Preview:

****************************************************** The ``officially released'' date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ``officially released'' date appearing in the opinion. In no event will any such motions be accepted before the ``officially released'' date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ******************************************************

MYRA KRAMER ET AL. v. ROBERT J. PETISI ET AL. (SC 17549)
Borden, Norcott, Katz, Palmer and Zarella, Js.* Argued October 19, 2006--officially released February 26, 2008

Hugh D. Hughes, with whom, on the brief, were William F. Gallagher and Barbara L. Cox, for the appellant (named plaintiff). Laura Pascale Zaino, with whom, on the brief, was Thomas J. Hagarty, Jr., for the appellees (defendants Patricia Abagnale and Country Living Associates, Inc.).

Opinion

PALMER, J. The named plaintiff, Myra Kramer,1 commenced this action against Patricia Abagnale, a real estate agent, and Abagnale's employer, Country Living Associates, Inc., among others,2 seeking damages for, inter alia, Abagnale's allegedly negligent misrepresentation of the boundary lines of certain property in the town of Fairfield that the plaintiff had purchased from Abagnale's clients, Robert J. Petisi and Carole W. Petisi.3 In reliance on this court's holding in Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 586, 657 A.2d 212 (1995), that the doctrine of comparative negligence is applicable to a claim of negligent misrepresentation when only commercial losses are sustained, the trial court permitted the defendants to raise a special defense of comparative negligence. Following a trial, the jury found that, although Abagnale negligently had misrepresented the boundary lines, the plaintiff, by failing to obtain a current survey of the property before purchasing it, was 60 percent contributorily negligent and, therefore, was not entitled to damages. The trial court rendered judgment in favor of the defendants, and the plaintiff appealed to the Appellate Court, claiming, inter alia, that the trial court improperly had permitted the defendants to raise the defense of comparative negligence. See Kramer v. Petisi, 91 Conn. App. 26, 27, 879 A.2d 526 (2005). The Appellate Court concluded that the trial court properly had applied the law of comparative negligence to the plaintiff's negligent misrepresentation claim; see id., 31, 34; and, accordingly, affirmed the judgment of the trial court. Id., 39. We granted the plaintiff's petition for certification to appeal limited to the following issue: ``Did the Appellate Court properly apply the law of comparative negligence to the . . . plaintiff's claims of [negligent] misrepresentation against the defendants?'' Kramer v. Petisi, 276 Conn. 916, 888 A.2d 84 (2005). We answer the certified question in the affirmative and, accordingly, affirm the judgment of the Appellate Court. The opinion of the Appellate Court sets forth the following facts that the jury reasonably could have found. ``In 1978, John P. Edel and Jacqueline P. Edel, the owners of a four and one-half acre estate on North Street in Fairfield, subdivided the parcel of land into two parcels, which became known as 2250 North Street and 2228 North Street. The Edels had a fenced in horse paddock, which was located on both parcels. The paddock area of the land is the focus of the current dispute. ``In 1991, the Petisis purchased 2228 North Street from the Edels. When the Petisis purchased the property, the horse paddock was still in existence, but, because of the overgrown condition of the paddock land, the Petisis dismantled the portion of the fence that enclosed the paddock on their property. They asked [Robert S. Scanlon and Theresa E. Stetson-Scanlon] the

owners of the other parcel, 2250 North Street, if they could mow the tall grass up to the remaining portion of the fence, which was located on the other parcel. The [Scanlons] granted permission, and, between 1992 and 1994, the Petisis maintained that parcel of land. ``On June 1, 1994, the Petisis listed their property for sale with Abagnale, an agent of Country Living Associates, Inc. The Petisis provided Abagnale and Country Living Associates, Inc., with a written disclosure document. In response to the disclosure document question regarding encroachments, boundary disputes or easements affecting the property, the Petisis replied that a `[s]ection of [the] backyard is fenced in including [a ten foot by fifty foot section of the] neighbor's property.' ``In July, 1994, the plaintiff and her husband decided to move from New Mexico to Connecticut. The couple looked at several homes in a ten day period between July 11 and 20. After attending a broker's open house at the Petisis' home, Nancy W. Thorne, the plaintiff's real estate agent, took the plaintiff to look at the house. Although Thorne had spoken with Abagnale, she did not wait for Abagnale before taking the plaintiff to view the property. ``Shortly thereafter, the plaintiff visited the property with members of her family, Thorne and Abagnale. There were three to five additional visits in the days that followed. At one of the visits, the plaintiff and Thorne walked around the property. The plaintiff asked Thorne about the location of the boundaries. When Thorne replied that she did not know the boundaries of the property, she told the plaintiff that she would go inside and ask Abagnale. Upon her return, Thorne told the plaintiff that the boundary was the western side of the fence, which actually was located on the adjoining parcel, 2250 North Street. ``The plaintiff offered to purchase the property for $1.25 million. After some difficult negotiations, the parties agreed on a sale price of $1.4 million. After the inspection of the property revealed a variety of problems, the Petisis signed the sales contract and an addendum dated August 24, 1994, promising, among other items, a $3000 credit at closing. In addition, the addendum provided that the Petisis would remove an inground oil tank and kerosene tank, and provide for the extermination of wasps, bats, carpenter ants and mice. The sales contract also provided that any improvements or appurtenances located on the Petisis' land were entirely within the boundaries of the property to be conveyed. The parties closed on September 26, 1994. ``Prior to the closing, the plaintiff did not obtain a survey of the property. Instead, she relied on a 1982 survey of the property, which indicated the boundaries of the property without the fence. There is some dispute as to whether the plaintiff's attorney [Scott M. Gerard]

advised her to get a new survey done or whether it was suggested that the old survey be updated. Regardless, instead of obtaining a new survey, the plaintiff obtained an affidavit in lieu of a survey in which the Petisis stated that they had no knowledge of adverse rights, including easements, rights-of-way or encroachments. ``Despite the affidavit, the seller's disclosure statement indicated that a portion of the land, which was partially fenced in, was not part of the property. The sellers' disclosure form, however, was not given to the plaintiff. Abagnale did not provide this to Thorne or to the plaintiff. ``On April 23, 1996, the plaintiff received notice from [the Scanlons] the owners of 2250 North Street, the adjacent property, that they were asserting their rights to prevent her from adversely possessing a portion of their property. At issue was a .22 acre portion of the property that was fenced in and used by the plaintiff.'' Kramer v. Petisi, supra, 91 Conn. App. 28

Download Kramer v. Petisi.pdf

Connecticut Law