author: BORDEN, J.

text:
    CHARLOTTE HUNGERFORD HOSPITAL v. KEVIN E. CREED ET AL.
    (AC 34238)
    Lavine, Robinson and Borden, Js.

      Argued January 9
    officially released July 16, 2013

      Michael G. Rigg, for the appellant (plaintiff).

      Elizabeth M. Cristofaro, for the appellees (named defendant et al.).
   Opinion

BORDEN, J.

This appeal involves an action for vexatious litigation brought pursuant to General Statutes § 52-568 by the plaintiff, Charlotte Hungerford Hospital (hospital), against the named defendant, Kevin E. Creed, and his law firm, Newman & Creed, LLC, operating as Newman, Creed & Associates, as well as his former client, William Plante, Sr., individually and as the administrator of the estate of his deceased wife, Joanne Plante (decedent), in connection with two medical malpractice actions that Creed had brought against the hospital. The principal issue in this appeal involves the interplay between General Statutes § 52-190a (a), which governs medical malpractice actions, and the requirement of lack of probable cause in an action for vexatious litigation. More specifically, the principal issue involves the effect of the failure to file a proper opinion letter of a similar health care provider as required by § 52-190a (a) on the issue of probable cause to bring a medical malpractice action that is later challenged in an action for vexatious litigation pursuant to § 52-568.

The hospital appeals from the judgment of the court, Roche, J., denying its motion for summary judgment as to liability only and granting the cross motion for summary judgment in favor of Creed. The hospital claims that the court improperly denied its motion for summary judgment on liability and granted Creed’s cross motion for summary judgment in that (1) the court applied an improper test to determine probable cause, (2) Creed was collaterally estopped from denying the lack of probable cause, (3) an attorney who files an action without probable cause to believe that he has complied with the opinion letter provision of § 52-190a (a) or with the statute of limitations is liable for vexatious litigation, and (4) even if collateral estoppel is inapplicable, the facts known to Creed demonstrate that he lacked probable cause to bring an action against the hospital. We affirm the judgment as to the first action and reverse as to the second action.

The hospital brought this action for vexatious litigation in 2009. Ultimately, the parties filed cross motions for summary judgment, the hospital for liability only and Creed for complete summary judgment. The court denied the hospital’s motion and granted Creed’s motion. The hospital’s appeal followed.

The procedural history is quite complex. Much, but not all, of that history is explained by our Supreme Court in the appeal of the underlying medical malpractice action. See Plante v. Charlotte Hungerford Hospital, 300 Conn. 33, 12 A.3d 885 (2011). The first malpractice action was commenced on April 26, 2006, by William Plante, Sr., individually and as administrator of the estate of the decedent, and by Adam Plante and William Plante, Jr., other relatives of the decedent, alleging in the complaint that the decedent had committed suicide in May, 2004, as a result of the professional negligence of the hospital defendants, specifically, Eleanor Stutz, a psychiatrist, and Karen Nash, a clinical social worker employed by the hospital, and the individual defendants, Peter Bull and Brian Malone, both emergency room physicians practicing at the hospital. Id., 39. The Plantes claimed that the various defendants were negligent as a result of having prematurely discharged the decedent from the hospital’s emergency room, where she had presented on April 30, 2004, experiencing a severe mental health crisis, which led to her death by suicide on May 4, 2004. Id. Stutz, Nash and the hospital moved to dismiss the initial action pursuant to § 52-190a (c) on the ground that the Plantes had failed to attach to the complaint the opinion letter of a similar health care professional as required by § 52-190a (a). Id. On July 28, 2006, the Plantes filed an objection to the motion to dismiss, along with a certificate of good faith and an opinion letter purportedly from a qualified health care professional in a similar field. The Plantes represented that the report was obtained prior to initiating the action and was inadvertently not attached to the complaint at the time of service. Id. The opinion letter was, however, dated May 12, 2006, which was a date subsequent to the commencement of the initial action. The trial court, Alexander, J., granted the hospital defendants’ motion to dismiss the initial action on September 1, 2006. Id., 40.

Creed initiated a second malpractice action against the hospital defendants on December 29, 2006, more than two years and six months after the decedent’s death. Creed claimed that the statute of limitations was extended by the one year provision in General Statutes § 52-592, the accidental failure of suit statute, on the ground that the first malpractice action had been dismissed due to a “matter of form” within the meaning of § 52-592 (a). See Plante v. Charlotte Hungerford Hospital, supra, 300 Conn. 40. Creed attached to the second complaint, pursuant to § 52-190a (a), a certificate of good faith and an opinion letter, dated November 3, 2006, from a physician identified as a board certified psychiatrist licensed to practice in Connecticut and New York. After discovery and numerous revisions to the operative complaint, the court, Maraño, J., bifurcated the proceedings in order to try the accidental failure of suit claim separately from the malpractice claims. A trial on the accidental failure of suit claim was held before the court, Pickard, J., which heard testimony from Grace Williamson, the registered nurse who had authored the opinion letter used in the first malpractice action, and Creed. Id., 41-42.

On April 16, 2009, Judge Pickard issued a memorandum of decision in which he held that the first malpractice action had not been dismissed due to a “matter of form” within the meaning of § 52-592 and rendered judgment in favor of the hospital defendants. See Plante v. Charlotte Hungerford Hospital, Superior Court, judicial district of Litchfield, Docket No. CV-07-5001512-S (April 16, 2009) (47 Conn. L. Rptr. 581), aff'd, 300 Conn. 33, 12 A.3d 885 (2011). The court found that Williamson was not a similar health care provider as compared with any of the hospital defendants and was not qualified in any way to render an opinion about the alleged independent negligence of the hospital for facility or staffing inadequacies. Id. Regarding the accidental failure of suit statute, the court held that “[although § 52-592 is remedial in nature and must be interpreted broadly, the dismissal of the first action in this case cannot be found to be a matter of form. The decision to engage Nurse Williamson to review the file and to provide a written opinion of negligence is inexplicable. Even a cursory reading of § 52-190a would have revealed that Nurse Williamson did not qualify as a similar health care provider. . . . The plaintiffs lack of diligence in selecting an appropriate person or persons to review the case for malpractice can only be characterized as blatant and egregious conduct which was never intended to be condoned and sanctioned by the ‘matter of form’ provision of § 52-592.” (Citation omitted.) Id. After the court rendered judgment in favor of the hospital defendants in the second action, the individual defendants, Bull and Malone, filed a second motion to dismiss the first malpractice action pursuant to § 52-190a (c), claiming that Williamson was not a similar health care provider authorized to provide an opinion letter against them under § 52-190a (a). On May 20, 2009, Judge Pick-ard granted the motion to dismiss on that ground. See Plante v. Charlotte Hungerford Hospital, Superior Court, judicial district of Litchfield, Docket No. CV-06-500587-S (May 20, 2009), aff'd, 300 Conn. 33, 12 A.3d 885 (2011).

The Plantes in their various capacities filed consolidated appeals with the Supreme Court from the ensuing dismissals by the trial court of their medical malpractice claims against the various defendants, resulting in the Supreme Court’s opinion in Plante v. Charlotte Hungerford Hospital, supra, 300 Conn. 33. In that opinion, the court rendered two holdings that are pertinent to this appeal. First, construing § 52-592, the accidental failure of suit statute, the court concluded “that, when a medical malpractice action has been dismissed pursuant to § 52-190a (c) for failure to supply an opinion letter by a similar health care provider required by § 52-190a (a), a plaintiff may commence an otherwise time barred new action pursuant to the matter of form provision of § 52-592 (a) only if that failure was caused by a simple mistake or omission, rather than egregious conduct or gross negligence attributable to the plaintiff or his attorney.” Id., 46-47. Second, the court, applying that standard to the case before it, “agree [d] with the trial court’s determination that the plaintiffs’ lack of diligence in selecting an appropriate person or persons to review the case for malpractice can only be characterized as blatant and egregious conduct which was never intended to be condoned and sanctioned by the matter of form provision of § 52-592.” (Internal quotation marks omitted.) Id., 57. Accordingly, the court affirmed the judgments dismissing the Plantes’ malpractice actions. Id., 59.

Thereafter, the hospital brought this action for vexatious litigation pursuant to § 52-568. The essential elements of such a statutory vexatious litigation action are: (1) the defendant procured or initiated a prior lawsuit against the plaintiff; (2) the defendant did so without probable cause; and (3) the prior proceeding terminated in the plaintiffs favor. See Somers v. Chan, 110 Conn. App. 511, 542, 955 A.2d 667 (2008). The issue in this case involves the second element, namely, whether the prior malpractice actions that Creed brought against the hospital were commenced without probable cause to do so. The hospital claimed that Creed lacked probable cause to commence and prosecute the first action because he could not reasonably have believed that § 52-190a (a) had been complied with when he failed to attach an opinion letter from a similar health care provider. As to the second action, the hospital claimed that Creed lacked probable cause because he could not reasonably have believed that the dismissal of the first action was due to a “matter of form” within the meaning of § 52-592 (a) so as to extend the statute of limitations.

In their cross motions for summary judgment, the parties presented opposing claims. The hospital claimed that: (1) Creed is collaterally estopped from denying that he lacked probable cause to bring the two medical malpractice actions because Judge Pickard found that his conduct in failing to attach an opinion letter from a similar health care provider was blatant and egregious; (2) even if collateral estoppel does not apply, the undisputed facts demonstrate that Creed lacked probable cause to commence and prosecute the malpractice actions; and (3) the law firm defendant is vicariously liable for Creed’s tortious conduct. Creed claimed that: (1) collateral estoppel does not apply; and (2) the undisputed facts demonstrate that Creed had probable cause to commence and prosecute the two prior actions. Judge Roche issued a memorandum of decision on January 11, 2012.

The court first rejected the hospital’s collateral estop-pel claim. The court concluded that the issue of probable cause was not fully and fairly litigated in either the first or second malpractice actions, and, therefore, Creed was not collaterally estopped from asserting that he had probable cause to bring both actions.

With respect to the issue of probable cause, the court initially addressed the first action that was dismissed on the ground that the plaintiffs had failed to attach to the complaint the opinion letter of a similar health care professional as required by § 52-190a (a). The court rejected the hospital’s argument that “the facts known to Creed demonstrate that an objectively reasonable attorney would not have believed that Williamson was a similar health provider” within the meaning of § 52-190a (a), and that “[i]n asserting that the court can find a lack of probable cause based solely on the insufficiency of the written opinion letter, [the hospital] defines the scope of the court’s inquiry too narrowly.” Instead, relying on Creed’s undisputed affidavit, the court noted the following facts disclosed by Creed’s investigation prior to filing the action.

On the basis of his investigation, Creed believed that the decedent took herself to the hospital on April 30, 2004. The hospital record disclosed that at intake she was weak, speaking in low mumbling voices and had a high stress level. Her chief complaint was moderate to severe depression; she had a depressed affect and was tearful. She also had a history of psychiatric problems and depression. She was observed in the emergency room for eighteen hours but was not admitted. She was primarily evaluated and treated by Nash, whom Creed initially believed was an unlicensed social worker but whom Creed later learned was a licensed social worker who worked in the hospital once a month and at all other times performed mostly administrative work. Stutz never saw the decedent but relied on Nash’s representation to diagnose her and order medication. Nash observed that the decedent had increased stress, increased depression and multiple somatic complaints. The decedent also complained that she was overwhelmed by her children and had the state put them in foster care. She stated that she recently separated from her husband and was unable to sleep and eat as usual.

At least two years prior to this incident, the decedent had been in treatment at the behavioral health center of the hospital. Sixteen months prior to this incident, she had received prescriptions for numerous medications, among them sedatives, sleeping pills, antianxiety drugs and psychotropic drugs, including Trazodone. The decedent’s medical records indicated that she had trouble complying with her prescription regime. At the time of her eventual release during the April, 2004 incident, her prescriptions, including Trazodone, were increased. The warning signs associated with taking Trazodone include suicide with feelings of hopelessness, loss of appetite, withdrawing from family and friends and a change in sleeping habits.

The hospital records revealed that at the time of the decedent’s visit to the hospital on April 30, 2004, Stutz diagnosed her as psychotic, depressive with high anxiety and paranoid with psychosis developed to a point where the decedent was losing contact with reality. Prior to her release, the decedent asked to be admitted but was denied admission. She refused to sign the discharge form, which reveals an entry stating, “patient refuses to sign.” Later, someone crossed out this entry, and her name was written next to it. Upon her release from the hospital, her treatment providers told her to call for an appointment with the behavioral health center in two days and to see Stutz on May 4, 2004. On May 3,2004, the decedent committed suicide by ingesting the drugs prescribed to her by the hospital. She was found at home with empty bottles of the prescribed medications and a suicide note. The note stated: “I love my Children more than anything in the world. I don’t want to go on without them. I told the worker at the hospital this but they said there wasn’t any bed and discharged me. That’s why I did not want to sign the discharge papers.”

The court in the present action, drawing on this court’s decisions in Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 89 Conn. App. 459, 874 A.2d 266 (2005), aff'd, 281 Conn. 84, 912 A.2d 1019 (2007), and Hebrew Home & Hospital, Inc. v. Brewer, 92 Conn. App. 762, 886 A.2d 1248 (2005), concluded that it could not “say that the facts and evidence available to [Creed] at the time of the first action was instituted were such that no reasonable attorney would have found the claim worthy of litigation. Thus, the court finds that the defendants had probable cause to institute the first action.”

With respect to the second action, which had been brought pursuant to § 52-592 (a), the accidental failure of suit statute, the court first noted that, under Plante v. Charlotte Hungerford Hospital, supra, 300 Conn. 56, a plaintiff may bring a medical malpractice action pursuant to the matter of form provision of that statute only when the failure in the first action to provide an opinion letter that satisfies § 52-190a (a) was the result of mistake, inadvertence or excusable neglect, and not egregious conduct or gross negligence on the part of the plaintiff or his attorney. The court again noted this court’s decision in Hebrew Home & Hospital, Inc. v. Brewer, supra, 92 Conn. App. 768, in which a panel of this court stated: “[T]he objective standard which should govern the reasonableness of an attorney’s action in instituting litigation for a client is whether the claim merits litigation against the defendant in question on the basis of the facts known to the attorney when suit is commenced. The question is answered by determining that no competent and reasonable attorney familiar with the law of the forum would consider that the claim was worthy of litigation on the basis of the facts known by the attorney who instituted suit.” (Emphasis in original; internal quotation marks omitted.) Id.

The court in the present case applied this standard, and concluded that it could not say that no reasonable attorney would have brought the second action pursuant to the accidental failure of suit statute. This conclusion was based on the following factors. The first action was dismissed without a written decision and it was not until after the bifurcated trial in the second action that the court determined that Creed’s conduct was blatant and egregious. At the time he instituted the second action, no court had expounded on the nature of the first dismissal beyond the ground asserted in the hospital’s motion to dismiss, namely, the failure to attach a written opinion letter. Further, the trial court noted that our Supreme Court in Plante v. Charlotte Hungerford Hospital, supra, 300 Conn. 49, had characterized the question of whether the failure to supply an opinion letter in a medical malpractice action was a matter of form within the accidental failure of suit statute as “an issue of first impression for this court” and had stated “that § 52-592 (a) is ambiguous about what constitutes a matter of form . . . .” The trial court therefore concluded that there was no genuine issue of material fact as to whether Creed had probable cause to institute the second action.

Thus, the court, having concluded that Creed had probable cause to institute both actions, further concluded that the hospital could not establish the essential element of its vexatious litigation action against Creed, namely, the lack of probable cause. Accordingly, it denied the hospital’s motion for summary judgment as to liability and granted Creed’s motion for summary judgment in full.

“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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. ... On appeal, we must determine whether the legal conclusions reached by the trial court are legally and logically correct and whether they find support in the facts set out in the memorandum of decision of the trial court. . . . Our review of the trial court’s decision to grant [a party’s] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Koutsoukos v. Toyota Motor Sales, U.S.A., Inc., 137 Conn. App. 655, 658, 49 A.3d 302, cert. denied, 307 Conn. 933, 56 A.3d 714 (2012).

I

THE STANDARD FOR PROBABLE CAUSE

The hospital first claims that the denial of its motion for summary judgment was improper because the court applied an improper standard in evaluating whether Creed had probable cause to bring the actions against it. We agree, although we also conclude, for the reasons stated herein, that this conclusion is not determinative of this appeal.

In Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, supra, 89 Conn. App. 459 (Falls Church I), this court articulated a special test for probable cause in actions for vexatious litigation against attorneys. “[T]he objective standard which should govern the reasonableness of an attorney’s action in instituting litigation for a client is whether the claim merits litigation against the defendant in question on the basis of the facts known to the attorney when suit is commenced. The question is answered by determining that no competent and reasonable attorney familiar with the law of the forum would consider that the claim was worthy of litigation on the basis of the facts known by the attorney who instituted suit. . . . We are mindful that [Reasonable lawyers can differ, some seeing as meritless suits which others believe have merit, and some seeing as totally and completely without merit suits which others see as only marginally meritless. Suits which all reasonable lawyers agree totally lack merit—that is, those which lack probable cause—are the least meritorious of all meritless suits. Only this subgroup of meritless suits present no probable cause.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Id., 474. Thereafter, in Hebrew Home & Hospital, Inc. v. Brewer, supra, 92 Conn. App. 768, this court applied the same restrictive standard in a vexatious suit against an attorney.

Our Supreme Court, however, had granted certification to appeal in Falls Church I, and in its ensuing opinion rejected the restrictive standard articulated by this court. See Falls Church Group, Ltd. v. Tyler, Cooper & Alcorn, LLP, 281 Conn. 84, 102-103, 912 A.2d 1019 (2007) (Falls Church II). The Supreme Court adopted the traditional standard of probable cause applicable to both litigants and their attorneys: “[C]ivil probable cause constitutes a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it. . . . Although the reasonable attorney is substituted for the reasonable person in actions against attorneys, there is no reason to craft a different standard that essentially would immunize attorneys from vexatious litigation claims by requiring a claimant to prove that 100 out of 100 attorneys would have agreed that the underlying claim was without merit.” (Citations omitted; internal quotation marks omitted.) Id.

Our reading of the trial court’s memorandum of decision convinces us that, in deciding whether there was probable cause for Creed to institute the two malpractice actions, the trial court applied the more restrictive standard articulated by this court in Falls Church I, instead of the traditional standard reaffirmed by our Supreme Court in Falls Church II. With respect to the first action, the court quoted extensively from Falls Church I, and then, in reaching its conclusion, stated: “This court cannot say that the facts and evidence available to the defendants at the time the first action was instituted were such that no reasonable attorney would have found the claim worthy of litigation.” (Emphasis added.) Similarly, with respect to the second action, the court stated that “this court, once again, cannot say that no reasonable attorney would have instituted the second action pursuant to the accidental failure of suit statute.” (Emphasis added.)

It is true, as the hospital argues, that at some places in its memorandum of decision the court stated the traditional standard in its general discussions of probable cause, and that we should read an ambiguous memorandum of decision to support the court’s decision rather than to undermine it. See Zabaneh v. Dan Beard Associates, LLC, 105 Conn. App. 134, 142, 937 A.2d 706, cert. denied, 286 Conn. 916, 945 A.2d 979 (2008). Nonetheless, we do not see any real ambiguity in the memorandum of decision. At no point did the trial court cite Falls Church II, and we cannot escape the conclusion that it applied the Falls Church I standard.

This conclusion, however, does not end our inquiry. Whether there is probable cause in a given case is a question of law, upon which our scope of review is plenary. See Byrne v. Burke, 112 Conn. App. 262, 275, 962 A.2d 825, cert. denied, 290 Conn. 923, 966 A.2d 235 (2009); see also Falls Church II, supra, 281 Conn. 103-12. Thus, applying the proper standard, we must determine whether, as a matter of law, Creed lacked probable cause to institute either of the two malpractice actions. We address this issue in the context of the hospital’s second claim that the court improperly found that Creed was not collaterally estopped from denying that he lacked probable cause to commence both actions.

n

COLLATERAL ESTOPPEL

The hospital claims that Judge Pickard’s finding in the underlying litigation that the “plaintiffs’ lack of diligence in selecting an appropriate person or persons to review the case for malpractice can only be characterized as blatant and egregious conduct which was never intended to be condoned and sanctioned by the matter of form’ provision of § 52-592,” with which the Supreme Court agreed; see Plante v. Charlotte Hungerford Hospital, supra, 300 Conn. 57; is binding on Creed in the present vexatious litigation action, and collaterally estops him from asserting that he had probable cause to institute either the first or second malpractice action. We agree with the hospital that the finding is binding on Creed as to the second malpractice action. We conclude, however, that it does not collaterally estop him from asserting probable cause as a defense for the first action.

A

Privity

It is black letter law that, in order for a prior determination to be barred by the doctrine of collateral estop-pel, or issue preclusion, the party seeking to invoke the doctrine must establish that the issue or fact sought to be foreclosed was “actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim.” (Emphasis added; internal quotation marks omitted.) Coyle Crete, LLC v. Nevins, 137 Conn. App. 540, 548-49, 49 A.3d 770 (2012).

“Our Supreme Court has explained that [p]rivity is a difficult concept to define precisely. . . . There is no prevailing definition of privity to be followed automatically in every case. It is not a matter of form or rigid labels; rather it is a matter of substance. In determining whether privity exists, we employ an analysis that focuses on the functional relationships of the parties. Privity is not established by the mere fact that persons may be interested in the same question or in proving or disproving the same set of facts. Rather, it is, in essence, a shorthand statement for the principle that [the doctrines of preclusion] should be applied only when there exists such an identification in interest of one person with another as to represent the same legal rights so as to justify preclusion. ... A key consideration in determining the existence of privity is the sharing of the same legal right by the parties allegedly in privity.” (Citation omitted; internal quotation marks omitted.) Id., 561.

This court recently considered two cases involving whether an attorney was in privity with her client for the purposes of collateral estoppel. In Coyle Crete, LLC, this court declined to apply the doctrine of privity to an attorney because she had not established the requisite commonality of interest between her conduct and that of her client in the prior action in question. Id., 561-62. By contrast, in Somers v. Chan, supra, 110 Conn. App. 538, this court held the attorney in privity with his client because the attorney had been in control or substantially participated in the control of the presentation in the prior action on behalf of his client. Quoting from § 39 of 1 Restatement (Second), Judgments (1982), this court explained: “A person who is not a party to an action but who controls or substantially participates in the control of the presentation on behalf of a party is bound by the determination of issues decided as though he were a party. 1 Restatement (Second), [supra] § 39 .... The commentary to that section explains the rationale underlying that rule: A person who assumes control of litigation on behalf of another has the opportunity to present proofs and argument on the issues litigated. Given this opportunity, he has had his day in court and should be concluded by the result. . . . We agree with that proposition. . . .

“The commentary further explains that control, as that term is used in § 39, refers to the ability to exercise effective choice as to the legal theories and proofs to be advanced, as well as control over the opportunity to obtain review.” (Citation omitted; internal quotation marks omitted.) Somers v. Chan, supra, 110 Conn. App. 538-39. This court then cited and discussed with approval three cases in which courts, applying these principles, recognized that attorneys can be held in privity with their clients for purposes of collateral estop-pel. See Phelps v. Hamilton, 122 F.3d 1309 (10th Cir. 1997); see also United States v. Davis, 906 F.2d 829, 833 (2d Cir. 1990) (nonparty to action can be bound by determination of issues decided in that action if it “controls or substantially participates in the control of the presentation on behalf of a party”); Aranson v. Schroeder, 140 N.H. 359, 369, 671 A.2d 1023 (1995) (court recognized that when certain factors are met, attorney should be bound as if he were a party and subject to collateral estoppel).

On the basis of these principles, we conclude that Creed was in privity with his clients with respect to the relevant aspects of both malpractice cases. First, it is obvious that he shared a commonality of interest with the clients. It was in both their interests—clients and attorney—to present legally sufficient and correct pleadings and documents to the court to properly institute both such actions. Second, it is equally obvious that Creed, as the attorney, was in control of the precise pleadings and documents to present to the court to properly institute those actions. Indeed, it is difficult to conceive of a type of action other than a medical malpractice action in which the law requires particular allegations and documentation regarding an opinion letter of a similar health care provider, for which the attorney bringing the action is more responsible and in control. Therefore, because Creed was in privity with his clients, Judge Pickard’s finding of blatant and egregious conduct is binding on Creed.

B

First Action

We turn next, therefore, to the question of whether that finding collaterally estops Creed with respect to the first action. We conclude that it does not.

The hospital contends that Judge Pickard’s finding precludes Creed from relitigating, in the present action, the question of whether he had probable cause to bring the first action. In other words, the hospital contends that Creed’s blatant and egregious lack of diligence in selecting an appropriate person to review the case for malpractice, as § 52-190a (a) requires; see footnote 3 of this opinion; necessarily means that he lacked probable cause to bring the first action. Thus, the hospital argues that an opinion letter that meets the requirements of § 52-190a (a) is an essential element or part of the medical malpractice action provided by that section. We disagree.

“ [C] ollateral estoppel precludes a party from relitigat-ing issues and facts actually and necessarily determined in an earlier proceeding between the same parties or those in privity with them upon a different claim. . . . An issue is actually litigated if it is properly raised in the pleadings or otherwise, submitted for determination, and in fact determined. . . . An issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered. ... If an issue has been determined, but the judgment is not dependent upon the determination of the issue, the parties may relitigate the issue in a subsequent action. Findings on nonessential issues usually have the characteristics of dicta. ... To assert successfully the doctrine of issue preclusion, therefore, a party must establish that the issue sought to be foreclosed actually was litigated and determined in the prior action between the parties or their privies, and that the determination was essential to the decision in the prior case. . . . Those requirements serve to ensure fairness, which is a crowning consideration in collateral estoppel cases. (Citation omitted; internal quotation marks omitted.) Coyle Crete, LLC v. Nevins, supra, 137 Conn. App. 548-49.

Contrary to the hospital’s contention, the determination that the certificate of good faith required by § 52-190a (a), and supplied by Creed, was insufficient—even blatantly and egregiously so—does not equate to a determination that Creed lacked probable cause to bring the first action. The language and structure of the statute itself makes clear that the certificate does not occupy the field, so to speak, of the reasonable inquiry mandated by the statute. See General Statutes § 52-190a (a). To put it another way, as Creed does, under the language and structure of the statute, the certificate is not the end-all and be-all of the issue of probable cause to bring the first action.

The statute puts an obligation of precomplaint reasonable inquiry upon the attorney. It provides that no medical malpractice action shall be filed “unless the attorney . . . filing the action . . . has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant,” and that the attorney certify in the complaint “that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant . . . .” General Statutes § 52-190a (a). Thus, the attorney must, in the complaint, certify by pleading or otherwise, that he or she has made such a reasonable inquiry, and that the inquiry gave him or her the requisite good faith belief that there are grounds for the action. It also provides that, “[i]o show the existence of such good faith”; (emphasis added); “the claimant or the claimant’s attorney . . . shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c . . . that there appears to be evidence of medical negligence . . . General Statutes § 52-190a (a). Furthermore, the statute specifically provides that “[i]n addition to such written opinion, the court may consider other factors with regard to the existence of good faith.” (Emphasis added.) General Statutes § 52-190a (a). It then provides, moreover, that if, upon discovery, it is determined that such certificate was not made in good faith, the court “shall impose upon the person who signed such certificate [namely, the attorney who also signed the complaint] an appropriate sanction,” including “reasonable expenses . . . including a reasonable attorney’s fee” and possible disciplinary action by the “appropriate authority . . . .” General Statutes § 52-190a (a).

Consequently, this statutory language and structure make clear that the substantive obligation on the attorney to make a reasonable precomplaint inquiry and the subsequent obligation on him or her to file the written opinion of a similar health care provider are two distinct obligations that serve separate, although related, functions. The first is the substantive obligation to make a reasonable inquiry to determine that there are grounds for a good faith belief in the existence of a medical malpractice action. The second is the procedural obligation that the attorney secure and file a written opinion letter, which serves merely as evidence of “the existence of such good faith . . . .” General Statutes § 52-190a (a). But the statute also makes clear that the procedural obligation does not, in and of itself, determine the question of good faith or probable cause, because it specifically provides that the court may consider other factors in addition to the written opinion.

Furthermore, our Supreme Court recently clarified the procedural function and scope of the obligation to file the written opinion of a similar health care provider. It is true, as Creed argues, that § 52-190a (c) provides that “[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.” In Morgan v. Hartford Hospital, 301 Conn. 388, 401-402, 21 A.3d 451 (2011), the court, after reviewing all of the prior case law regarding the issue, held that although “the attachment of the written opinion letter of a similar health care provider is a statutory prerequisite to filing an action for medical malpractice . . . [t]he failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52-190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court. . . . The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter”; (internal quotation marks omitted); and is, therefore, waived if not timely challenged by a motion to dismiss filed within the thirty day time period of Practice Book § 10-32. If the failure to file any written opinion letter at all is merely a personal jurisdictional flaw that is waived if not timely challenged, then it follows that even a blatantly and egregiously insufficient opinion letter also constitutes merely a procedural personal jurisdictional insufficiency that cannot amount to a determination that the action was brought without probable cause to believe that it was warranted.

We conclude, therefore, that Judge Pickard’s finding of blatant and egregious conduct did not bar Creed from litigating in the present action the question of whether he had probable cause to bring the first malpractice action against the hospital. We reach a different conclusion, however, with respect to the second action.

C

Second Action

The second malpractice action was brought pursuant to § 52-592 (a), the accidental failure of suit statute. The issue in that case was not whether there had been probable cause to bring the first action; it was, instead, whether the Plantes, as the plaintiffs, could avail themselves of the accidental failure of suit statute because their first action had been dismissed for a “matter of form.” See General Statutes § 52-592 (a). In the underlying action involving the Plantes as the plaintiffs and the hospital as the defendant, the Supreme Court held that “a plaintiff may bring a subsequent medical malpractice action pursuant to the matter of form provision of § 52-592 (a) only when the trial court finds as a matter of fact that the failure in the first action to provide an opinion letter that satisfies § 52-190a (a) was the result of mistake, inadvertence or excusable neglect, rather than egregious conduct or gross negligence on the part of the plaintiff or his attorney.” (Footnote omitted.) Plante v. Charlotte Hungerford Hospital, supra, 300 Conn. 56. Applying that standard to the case before it, the court affirmed Judge Pickard’s finding that “the plaintiffs’ lack of diligence in selecting an appropriate person or persons to review the case for malpractice can only be characterized as blatant and egregious conduct which was never intended to be condoned and sanctioned by the matter of form provision of § 52-592.” (Internal quotation marks omitted.) Id., 57. Thus, our Supreme Court concluded that the Plantes were legally barred from instituting the second action.

Because we already have concluded that Creed was in privity with the Plantes in the second action, we also conclude that the doctrine of collateral estoppel bars him from relitigating whether he had probable cause to bring the second action. If he was legally barred from bringing the second action because of his blatant and egregious conduct in the first action, it is, therefore, obvious that he could not have had probable cause to bring the second action.

Putting this issue in terms of probable cause, moreover, leads to the same conclusion. As our Supreme Court has stated: “[T]he legal idea of probable cause is a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.” (Internal quotation marks omitted.) Falls Church II, supra, 281 Conn. 94-95. We conclude that blatant and egregious conduct in bringing the second malpractice action precludes, as a matter of law, the concomitant conclusion that the person who engaged in that conduct nevertheless was exercising ordinary caution, prudence and judgment in bringing that action.

Creed argues that in order for collateral estoppel to apply, there must have been an explicit finding by the previous court that he lacked probable cause and without such a finding, the issue cannot be considered to have been fully and fairly litigated. We disagree. We reiterate that for the purposes of collateral estoppel, “[a]n issue is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been validly rendered.” (Internal quotation marks omitted.) Coyle Crete, LLC v. Nevins, supra, 137 Conn. App. 549.

Creed characterizes the probable cause inquiry before the court as whether “on the basis of the facts known by the [attorney], a reasonable attorney familiar with Connecticut law would believe he or she had probable cause to bring the lawsuit.” (Internal quotation marks omitted.) Embalmers’ Supply Co. v. Giannitti, 103 Conn. App. 20, 35, 929 A.2d 729, cert. denied, 284 Conn. 931, 934 A.2d 246 (2007). As previously discussed, our Supreme Court, in rendering its judgment that the second action was legally barred, necessarily determined that Creed’s actions were unreasonable when it concluded that the accidental failure of suit statute did not apply due to Creed’s own prior blatant and egregious conduct. Plante v. Charlotte Hungerford Hospital, supra, 300 Conn. 44 (“[t]he trial court found that the plaintiffs ‘had not made a reasonable precomplaint inquiry at the time the first action was commenced . . . because [they] had not received an opinion from a similar health care provider’ ”). It follows that this conclusion precludes Creed from relitigating whether he believed he had reasonable grounds to commence the second action.

Thus, we disagree with the court in the present action and Creed that he had probable cause to bring the second action because it was not until the conclusion of the bifurcated trial before Judge Pickard in the second action that his conduct would be characterized as blatant and egregious, and that it was not until Plante v. Charlotte Hungerford Hospital, supra, 300 Conn. 57, that our Supreme Court decided that a matter of form did not include such conduct. Although the legal standard for a matter of form under § 52-592, as applied to the failure to supply a proper opinion letter under § 52-190a (a), may not have been conclusively determined until that Supreme Court decision, Creed certainly was aware of the facts of his conduct during the entire time period, and should have been aware of this court’s decision in Rosario v. Hasak, 50 Conn. App. 632, 637-38, 718 A.2d 505 (1998), in which this court stated that prior egregious and blatant conduct precluded access to the accidental failure of suit statute. Id., 639; see also Pepitone v. Serman, 69 Conn. App. 614, 620, 794 A.2d 1136 (2002) (plaintiff could not avail himself of § 52-592 when his actions that led to dismissal of his case did not constitute “mere accident or simple negligence”). In sum, we conclude that the issue of probable cause was necessarily determined by Judge Pickard in the prior malpractice action and, therefore, the court improperly rendered summary judgment in favor of Creed as to the second action.

The judgment is reversed only as to the granting of the defendant’s motion for summary judgment as to the issue of probable cause in the second action and the case is remanded with direction to grant the plaintiffs motion for summary judgment as to the second action and for further proceedings according to law. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       General Statutes § 52-568 provides: “Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others, or asserts a defense to any civil action or complaint commenced and prosecuted by another (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages.”

       The underlying litigation, upon which the present action for vexatious litigation is based, involved two medical malpractice claims against the hospital commenced by Attorney Kevin E. Creed on behalf of William Plante, Sr. Creed’s law firm is being sued in the present action under a theory of vicarious liability for Creed’s conduct. Prior to the judgment at issue in this appeal, the trial court granted the hospital’s motion to enter a default against Plante, who also is a defendant in this action, for failure to plead. Because the trial court treated the case as one principally between the hospital and Creed, with the law firm defendant merely vicariously liable for Creed’s conduct, and because the parties have briefed and argued the case on the same basis, we do so as well. Therefore, we refer to Plante by name and simply refer to Creed by name as the defendant, although all that we say as to Creed applies to the law firm defendant as well.

       General Statutes § 52-190a (a) provides in relevant part: “No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death ... in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint . . . shall contain a certificate of the attorney or party filing the action . . . that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant .... To show the existence of such good faith, the claimant or the claimant’s attorney . . . shall obtain a written and signed opinion of a similar health care provider . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion. . . .”

       Ordinarily, a plaintiff may not appeal from the denial of a motion for summary judgment, for lack of a final judgment; see, e.g., Hopkins v. O’Connor, 282 Conn. 821, 828, 925 A.2d 1030 (2007) (“[t]he denial of a motion for summary judgment ordinarily is an interlocutory ruling and, accordingly, is not a final judgment for purposes of appeal”); here, however, the parties filed cross motions and the court granted the defendant’s motion. This court, therefore, has appellate jurisdiction to consider the propriety of both rulings. See Hannaford v. Mann, 134 Conn. App. 265, 267 n.2, 38 A.3d 1239 (“if parties file cross motions for summary judgment and the court grants one and denies the other, this court has jurisdiction to consider both rulings on appeal”), cert. denied, 304 Conn. 929, 42 A.3d 391 (2012).

       The Plantes filed, with leave of the court pursuant to Practice Book § 10-60, an amended complaint in the initial action against the individual defendants, Bull and Malone, that included a good faith certificate and an opinion letter purportedly from a similar health care provider dated April 10,2006, with the provider’s name and qualifications redacted. The individual defendants moved to dismiss the initial malpractice action on the ground that the Plantes had failed to attach an opinion letter from a similar health care provider. The trial court, Brunetti, J., denied that motion to dismiss on January 8, 2007. See Plante v. Charlotte Hungerford Hospital, supra, 300 Conn. 40.

       General Statutes § 62-692 (a) provides in relevant part: “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form . . . the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action . . . for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”

       See footnote 1 of this opinion.

       There is no dispute in the present case that the prior action terminated in the hospital’s favor.

       The law firm defendant does not contest that Creed was acting within the scope of his authority on behalf of the law firm.

       Indeed, we note that the statute does not use the phrase “probable cause” to bring the action; instead, it uses the different phrase “good faith belief that grounds exist for the action.” Nonetheless, we assume without deciding, as the parties appear to do as well, that the two phrases have essentially the same meaning. See Byrne v. Burke, supra, 112 Conn. App. 274-75 (“Probable cause is the knowledge of facts, actual or apparent, strong enough to justify a reasonable man in the belief that he has lawful grounds for prosecuting the defendant in the manner complained of. . . . Thus, in the context of a vexatious suit action, the defendant lacks probable cause if he lacks a reasonable, good faith belief in the facts alleged and the validity of the claim asserted.” [Internal quotation marks omitted.]).

       Practice Book § 10-32 provides: “Any claim of lack of jurisdiction over the person or improper venue or insufficiency of process or insufficiency of service of process is waived if not raised by a motion to dismiss filed in the sequence provided in Sections 10-6 and 10-7 and within the time provided by Section 10-30.”
      Practice Book § 10-30 provides in relevant part: “Any defendant, wishing to contest the court’s jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance. . . .”

       The hospital also claims that, even if collateral estoppel does not apply, the “facts known to Creed demonstrate that he lacked probable cause.” Specifically, the hospital argues that, as to the first malpractice action, the facts known to Creed “establish that an objectively reasonable attorney would not have believed that Williamson was a ‘similar health care provider’ ” under § 52-190a (a). Thus, this argument is premised solely on the notion that the presence or absence of probable cause under § 52-190a (a) is governed by the sufficiency of the opinion letter, a notion that we already have rejected. We therefore reject this claim as well.

       See footnote 6 of this opinion.

       Our Supreme Court recently reaffirmed this standard in Santorso v. Bristol Hospital, 308 Conn. 338, 63 A.3d 940 (2013). The court held that, under Plante v. Charlotte Hungerford Hospital, supra, 300 Conn. 33, the plaintiffs’ counsel’s failure to file a good faith certificate and opinion letters in the first action was not the result of mistake, inadvertence, or excusable neglect and, thus, the first action, which was stricken for failure to comply with the requirements of § 52-190a (a), was not defeated for matter of form within the meaning of the accidental failure of suit statute. Id., 366-67.

       The hospital also argues that, as to the second action, even if collateral estoppel does not apply, the facts known to Creed demonstrate that an objectively reasonable attorney would not have believed that the termination of the first action was merely a “matter of form” within the meaning of the accidental failure of suit statute. Because we have already decided, in the hospital’s favor, that Creed is barred by the doctrine of collateral estoppel from relitigating the issue of probable cause regarding the second action, we need not consider this claim.


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    SANDRA KONESKY v. POST ROAD ENTERTAINMENT ET AL.
    (AC 34617)
    DiPentima, C. J., and Gruendel and Beach, Js.

      Argued February 7
    officially released July 16, 2013

      Jan C. Trendowski, with whom was Gregory A. Allen, for the appellant (substitute defendant).

      John J. Kennedy, Jr., with whom were Edward L. Walsh and, on the brief, Jennifer Antognini-O’Neill, for the appellee (plaintiff).
   Opinion

BEACH, J.

The substitute defendant Hula’s New Haven, LLC, appeals from the judgment of the trial court, rendered after a jury trial, awarding damages to the plaintiff, Sandra Konesky. The defendant claims that the trial court improperly construed and applied the mode of operation rule. We agree and, accordingly, reverse the judgment of the trial court.

The following facts, which reasonably could have been found by the jury, are relevant to the resolution of this appeal. On the evening of January 11, 2008, the plaintiff and her husband, Stanley Konesky, attended an event organized by the Walter Camp Football Foundation at Hula Hank’s Island Bar (Hula Hank’s), a nightclub in New Haven owned and operated by the defendant. The plaintiffs husband was a former president of the foundation, which each year honors college football players. The honored players spend a long weekend in Connecticut and participate in a variety of activities, ranging from visits to children’s hospitals to a black-tie dinner. The Friday evening event is typically a party at a nightclub, which is attended by the players, foundation members and officers, and members of the general public. For several years, including 2008, this event was held at Hula Hank’s.

The Walter Camp event filled Hula Hank’s nearly to its 650 person capacity. As was its practice at events of this scale, the defendant supplemented its three permanent bars by stationing several “beer tubs” at additional locations throughout the venue, where patrons could buy a bottle or can of beer. Large plastic tubs were filled with ice and beer and replenished as the beer sold out. Each tub was set up on top of a large speaker box. A server stood on top of the speaker box and handed beers to patrons below.

One of the beer tubs was positioned near a booth where the plaintiff and her husband had sat down shortly after arriving at Hula Hank’s. Their booth was one step up from the club’s wooden dance floor. After sitting at the booth for one-half hour or less, the plaintiff got up to use the restroom. After taking a couple of steps, she slipped and fell. The plaintiff immediately felt intense pain in her shoulder and foot, and could not get up off the floor by herself. She noticed that her pants were wet and saw water on the floor near the beer tub area, on top of the step. The plaintiff was taken by ambulance to Yale-New Haven Hospital, where she was diagnosed with a fractured shoulder and foot. She needed surgery to repair her fractured foot; her recovery required that she stay off her foot for eight to twelve weeks.

The plaintiff thereafter commenced this negligence action against the defendant, alleging, among other things, that the step from the booth area to the dance floor was defective, that the defendant had caused the floor area where the plaintiff had fallen to be slippery and hazardous, and that the defendant’s chosen method of selling beer from the ice filled tubs was an inherently hazardous means of serving drinks. Following a jury trial, the plaintiff was awarded a total of $292,500 in damages, which reflected a 10 percent reduction of the award for the plaintiffs comparative negligence. This appeal followed. Additional facts and procedural history will be set forth as necessary.

H-1

The plaintiff preliminarily asserts that the general verdict rule applies in this case. She argues that if either of the defendant’s two claims on appeal fails, we must affirm the judgment. Specifically, the plaintiff contends that her one count complaint, which sounded in negligence, asserted two distinct legal theories of recovery: the first, relating to the allegedly defective step, based on traditional premises liability law, and the second, relating to the operation of the beer tubs, based, in part, on the “mode of operation” doctrine. Because interrogatories were not submitted to the jury distinguishing between these two purportedly distinct theories, the plaintiff claims that there is no way of discerning on which basis the jury found in her favor. We disagree with the assertion that the plaintiffs allegations established two separate legal bases for recovery for purposes of the general verdict rule.

“In a typical general verdict rule case, the record is silent regarding whether the jury verdict resulted from the issue that the appellant seeks to have adjudicated.” Curry v. Burns, 225 Conn. 782, 790, 626 A.2d 719 (1993). “Under the general verdict rule, if a jury renders a general verdict for one party, and [the party raising a claim of error on appeal did not request] interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. . . . Thus, in a case in which the general verdict rule operates, if any ground for the verdict is proper, the verdict must stand; only if every ground is improper does the verdict fall.” (Internal quotation marks omitted.) Tetreault v. Eslick, 271 Conn. 466, 471, 857 A.2d 888 (2004).

Even in a case with a single count complaint, the general verdict rule applies when “reliance is placed upon grounds of action . . . which are distinct, not because they involve specific sets of facts forming a part of the transaction but in the essential basis of the right replied upon . . . .” (Internal quotation marks omitted.) Curry v. Burns, supra, 225 Conn. 794. Thus, as our Supreme Court noted in Curry, the general verdict rule would apply in a case in which a single count of a complaint alleged both wanton misconduct and negligence. Id. The applicability of the general verdict rule “does not depend on the niceties of pleading but on the distinctness and severability of the claims and defenses raised at trial.” (Internal quotation marks omitted.) Id., 787.

The various specifications of negligent conduct alleged by the plaintiff in her complaint—including the two at issue on appeal—all sound in premises liability. See Duncan v. Mill Management Co. of Greenwich, Inc., 308 Conn. 1, 3-5, 60 A.3d 222 (2013); Fisher v. Big Y Foods, Inc., 298 Conn. 414, 419, 3 A.3d 919 (2010) (explaining that mode of operation rule provides “an exception to the notice requirement of traditional premises liability doctrine”); Kelly v. Stop & Shop, Inc., 281 Conn. 768, 797, 918 A.2d 249 (2007) (Zarella, J., concurring) (“the mode of operation rule . . . and traditional premises liability law require proof of essentially the same elements”). Thus, a plaintiff who attempts, as here, to prevail under either common-law premises liability principles or the mode of operation rule is seeking to vindicate the same “essential right”; Curry v. Burns, supra, 225 Conn. 794; even though she may allege somewhat different specifications of negligent conduct to advance each claim. See Green v. H.N.S. Management Co., 91 Conn. App. 751, 756, 881 A.2d 1972 (2005) (general verdict rule “does not apply if a plaintiff submits to the jury several different specifications of negligent conduct in support of a single cause of action for negligence”), cert. denied, 277 Conn. 909, 894 A.2d 990 (2006).

The general verdict rule, then, does not apply and we are not precluded from reversing the judgment in favor of the plaintiff if we conclude that any ground on which the jury could have based its verdict was improper. See id., 757.

II

We next address the defendant’s claim that the court misconstrued the mode of operation rule. The defendant contends that the mode of operation doctrine was erroneously applied for two reasons: (1) the particular business operation at issue was not self-service in nature, and (2) the only mode of operation that the plaintiff identified as being peculiar and inherently hazardous was the service of bottles and cans of beer from ice filled tubs, which, the defendant argues, is not significantly different from other means of performing this essential nightclub function.

The following additional procedural history is relevant to the defendant’s claim. The plaintiff alleged in her amended complaint that the defendant operated a “portable bar on the floor and step area in such a manner that it was foreseeable that the defendant’s employees and patrons would spill or drop beverages, ice, water and drinks as they were working, dancing or congregating, thereby creating a dangerous condition in the immediate vicinity of the [portable] bar . . . .” The defendant filed a motion in limine to preclude the introduction of evidence related to the mode of operation theory of premises liability. The court heard arguments on the issue and denied the defendant’s motion. The court agreed with the plaintiff that the use of the portable bars constituted a “particular method of operation within a bar that creates an inherently foreseeable heightened risk . . . .” The court stated that its ruling was consistent with our Supreme Court’s holding in Fisher v. Big Y Foods, Inc., supra, 298 Conn. 414.

Whether the trial court properly construed and applied the mode of operation rule is a question of law over which we exercise plenary review. See id., 424. The mode of operation rule is a relatively recent development in Connecticut negligence law. In Kelly v. Stop & Shop, Inc., supra, 281 Conn. 791, Connecticut’s seminal mode of operation case, our Supreme Court held that “a plaintiff establishes a prima facie case of negligence upon presentation of evidence that the mode of operation of the defendant’s business gives rise to a foreseeable risk of injury to customers and that the plaintiffs injury was proximately caused by an accident within the zone of risk.” The crux of the analysis is whether the premises owner’s “design or operation . . . created a foreseeable risk of harm, thus retaining the causal link between the actions of the premises owner in designing and operating [its business] and the injured invitee.” Id., 795 (Zarella, J., concurring).

The mode of operation rule was adopted in a slip and fall case that occurred at a self-service salad bar within a supermarket. See id., 768 (majority opinion). Our Supreme Court explained that the rule “evolved in response to the proliferation of self-service retail establishments,” in which patrons are encouraged “to obtain for themselves from shelves and containers the items they wish to purchase, and to move from one part of the store to another . . . thus increasing the risk of droppage and spillage.” (Internal quotation marks omitted.) Id., 778. In such an environment, proving that the premises owner, through its employees, had actual or constructive notice of a specific unsafe condition may prove “insuperable.” Id., 788. Moreover, an unattainable notice requirement would do little to incentivize businesses to implement reasonable policies designed to prevent injuries “caused by the foreseeable conduct of . . . customer[s] . . . .” Id., 789. When the mode of operation rule applies, the plaintiff need not prove notice of the specific hazardous condition that caused his injury if he can show that the business engaged in a deliberate method of operation which would make the frequent occurrence of similar conditions reasonably foreseeable. See Fisher v. Big Y Foods, Inc., supra, 298 Conn. 419 n.10.

This altered notice inquiry under the mode of operation rule has been justified on two theories. First, when the owner of the premises increases the risk of “dangerous, transitory conditions” by the way particular aspects of the business have been designed, the owner may fairly be deemed to have constructive notice of those conditions when they become manifest. Kelly v. Stop & Shop, Inc., supra, 281 Conn. 780. Second, the premises owner may be imputed to have actual knowledge of the hazards that it has had a hand in creating by purveying merchandise or food in a manner that increases the likelihood of such hazards arising. Id., 781. Either way, “the fundamental rationale underlying the rule is the same: Because the hazard is a foreseeable consequence of the manner in which the business is operated, the business is responsible for implementing reasonable measures to discover and remedy the hazard.” Id.

The rule’s application effects a burden shifting. Upon the plaintiffs prima facie showing of a negligent mode of operation, the burden shifts to “[t]he defendant [to] rebut the plaintiffs evidence by producing evidence that it exercised reasonable care under the circumstances.” Id., 791. The burden then shifts back to the plaintiff to “establish that those steps taken by the defendant to prevent the accident were not reasonable under the circumstances.” (Internal quotation marks omitted.) Fisher v. Big Y Foods, Inc., supra, 298 Conn. 420 n.13. The ultimate burden of proof rests with the plaintiff. Kelly v. Stop & Shop, Inc., supra, 281 Conn. 792.

“The mode-of-operation rule is of limited application because nearly every business enterprise produces some risk of customer interference. If the mode-of-operation rule applied whenever customer interference was conceivable, the rule would engulf the remainder of negligence law. A plaintiff could get to the jury in most cases simply by presenting proof that a store’s customer could have conceivably produced the hazardous condition. For this reason, a particular mode of operation only falls within the mode-of-operation rule when a business can reasonably anticipate that hazardous conditions will regularly arise. ... A plaintiff must demonstrate the foreseeability of third-party interference before [a corut] will dispense with traditional notice requirements.” (Citations omitted.) Chiara v. Fry's Food Stores of Arizona, Inc., 152 Ariz. 398, 400-401, 733 P.2d 283 (1987).

In Fisher v. Big Y Foods, Inc., supra, 298 Conn. 437, our Supreme Court expressed concern about an overly expansive application of the mode of operation rule and recognized limits on its application. In that case, a shopper at a Big Y supermarket slipped and fell in a puddle of syrupy liquid. Id., 417. The source of the liquid was not definitively ascertained because there was no broken container in the vicinity of the puddle. Id., 417 n.4. Video surveillance footage showed that the aisle in which the puddle was located had been swept seven minutes prior to the shopper’s fall. Id., 417. Rather than attempt to prove that the defendant store owner had actual or constructive knowledge of the apparent spill, the plaintiff shopper prevailed at trial by successfully invoking the mode of operation theory of premises liability as articulated in Kelly. Id., 420.

The Supreme Court reversed the judgment, rejecting the proposition that “self-service merchandising itself’ can be a negligent mode of operation. Id., 424. If that were so, the court reasoned, every aspect of a modem supermarket would be rendered a “ ‘zone of risk’ due to the readily established fact that merchandise, as a general matter, sometimes falls and breaks.” Id. The Fisher court further asserted that it would be unsound to characterize as inherently hazardous “a modem supermarket’s only method of operation”—that is, permitting customers to serve themselves. (Emphasis in original.) Id., 438. This would be similar to charging a movie theatre with employing a negligent method of operating by showing movies in a darkened space. Id.

The court in Fisher suggested that the mode of operation rule is applied appropriately only when a business employs “a more specific method of operation within” the general business environment that is distinct from the ordinary, inevitable way of conducting the sort of commerce in which the business is engaged. (Emphasis in original.) Id., 427. Thus, a supermarket that sells groceries in the usual self-service fashion is not engaged in a specific “mode of operation”; it is simply in the business of selling groceries. See id., 423 (“the mode of operation rule . . . does not apply generally to all accidents caused by transitory hazards in self-service retail establishments, but rather, only to those accidents that result from particular hazards that occur regularly, or are inherently foreseeable, due to some specific method of operation employed on the premises”). In order to invoke the mode of operation rule, and to satisfy her burden of establishing a prima facie case, then, the plaintiff must make an “additional showing that a more specific method of operation within a . . . retail environment gave rise to a foreseeable risk of a regularly occurring hazardous condition similar to the particular condition that caused the injury.” (Emphasis in original.) Id., 427. Merely describing the customary way of conducting a particular kind of business is not enough.

A

We first address the defendant’s claim that the mode of operation rule applies only to self-service businesses, or businesses that include self-service components. Although Kelly and Fisher both resolved slip and fall cases that occurred in contemporary self-service supermarkets, there is no reason for limiting application of the doctrine to only those scenarios. The dispositive issue is not the presence of self-service, but whether “the operating methods of a proprietor are such that dangerous conditions are continuous or easily foreseeable . . . .” (Internal quotation marks omitted.) Kelly v. Stop & Shop, Inc., supra, 281 Conn. 787. Self-service, in some circumstances, may present a situation in which the proprietor’s “operating methods” enhance the risk of recurring dangerous conditions brought about by third party interference; Chiara v. Fry’s Food Stores of Arizona, Inc., supra, 152 Ariz. 401; but it logically is not the only business method that can have such an effect. Moreover, the Supreme Court in Fisher cited to cases from other jurisdictions where the mode of operation rule has been applied to myriad methods of operation apart from self-service retail enterprises. See Fisher v. Big Y Foods, Inc., supra, 298 Conn. 430. Therefore, the defendant’s first challenge to the applicability of the mode of operation rule is unavailing.

B

The defendant additionally challenges the court’s conclusion that the sale of beer from the ice filled tubs constituted a “particular method of operation within a bar that create [d] an inherently foreseeable heightened risk . . . .” The defendant specifically contends that the only “mode of operation” advanced by the plaintiff is the service of iced beer at a nightclub. Because the method of service utilized at Hula Hank’s is not appreciably different from the methods necessarily employed by all bars that serve cold beverages, the defendant argues that the mode of operation rule is inapplicable. The plaintiff counters that the mode of operation rule applies to the defendant’s “chosen method of selling dripping wet beers from beer tubs.” She identifies several aspects of the beer tub method of service that supposedly distinguish it from more refined means of selling beer, namely, that the ice filled tubs were uninsulated; that they were elevated on speaker boxes, which required the server to hand the drink to the patron who stood several feet below; and that the beer was not wiped down before it was given to a customer. According to the plaintiff, this creates the risk that patrons will “congregate [near the tubs] or move about the premises with the wet beer bottles or cans, thus causing water to pool on the floor . . .

We agree with the defendant that, although the plaintiff has gone to great lengths to distinguish the method of serving beer at issue here, when stripped of the embellishment, she has merely described the transaction that always takes place when a patron orders a bottle of beer at a bar, a nightclub, or a wedding reception. The bottle is removed by a server, either from a refrigerator or a cooler filled with ice, and handed to the patron, who is separated from the server by a bar or other service area. The service of cold drinks will inevitably result in slippery surfaces, as drinks are spilled or condensation from drinks accumulates, but this will happen regardless of whether a nightclub chooses to serve beer from a “beer tub” propped on a speaker or from behind a more traditional bar. Put simply, a nightclub does not create liability under the mode of operation doctrine simply by serving chilled beer. Cf. Fisher v. Big Y Foods, Inc., supra, 298 Conn. 438 (“a modem supermarket’s only method of operation is to place items on shelves for customer selection and removal”; as such, that method of commerce cannot be considered negligent [emphasis in original]). Just as theatres must dim their lights to show movies, a nightclub likely could not do business at all if it could not serve cold drinks. See Kearns v. Horsley, 144 N.C. App. 200, 205, 552 S.E.2d 1, review denied, 354 N.C. 573, 559 S.E.2d 179 (2001).

Moreover, if we were to accept that the defendant’s service of beer constituted an inherently hazardous mode of operation, virtually the entire nightclub would become a “zone of risk” simply because drinks do sometimes spill or otherwise produce slippery surfaces. See Fisher v. Big Y Foods, Inc., supra, 298 Conn. 424. “Accordingly, the requirement of establishing that an injury occurred within some ‘zone of risk’ essentially would be rendered superfluous.” Id. The result would be that any slip and fall on a wet surface, no matter how briefly the slippery condition existed, would shift the burden to the nightclub’s owners to show that they had acted reasonably. This would be inconsistent with the Supreme Court’s admonition that the mode of operation rule is meant to be a narrow exception to the notice requirements under traditional premises liability law. See id., 437.

The application of the mode of operation rule in this case was flawed in another respect. The only customer interference alleged by the plaintiff was that patrons who purchased beer from the tubs would move around the bar, “carrying, consuming and discarding the wet beer bottles or cans . . . .” These allegations—if they amount to customer interference at all—fail for the same reason as the allegations with respect to the operation of the tub. If the mode of operation rule could be satisfied by bar patrons carrying wet glasses, there would be no effective limitation on the application of the rule.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Hula’s New Haven, LLC, was substituted as the defendant in this action for the original named defendants, Post Road Entertainment and Club, LLC. We therefore refer in this opinion to Hula’s New Haven, LLC, as the defendant.

       The defendant also claims that the court improperly allowed evidence of subsequent remedial measures. Because we reverse the judgment on the defendant’s mode of operation claim, we need not reach this second claim.

       See footnote 1 of this opinion.

       The court had heard largely undisputed evidence regarding the logistics of operating the beer tubs prior to ruling. We rely on the same facts.

       The Supreme Court noted in Kelly that there is a “close relationship between a defendant’s affirmative act of negligence, which obviates the need for a business invitee to establish that the defendant had actual or constructive notice of a dangerous condition on the premises, and a defendant’s liability to a business invitee under the mode of operation rule, pursuant to which notice of the dangerous condition also is unnecessary.” Kelly v. Stop & Shop, Inc., supra, 281 Conn. 785 n.6.
      This “close relationship” between the two theories of liability is demonstrated in the present case. The jury was instructed that it could hold the defendant liable if it found “that the defendant created the unsafe condition of water on the floor by [its] actions” with respect to the service from the beer tub or if it found that the plaintiffs injuries “were caused by the mode of operation by which the defendant operated its business . . . .” At trial, in support of her theory that the defendant had affirmatively created the hazardous condition, the plaintiff argued that the defendant “created the defect by taking bottles of beer out of [the tub] that were in ice and water.” In her appellate brief, the plaintiff argues that the mode of operation rule was properly invoked, in part, because of the “defendant’s chosen method of selling dripping wet beers from beer tubs.” If this were so, there would be no need to invoke the mode of operation rule.

       The Supreme Court in Kelly quoted with approval the Colorado Supreme Court’s cogent explication of why, in certain situations, the notice requirements of common-law premises liability should give way to a different inquiry: “[T]he basic notice requirement springs from the [notion] that a dangerous condition, when it occurs, is somewhat out of the ordinary. . . . In such a situation, the storekeeper is allowed a reasonable time, under the circumstances, to discover and correct the condition, unless it is the direct result of his (or his employees’) acts. However, when the operating methods of a proprietor are such that dangerous conditions are continuous or easily foreseeable, the logical basis for the notice requirement dissolves.” (Internal quotation marks omitted.) Kelly v. Stop & Shop, Inc., supra, 281 Conn. 787, quoting Jasko v. F. W. Woolworth Co., 177 Colo. 418, 420-21, 494 P.2d 839 (1972).

        Chiara was cited with approval by our Supreme Court in Kelly v. Stop & Shop, Inc., supra, 281 Conn. 782, 792.

       In this regard, compare Fisher with Wollerman v. Grand Union Stores, Inc., 47 N.J. 426, 429, 221 A.2d 513 (1966) (mode of operation rule applied where “green beans are sold from open bins on a self-service basis”), and Chiara v. Fry’s Food Stores of Arizona, Inc., supra, 152 Ariz. 398 (mode of operation rule applied where creme rinse spill in a supermarket caused plaintiffs injury). Specifically, in some jurisdictions, an entire supermarket seemingly can be considered a “zone of risk.”

       This idea was developed more thoroughly by the North Carolina Court of Appeals in Kearns v. Horsley, 144 N.C. App. 200, 552 S.E.2d 1, review denied, 354 N.C. 573, 559 S.E.2d 179 (2001), which was discussed with approval in Fisher v. Big Y Foods, Inc., supra, 298 Conn. 438-39. In Kearns, the court rejected the application of the mode of operation rule where a moviegoer tripped over tom carpeting in a darkened theatre. The court reasoned that showing movies in a dark space is a “theatre’s only method of operation and as such, the theatre cannot be considered negligent but instead, its patrons must be considered to have assumed the risk in order to take part in the activity provided.” (Emphasis in original.) Kearns v. Horsley, supra, 205. The court further observed that “the darkening of the area within the theatre where the movie is being shown, is an operation of practicality and eompl[ies] with ordinarily used standards of care in [the] particular activity].” (Internal quotation marks omitted.) Id. Thus, the mode of operation rule did not apply and, in order to prevail, the plaintiff had to show that the theatre operator had actual or constructive notice of the tear in the carpeting. Id., 207.

       The Supreme Court in Fisher v. Big Y Foods, Inc., supra, 298 Conn. 428, did observe that many mode of operation cases “involved produce displays or other instances of unwrapped and/or ready to eat food that customers were encouraged to handle . . . .” Indeed, the court stated that “[t]he mode of operation rule most typically is applied in such circumstances.” Id., 428 n.22.

       These aspects of the plaintiffs mode of operation claim, related to the allegedly careless service of beer from the tubs, assert affirmative negligent acts by employees of the defendant. In other words, the creation of hazardous, wet conditions in the vicinity of the beer tubs does not depend on further actions by customers. It is not clear under Connecticut law whether recurring, affirmative negligent acts by employees can be the basis for a mode of operation claim. The justification proffered for adopting the mode of operation rule in Kelly, however, suggests that third party interference is a necessary component of such a claim. See Kelly v. Stop & Shop, Inc., supra, 281 Conn. 786-90. Fisher forecloses application of the rule to these facts, and, in any event, because there is no requirement under traditional negligence law principles for a plaintiff to prove notice where the defect is directly caused by the owners of the premises, the invocation of the mode of operation rule in such circumstances is superfluous and unnecessary.

       In this context, it is significant that the complaint in this regard alleged, as an increased hazard, that drinks were more likely to be dropped or spilled when served from the beer tubs. The plaintiff has pointed us to nothing in the record that would substantiate such an increased risk. The plaintiff notes in her appellate brief that the “the defendant’s policy of assigning a barback to identify and to clean spills in the area of the portable bars evidences that the hazard was inherently foreseeable and occurred regularly.” This assertion, however, mischaracterizes the significance of the deployment of barbacks to the beer tub areas. A manager from the bar actually testified that barbacks were assigned not only to a particular beer tub, but also to the surrounding area, and that this staffing arrangement was consistent with the responsibilities of barbacks assigned to the permanent bars.

       We note that this result is not draconian. In many situations, traditional premises liability may afford relief. Nothing prevents recovery if the owner affirmatively creates the actual defect; see Kelly v. Stop & Shop, Inc., supra, 281 Conn. 785 n.6; and what constitutes reasonable inspection in such circumstances may result in a fairly low threshold in establishing constructive notice. If a bar employee is standing next to a puddle, a fact finder may find actual notice; such a showing would not be “insuperable.”
      It is, of course, possible that the jury in this case could have applied traditional notice standards and reached the same result. See part I of this opinion. In its instructions to the jury, the court charged that the defendant could be liable if it found the defendant’s affirmative acts created the hazardous condition. The mode of operation rule aptly fills the narrow niche where the actual defect is caused by a third party in circumstances in which the defendant created a zone of danger with increased risk of frequently repeating hazardous conditions.