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CONSIDINE v. WATERBURY--CONCURRENCE AND DISSENT

ZARELLA, J., concurring in part and dissenting in part. Although I agree with the conclusion of the majority in part I of its opinion that governmental immunity does not shield the defendant, the city of Waterbury, from liability, two reasons compel me to dissent from the majority's conclusion in part II of its opinion that the plaintiff, Edward Considine, offered sufficient evidence to make out a prima facie case of negligence. First, the majority inappropriately affirms the use of an inapplicable building code as evidence of the standard of care owed by the defendant to the plaintiff. Second, even if it assumed that the use of the inapplicable building code as evidence of the standard of care was appropriate, the plaintiff failed to offer any evidence that the defendant had actual or constructive notice of any defect in the premises. I I generally agree with the facts set forth in the majority opinion and will not repeat them in this opinion. I disagree, however, with the majority's holding that the state building code is relevant evidence of the standard of care owed by the defendant to the plaintiff. I instead believe that a nonretroactive provision of a building code is not relevant evidence of the standard of care owed to an invitee by the owner of exempted, preexisting premises. Evidence is relevant if it has ``any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence.'' Conn. Code Evid.

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Connecticut Law