, that “[e]ven if there was a question of fact as to the relationship between Achmed and Recep, the court finds that such a question would not preclude granting summary judgment in the defendant’s favor.” Because Flynn’s statements are immaterial in regard to the issues we find determinative of the appeal, we need not consider this issue.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff also claims that the court improperly concluded that she was bound by a waiver of liability that she submits she neither saw nor signed. Because our conclusions regarding the plaintiffs other claims are dispositive of this appeal, we need not address that issue.

       In part III, we will discuss more fully the specific representations that the defendant made to the plaintiff.

         The defendant submitted to the court Flynn’s affidavit in which he attested that Recep acted solely as an independent contractor. He further stated that Recep acted as a ground operator for the trip, and that it contracted with the bus company in Morocco that provided service to the plaintiff and the others accompanying her on the trip. He attested that the defendant and Recep did not share profits, and that the defendant did not exercise any control over Recep, its employees or any persons who provided services to the plaintiff in Morocco.

       The plaintiff submitted to the court an affidavit in which she attested that the defendant gave her a brochure entitled, “General Tours Welcomes You to Morocco,” and that she believed, “based on the statements in this brochure, that the tour was being conducted by General Tours and that the tour manager referred to was an agent or employee of General Tours.” The plaintiff submitted to the court the defendant’s six page brochure, which stated, inter alia, in a section entitled, “Important Phone Numbers,” the following: “Recep Tours: Our partner agency in Morocco, they will be happy to assist you since you are traveling with General Tours.”

       The defendant, in its brief, correctly points out that the plaintiff failed to allege a partnership by estoppel theory of recovery in her complaint; she used that terminology for the first time in her opposition to the defendant’s motion for summary judgment. We have recognized previously that a plaintiff may rely only on the allegations in her complaint. See Jenkins v. Commissioner of Correction, 52 Conn. App. 385, 406, 726 A.2d 657, cert. denied, 249 Conn. 920, 733 A.2d 233 (1999). “The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise.” (Internal quotation marks omitted.) Borkowski v. Sacheti, 43 Conn. App. 294, 320, 682 A.2d 1095, cert. denied, 239 Conn. 945, 686 A.2d 120 (1996). “[A] plaintiff may not allege one cause of action and recover upon another . . . .” (Citation omitted; internal quotation marks omitted.) Stafford Higgins Industries, Inc. v. Norwalk, 245 Conn. 551, 575, 715 A.2d 46 (1998). “(T]he modem trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically. ... As long as the pleadings provide sufficient notice of the facts claimed and the issues to be tried and do not surprise or prejudice the opposing party, we will not conclude that the complaint is insufficient to allow recovery.” (Internal quotation marks omitted.) Remington Investments, Inc. v. National Properties, Inc., 49 Conn. App. 789, 802, 716 A.2d 141 (1998).
      The plaintiff submits that this argument is “simply unfair” because the defendant denied a partnership with Recep for the first time in its December, 1998 amended answer. The plaintiff filed its complaint in February, 1997, and the defendant, in its July, 1998 original answer, left the plaintiff to her proof as to the allegation that the defendant engaged in either a partnership or a joint venture with Recep. We note that the plaintiff was free to seek permission to amend her complaint after the defendant filed its amended answer. See Practice Book § 10-60. She did not do' so and chose, instead, to raise the issue of estoppel in her opposition to the defendant’s summary judgment motion, which she filed six months after the defendant filed its amended answer. We are not persuaded by the plaintiffs argument. We considered the defendant’s claim on its merits because the court did base its decision on that ground.

       The plaintiff asserts that her claim arises out of 2 Restatement (Second), Torts § 429 (1965), which provides: “One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.”

       General Statutes (Rev. to 1995) § 34-54 provides in relevant part: “(1) When a person, by words spoken or written or by conduct, represents himself, or consents to another representing him to any one, as a partner in an existing partnership or with one or more persons not actual partners, he is liable to any such person to whom such representation has been made, who has, on the faith of such representation, given credit to the actual or apparent partnership, and if he has made such representation or consented to its being made in a public manner he is liable to such person, whether the representation has or has not been made or communicated to such person so giving credit by or with the knowledge of the apparent partner making the representation or consenting to its being made.
      “(a) When a partnership liability results, he is liable as though he were an actual member of the partnership. . . .”

        Wilverding v. Ostrowitz, Superior Court, judicial district of Fairfield, Docket No. 334949 (February 28, 2000) (26 Conn. L. Rptr. 632, 633); Francisco v. Hartford Gynecological Center, Inc., Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 513841 (March 1, 1994) (11 Conn. L. Rptr. 191, 192).

       The plaintiff refers to specific language in the defendant’s brochure stating that “[w]e know that you will enjoy the experience,” and “[i]f you are taking one of our escorted tours your professional Tour Manager will meet you upon arrival . . . Furthermore, the brochure stated that “[i]t is this Tour Manager’s sole responsibility to assure that you have a totally smooth and comfortable trip. They are there to assist you in any way. . . . Your tour manager and local guides will work together in each city to make this trip a unique and enriching experience for every General Tours traveler.”

        In support of her argument that the defendant implicitly assured her that she would be cared for by the defendant, the plaintiff also refers to the defendant’s use of the word “we” in the personal itinerary that was given to her. The plaintiff additionally referred to another document that stated that “[a]t. General Tours, we’ve made a unique commitment to helping ensure your vacation goes as smoothly as possible.” The document also stated that the defendant’s commitment to tour participants includes access to the “General Assist Network,” which would advise tourists about medical facilities and physicians if either should become necessary, and that assistance professionals would “follow through and monitor your condition by checking in regularly with your local doctor and you.”

       For purposes of clarity, we note that the plaintiff does not claim that the defendant breached a contractual duty to either select competent personnel to assist her on her tour or to arrange for adequate accommodations or the like. Under a claim brought under a negligent selection theory, a principal can be held liable for the torts of an independent contractor “when the consequences of the principal’s own negligent failure to select a competent contractor caused the harm upon which the suit is based.” (Emphasis in original.) Wilson v. American Trans Air, Inc., supra, 874 F.2d 389.

       The relevant language in the defendant’s travel guide stated: “Apple Vacations has prescreened all tours for quality, safety and your guarantee of satisfaction. . . . Apple Vacations assumes no responsibility for tours purchased through other companies. Secure your optional tours by purchasing through Apple Vacations. We will make sure that your satisfaction is guaranteed and the quality of the product is kept at the highest standards.” Sova v. Apple Vacations, supra, 984 F. Sup. 1142.

       Although we do not reach the plaintiffs claim that the defendant’s disclaimer was not binding on her, we note the language in the disclaimer as further, though cumulative, evidence that the defendant did not warranty the plaintiffs safety. The disclaimer portion of the brochure, entitled “Responsibility,” stated in relevant part: “General Tours (the ‘Operator’) packages and operates these programs solely as an independent contractor. The tour services described in this brochure, including without limitation transportation, lodging, and sightseeing, are provided by the carrier, hoteliers, and other suppliers that are independent contractors and not agents for employees, partners, or joint venturers of the Operator. The Operator issues tickets, vouchers, and other travel documents for such services merely as an agent for the companies that furnish such services. . . . The Operator is not responsible for any loss of or damage to property or death or injury to persons, resulting from any act or omission of any supplier providing any tour service .... The tour participant expressly waives all rights which he or she may have against the Operator in connection with the foregoing.”

       The defendant’s brochure in Stevenson stated that “Four Winds also guarantees that every tour will be escorted by a qualified professional tour director. Our tour directors have been carefully selected and trained .... Your escorts (tour directors) are also informative, they know precisely what you will be seeing and doing every day.” (Internal quotation marks omitted.) Stevenson v. Four Winds Travel, Inc., supra, 462 F.2d 906. In reference to the tour directors, the brochure stated that “they’ve been there before.” (Internal quotation marks omitted.) Id. The brochure also stated that each tour would be “fully escorted from start to finish,” and that “[f]rom the moment you leave until your journey ends, you are cared for by a carefully selected Four Winds Tour escort,.” (Internal quotation marks omitted.) Id., 906-907.


source: Caselaw Access Project

author: DRANGINIS, J.

license: Public Domain

text:
    MARY JANE PATCHELL v. AUTOMOBILE INSURANCE COMPANY OF HARTFORD ET AL.
    (AC 19761)
    Lavery, C. J., and Spear and Dranginis, Js.
    Argued January 9
    officially released April 24, 2001

      Roger Sullivan, with whom were Anthony G. Api-cella and, on the brief, Douglas J. Apicella, for the appellant (plaintiff).

      David A. Haughl, with whom, on the brief, was Paul A. Croce H, for the appellee (named defendant).

      Michael P. Del Sole, for the appellee (defendant Deborah Fiducia).
   Opinion

DRANGINIS, J.

The plaintiff, Mary Jane Patchell, appeals from the judgment of the trial court rendered following the denial of her motions to set aside the verdict. On appeal, the plaintiff claims that the court improperly (1) denied her motions to set aside the verdict and (2) instructed the jury on damages. We disagree and, accordingly, affirm the judgment of the trial court.

The jury reasonably could have found the following facts as to the accident that is the basis of this action. On February 4, 1989, in North Haven, the plaintiff was driving an automobile when she was struck in the rear by a truck owned and operated by Karl Helff. Helff was driving north on Montowese Avenue when he heard some furniture shift in the bed of his pickup truck. When he turned to look at the furniture in the back of his truck, his foot slipped from the brake pedal to the accelerator and he collided into the rear of the plaintiffs vehicle. The plaintiff was stopped in traffic at the time of the collision.

After the collision and at the scene of the accident, the plaintiff got out of her vehicle, cursed at Helff and threatened that her husband would “come after” him. Thereafter, the plaintiff was taken by ambulance from the accident scene to Yale-New Haven Hospital because she complained of neck pain. She was seen in the emergency room and then discharged with a diagnosis of flexion-extension injury to the neck.

Helff had a $20,000 automobile liability insurance policy at the time of the accident, and his insurance company paid that amount to the plaintiff on November 17, 1989. The plaintiff also had insurance and was insured by the defendant Automobile Insurance Company of Hartford. The plaintiff had a total of $600,000 in underinsured motorist coverage at the time of the accident. On November 29, 1989, following the settlement of her claim against Helff, the plaintiff sent a letter to the defendant insurer claiming $580,000 in underin-sured motorist benefits. This amount reflected $600,000 of underinsured motorist coverage minus $20,000 already recovered from Helff s insurer. No other interaction occurred between the plaintiff and the defendant insurer for four years.

On June 2, 1994, the plaintiff resumed her claim against the defendant insurer for underinsured motorist coverage because she was experiencing symptoms that she attributed to the 1989 car accident. On January 3, 1998, an MRI was performed that disclosed a tumor on the plaintiffs pineal gland. The tumor was partially removed by surgery and found to be malignant. The plaintiff died on July 16, 1998, from the tumor.

Prior to her death, the plaintiff filed a three count complaint, alleging negligence, breach of an implied covenant of good faith and fair dealing, and intentional infliction of emotional distress. At trial, claims were made on behalf of the plaintiff, by her estate, against the defendant insurer for neck injuries, headaches and other damages. The plaintiff also alleged intentional infliction of emotional distress against the defendant insurer’s claims adjuster, the defendant Deborah Flducia, individually, based on a statement that she allegedly had made to the plaintiffs attorney during settlement negotiations. The jury found in favor of the defendants on all counts of the plaintiffs complaint.

On May 12, 1999, the jury answered interrogatories in the following manner. To the first interrogatory— “Did Mary Jane Patchell suffer injuries legally caused by the negligence of Karl N. Helff on February 4, 1989?” — the jury answered, “No.” To the interrogatory — “Do you find that the offer of settlement in the amount of $12,500 made by the defendant Automobile Insurance Company of Hartford, Connecticut, for Mary Jane Patchell’s uncompensated injuries and damages was a breach by the company of the implied covenant, contained in its policy with Ms. Patchell, of good faith and fair dealing?” — the jury answered, “No.” To the interrogatory — “Do you find that the defendant Deborah Fiducia stated that Mary Jane Patchell was able to get pregnant and that she had done things to get pregnant?” — the jury answered, “No.” After the jury returned the verdict, the court rendered judgment for the defendants in accordance with the verdict. The plaintiff then filed motions to set aside the verdict and judgment. On June 21, 1999, the court denied the plaintiffs motions. This appeal followed. Additional facts will be provided as necessary.

I

The plaintiffs first claim is that the court improperly denied her timely motion to set aside the verdict and judgment as to count one of the complaint, which sought underinsured motorist benefits for injuries allegedly sustained as a result of the negligence of Helff. The plaintiff argues that the court abused its discretion when it refused to set aside the verdict. Specifically, the plaintiff argues that the verdict was contrary to the undisputed evidence and that the jury could not reasonably have found that the plaintiff had not been injured or that Helff was not the legal cause of her injury.

It is well established that appellate review of a trial court’s denial of amotion to set aside a verdict is limited. Preston v. Wellspeak, 62 Conn. App. 77, 80, 767 A.2d 1259 (2001). “In reviewing the trial court’s denial of [a motion to set aside a verdict], our function is to determine whether the trial court abused its discretion. . . . Absent an abuse of discretion, this court will uphold the denial.” (Citation omitted.) Id. “Our review of a trial court’s decision . . . refusing to set aside a verdict . . . requires us to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony .... The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion. . . . A jury verdict should not be disturbed unless it is against [the weight of the] evidence or its manifest injustice is so plain as to justify the belief that the jury or some of its members were influenced by ignorance, prejudice, corruption or partiality. . . . [T]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable.” (Internal quotation marks omitted.) Amsden v.Fischer, 62 Conn. App. 323, 329-30, 771 A.2d 233 (2001).

On the basis of our review of the record, we conclude that a reasonable jury could have found that the actions of Helff were not the legal cause of the symptoms that the plaintiff attributed to the car accident. The jury may have concluded, on the basis of the testimony offered by James Merikangas, a neurologist and psychiatrist, that the pineal tumor caused the injuries and symptoms that the plaintiff experienced and not the motor vehicle accident with Helff.

The jury may also reasonably have concluded that the plaintiff was not injured in the car accident. That determination would be reasonable because the evidence established that the plaintiff got out of her car after the accident, threatened Helff and sought further medical treatment only after consulting with her lawyer. The evidence presented at trial adequately supported the verdict reached by the jury in favor of the defendant insurer. We conclude that it was within the discretion of the trial court to refuse to set aside the verdict.

II

The plaintiffs second claim is that the court improperly denied her timely motion to set aside the verdict and judgment as to count two of the complaint. Count two alleged breach of an implied covenant of good faith and fair dealing by the defendant insurer. The plaintiff argues that the court abused its discretion when it refused to set aside the verdict. Specifically, the plaintiff claims that “the verdict [on the second count] was premised on the infirm verdict rendered on the first count.” The only support for this claim is the plaintiffs assertion that the jury had no basis for the defendant’s verdict in the first count. Our rejection of the plaintiffs claim as to the first count compels us also to reject this claim.

III

The plaintiffs third claim is that the court improperly denied her timely motion to set aside the verdict and judgment as to count three of the complaint, which alleged intentional infliction of emotional distress by Fiducia. The plaintiff argues that the court abused its discretion when it refused to set aside the verdict. Specifically, the plaintiff claims that the verdict was contrary to both the undisputed evidence and the judicial admissions contained in Fiducia’s answer.

The third count of the plaintiffs complaint alleged intentional infliction of emotional distress. At trial, the plaintiff argued that Fiducia made statements to the plaintiffs lawyer, during settlement negotiations, that constituted intentional infliction of emotional distress. The plaintiff claimed that Fiducia stated that “the plaintiff was able to get pregnant and that she had done things to get pregnant,” and that this statement constituted intentional infliction of emotional distress. The jury, by way of interrogatory, determined that Fiducia had not made the statement. On appeal, the plaintiff argues that the jury could not reasonably have answered no to the interrogatory pertaining to count three, and, therefore, the court improperly denied her motion to set aside the verdict. We disagree.

In oral argument concerning the plaintiffs motion to set aside the verdict, Fiducia argued that the jury would have to find that the entire statement had been made as quoted in the complaint to answer the interrogatory in the affirmative. The court stated: “[I]f the plaintiff had alleged and requested an interrogatory that Deborah Fiducia simply stated that Mary Jane Patchell was able to get pregnant and the answer had been ‘no,’ this would have raised different problems, but that’s not the factual setting of the case. The plaintiff made an allegation of a lengthier and multipart statement on Fiducia’s part, and, the way it came in, the court is convinced that the jury was not obliged to answer this question ‘yes,’ it could pick and choose among the evidence before it, and the court is convinced that there was a reasonable factual basis for its ‘no’ answer on this.”

The jury reasonably could have found on the basis of the evidence that Fiducia stated only that the plaintiff was “able to get pregnant” and that she did not say what the interrogatory alleged. The jury, therefore, reasonably could have answered “no” to the interrogatory question that asked, “[D]o you find that the defendant Deborah Fiducia stated that Mary Jane Patchell was able to get pregnant and that she had done things to get pregnant.” We conclude, therefore, that it was within the discretion of the court to refuse to set aside the verdict.

IV

The plaintiffs final claim is that the court improperly charged the jury on damages. In light of our conclusion that the trial court properly denied the plaintiffs motions to set aside the verdict in favor of the defendants, we need not address this claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       On July 16, 1998, Mary Jane Patchell, the original plaintiff, died. The action was continued by her husband, Robbie Patchell. For purposes of this opinion, references to the plaintiff will be to Mary Jane Patchell.

       There are two separate defendants involved in this appeal, the Automobile Insurance Company of Hartford, and its employee and claims adjuster, Deborah Fiducia.

       As with our review of the plaintiffs first claim, our review of the third claim is under an abuse of discretion standard. Preston v. Wellspeak, supra, 62 Conn. App. 80.


author: PETERS, J.

text:
    AMRESCO NEW ENGLAND II, L.P., ET AL. v. DOMINIC COLOSSALE ET AL.
    (AC 20259)
    Foti, Spear and Peters, Js.

      Argued December 11, 2000
    officially released April 24, 2001

      Paul N. Gilmore, with whom, on the brief, was Sara N. Robinson, for the appellant (substitute plaintiff).

      Donald Gaudreau, for the appellees (named defendant et al.).
   Opinion

PETERS, J.

The principal issue in this mortgage foreclosure action is whether a mortgagee can require a trial court to order a strict foreclosure on all the separate parcels covered by a blanket mortgage if a foreclosure limited to fewer than all parcels will satisfy the mortgage debt. Exercising its equitable discretion, the court ordered a limited strict foreclosure. The mortgagee challenges the validity of this order. The validity of the court’s order raises a question of first impression for this court. We affirm the judgment.

The plaintiff, Amresco New England II, L.P. (Amr-esco), brought an action for strict foreclosure on five separate and noncontiguous parcels of property on which it held a blanket mortgage that secured a note signed by the defendants Dominic Colossale and others (Colossales). The Colossales requested an order of strict foreclosure limited to parcels one and two, supplemented by a small cash contribution that they had submitted to the court. Finding the Colossales’ request for a limited foreclosure to be fair and equitable, the court rendered judgment accordingly. Amresco has appealed.

The parties stipulated to all of the relevant facts. On or about March 1, 1996, Amresco acquired a previously executed promissory note that is presently secured by a mortgage on five parcels of property owned by the Colossales. The note presently is in default. At the time of judgment, the mortgage foreclosure debt totaled $476,870.89. The total fair market value of all five parcels was $1,374,500. The mortgage debt will be satisfied in full by strict foreclosure on the first and second parcels that jointly have a fair market value of $475,500, supplemented by the Colossales’ submission to the court of ready funds equaling $1370.89.

On appeal, Amresco has raised two issues of law. It argues that the court improperly (1) limited the number of parcels on which it could foreclose and (2) granted the Colossales’ claim for a reduction in the amount of the interest owed to Amresco. We are not persuaded by the merits of either claim.

I

For six reasons, Amresco maintains that the trial court improperly denied its request for strict foreclosure of all of the parcels of property that secured the Colossales’ defaulted debt. It argues that a limited strict foreclosure (1) is not authorized by Connecticut substantive law, (2) is not authorized by Connecticut procedural law because proper pleadings had not been filed, (3) may be sought only upon the request of a junior lienor, (4) may be granted only with the consent of the foreclosing mortgagee, (5) may not be granted in the absence of a motion by the debtors seeking a foreclosure by sale and (6) violates a secured creditor’s federal constitutional right to due process. We disagree with each of these contentions.

Because the parties stipulated to the underlying facts, we are limited to reviewing questions of law. Our review is therefore plenary. SLI International Corp. v. Crys tal, 236 Conn. 156, 163, 671 A.2d 813 (1996); Connecticut Post Ltd. Partnership v. South Central Connecticut Regional Council of Governments, 60 Conn. App. 21, 25, 758 A.2d 408, cert. granted on other grounds, 255 Conn. 903, 762 A.2d 907 (2000).

Amresco’s principal argument is that a foreclosure court lacks substantive authority to render a judgment of limited strict foreclosure for a blanket mortgage, even when the mortgage covers several noncontiguous parcels of property. The parties have not pointed to any specifically applicable statute or case law that squarely permits or precludes a limited order of foreclosure. Amresco appears to take the position that the court needed express authority to proceed as it did, while the Colossales appear to take the position that the general equitable authority of a foreclosure court includes the power to determine the manner of foreclosure.

The closest statute on point is General Statutes § 49-24. It permits a trial court to determine whether to order a strict foreclosure or a foreclosure by sale. It contains no guidance about the manner in which a foreclosure is to be conducted. Neither party contends that § 49-24, by its terms, expressly addresses limited foreclosures.

The cases on which the parties rely are similarly inconclusive. All of the cited cases are distinguishable on their facts and by the procedural form in which the cases arose. Amresco urges us to follow the reasoning of two cases that arose in the context of a foreclosure on a single piece of property. In both cases, our courts affirmed a trial court decision that declined to order an apportionment of the property. New Haven Bank v. Jackson, 119 Conn. 451, 177 A. 387 (1935); Voluntown v. Rytman, 21 Conn. App. 275, 573 A.2d 336, cert. denied, 215 Conn. 818, 576 A.2d 548 (1990). Neither court discussed the authority of a trial court to come to the opposite conclusion. Jackson focused on the importance of maintaining a distinction between foreclosure actions and partition actions; New Haven Bank v. Jackson, supra, 454-55; a distinction that is irrelevant here, where the mortgaged properties are separate and noncontiguous. Like Jackson, Voluntown deals with the foreclosure of a single undivided parcel covered by a mortgage.

The cases on which the Colossales rely likewise do not govern this case. Although these cases comment favorably on the possibility of a court order of limited foreclosure, neither involved a request for limited strict foreclosure on the part of the original mortgagor. New England Mortgage Realty Co. v. Rossini, 121 Conn. 214, 183 A. 744 (1936); Lomas & Nettleton Co. v. DiFran-cesco, 116 Conn. 253, 164 A. 495 (1933). Rossini concerned the proper sequence for foreclosure among defendants who were successive grantees of discrete portions of the underlying mortgaged property and not the original mortgagor. The Rossini court held only that equitable principles support apportionment of the debt between two successive grantees of discrete portions of the mortgaged property and that such apportionment could be implemented by foreclosure in inverse order of alienation of each of the several parcels by the mortgagor. Lomas considered the merits of a limited strict foreclosure designed to protect the rights of a junior lienor. The court approved such a limited foreclosure in principle, but did not apply the principle because of a procedural failure to raise the relevant issues at trial.

In the absence of binding statutory directions or dis-positive common-law precedents, we view this case through the lens of the equitable discretion that governs mortgage foreclosure cases. For more than a century, our Supreme Court has held that a court of equity may devise the remedy that is appropriate for the enforcement of a lawful judicial lien. Chappell v. Jardine, 51 Conn. 64, 69 (1884). Because “[fjoreclosure is peculiarly an equitable action . . . the court may entertain such questions as are necessary to be determined in order that complete justice may be done.” Hartford, Federal Savings & Loan Assn. v. Lenczyk, 153 Conn. 457, 463, 217 A.2d 694 (1966). In a foreclosure proceeding, “the trial court may examine all relevant factors to ensure that complete justice is done. . . . The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.” (Internal quotation marks omitted.) Northeast Savings, F.A. v. Hintlian, 241 Conn. 269, 275, 696 A.2d 315 (1997), quoting Citicorp Mortgage, Inc. v. Burgos, 227 Conn. 116, 120, 629 A.2d 410 (1993).

Under the circumstances of this case, we conclude that the court did not abuse its discretion in limiting Amresco’s foreclosure to two parcels of mortgaged property. A full foreclosure that would have given Amr-esco a substantial and undeserved windfall would not have comported with principles of equity. See Issler v. Issler, 250 Conn. 226, 241, 737 A.2d 383 (1999); Connecticut National Bank v. Chapman, 153 Conn. 393, 399, 216 A.2d 814 (1966). It is hornbook law that the mortgage follows the note. New Milford Savings Bank v. Jajer, 244 Conn. 251, 266, 708 A.2d 1378 (1998). “The mortgage cannot survive the extinction of the debt.” Id., citing Hartford National Bank & Trust Co. v. Kot-kin, 185 Conn. 579, 581, 441 A.2d 593 (1981). A mortgagee is entitled to full payment of the debt, but no more. Lomas & Nettleton Co. v. DiFrancesco, supra, 116 Conn. 258. The court’s order assured the mortgagee of that full payment. The court’s order, therefore, was an entirely appropriate exercise of its equitable discretion. See New England Mortgage Realty Co. v. Rossini, supra, 121 Conn. 219.

Amresco’s remaining nonconstitutional objections to the order of limited foreclosure are also unavailing. These objections argue (1) a procedural default in the pleadings at trial, (2) a substantive impropriety in allowing a mortgagor, rather than a junior lienor, to seek a limited foreclosure, (3) a substantive impropriety in ordering a limited foreclosure to which Amresco had not consented and (4) that the Colossales’ sole remedy was to file a motion for foreclosure by sale. None of these arguments is persuasive and none warrants extensive discussion.

Amresco faults the pleadings because remedial issues were raised during the trial that had not been set forth clearly in the initial pleadings. It cites no authority for the proposition that, in the absence of a timely obj ection at trial, the court was precluded from considering these issues on their merits. The Lomas case, on which it relies, concerned a total failure to raise an issue at trial. That is not the situation here.

Amresco claims that only a junior lienor, and not a defaulted mortgagor, may request an apportionment of mortgaged property. Again, it cites no case that so holds.

Amresco similarly cites no authority affording a foreclosing mortgagee a veto power over the maimer of foreclosure in the absence of timely opposition at trial. It also cites no authority requiring a mortgagor to seek a foreclosure by sale. As the court noted, foreclosures by sale, as forced sales, may produce less funds than could be attributed to the fair market value calculation in a strict foreclosure.

Finally, Amresco claims that its federal constitutional right to due process under the fourteenth amendment of the United States constitution was impaired by the court’s order of limited strict foreclosure. The court’s order, according to Amresco, deprived it of the benefit of its mortgage and deprived it of duly negotiated contract rights. It claims that the court had no authority whatsoever to extinguish its mortgage on parcels three, four and five. The flaw in this argument is that it presumes that the decision of the court caused cognizable injury to Amresco. There was no such injury because the full payment of a mortgage debt automatically extinguishes a mortgage given to secure the debt.

In conclusion, although Amresco has laid out numerous challenges to the validity of the order of limited foreclosure, we are persuaded that the court, in exercising its equitable authority, was not barred from considering an order of limited strict foreclosures. Under the circumstances of this case, the court did not abuse its equitable discretion in limiting its order of foreclosure to two discrete separate parcels of land that were the subject of a blanket mortgage. The undisputed facts show that a limited foreclosure will permit Amresco to receive the full value of the mortgage debt that was secured by the blanket mortgage. It was not an abuse of discretion to deprive Amresco of the windfall that it would have received had a full foreclosure been ordered.

II

Amresco’s second major argument concerns the validity of the court’s decision to stop the accrual of interest on the mortgage debt on November 4, 1999, the date when the trial ended. Amresco concedes that a trial court’s ruling on abatement of interest is reviewed only for an abuse of discretion. Hamm v. Taylor, 180 Conn. 491, 497, 429 A.2d 946 (1980). We can discern no such abuse of discretion in this case.

Amresco maintains that the court’s decision to stop the accrual of interest was made solely to “bully” Amr-esco into making unspecified, unwarranted concessions. That claim is unsubstantiated in the record. Although the court indicated its surprise at Amresco’s intent to appeal, there was no necessary linkage between its observation and its ruling on the accrual of interest. On the record, the court stated that its ruling was made to discourage further delay in the proceedings. It also adverted to other general considerations, which Amresco did not try to explore further. If Amr-esco considered the ruling to be the result of bias arising out of disapproval of Amresco’s intention to appeal, Amresco might have moved to disqualify the judge on that basis. It did not do so. This is not an issue appropriately raised for the first time on appeal. See Krat-tenstein v. G. Fox & Co., 155 Conn, 609, 615-16, 236 A.2d 466 (1967).

We conclude that the termination of future interest, under the circumstances of this case, did not constitute an abuse of discretion. The court was free to decide as it did.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

       During the pendency of the foreclosure proceedings, the plaintiff transferred its rights to another entity, Pendragon Real Estate Corporation. Because the parties have continued to refer to the plaintiff as Amresco, we shall do the same.

       The defendants obligated under the note are Dominic Colossale, Virginia Colossale and Colossale ReadyMix, Inc.

       Although the possibility of foreclosure by sale was discussed at trial, neither Amresco nor the Colossales moved for such a foreclosure. At one point during the proceedings, Bank United, a creditor with an attachment lien junior to the Amresco mortgage, filed a motion for foreclosure by sale, but withdrew that motion before the court rendered judgment.
      The court’s memorandum of decision, in addition to noting the absence of a request for foreclosure by sale, made findings about whether such a foreclosure would be equitable. It held to the contrary, stating that “[a] foreclosure by sale would unnecessarily add to costs, and being a forced sale, might result in diminished values.”

       The mortgage foreclosure debt of $476,870.89 consisted of $321,973.32 principal, $117,397.57 interest and $37,500 attorney’s fees and costs.

       As stipulated, the fair market value of each of the parcels was as follows: Parcel one: $354,500;
      Parcel two: 121,000;
      Parcel three: 121,500;
      Parcel four: 302,500;
      Parcel five: 375,000.

       We disagree with the assertion of the Colossales that, with respect to the foreclosure issue, the proper standard of review is a determination of whether the judgment of the court was an abuse of its discretion. This assertion misst ates significant aspects of Amresco’s appeal. Amresco challenges the authority of the court to exercise any discretion at all to limit the scope of its foreclosure judgment.

       General Statutes § 49-24 provides: “All liens and mortgages affecting real property may, on the written mot ion of any party to any suit relating thereto, be foreclosed by a decree of sale instead of a strict foreclosure at the discretion of the court before which the foreclosure proceedings are pending.”

       Amresco relies, in part, on General Statutes § 49-25. That statute is inapplicable because it addresses foreclosures by sale.

       Even though that property was traversed by a highway, the court characterized it as a single piece of property. Voluntown v. Rytman, supra, 21 Conn. App. 277-78.