Theodore v. Lifeline Systems Co.

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DIANA THEODORE, ADMINISTRATRIX (ESTATE OF
CATHERINE NUCKOLS) v. LIFELINE SYSTEMS
COMPANY ET AL.
(AC 37857)
Keller, Prescott and Harper, Js.
Argued January 17—officially released May 23, 2017
(Appeal from Superior Court, judicial district of
Hartford, Elgo, J.[motions for directed verdict and to
set aside verdict; judgment].)
Maria K. Tougas, for the appellant (plaintiff).
Trevor J. Keenan, for the appellee (named
defendant).
Sharon Baldwin, for the appellee (defendant VNA
Healthcare, Inc.).
Opinion
KELLER, J. The plaintiff, Diana Theodore, the admin-
istratrix of the estate of Catherine Nuckols, commenced
the present action sounding in negligence, breach of
contract, and products liability against the defendants,
Lifeline Systems Company (Lifeline) and VNA Health-
care, Inc. (VNA).1 The plaintiff appeals from the judg-
ment of the trial court rendered in favor of the
defendants after it granted motions for a directed ver-
dict brought by the defendants. Also, the plaintiff
appeals from the court’s denial of her motion to set
aside the verdict. The plaintiff claims that (1) in ruling
on the motions for a directed verdict, the court errone-
ously concluded that she failed to present evidence
sufficient to satisfy the essential element of causation,2
and (2) the court erroneously precluded certain evi-
dence. We affirm the judgment of the trial court.
Relevant to all three counts of the underlying com-
plaint are the plaintiff’s allegations that, in 2010, the
plaintiff’s decedent, Catherine Nuckols, executed ser-
vice agreements with VNA, a company that was in the
business of providing independent living services to
residents of the Greater Hartford area. By these
agreements, the decedent subscribed to receive home
medical alert system services through Lifeline for a
monthly fee. Thereafter, VNA installed a Lifeline 6800XT
medical alert system at the decedent’s Glastonbury resi-
dence. The system consisted of a communicator device
and a personal help button that was designed to be worn
by the user. The communicator device was connected
to the decedent’s living room telephone by a piece of
equipment described as ‘‘a splitter.’’ When the system
is functioning properly, and either the personal help
button worn by the user or a help button located on
the communicator device is pressed, a signal is trans-
mitted, by means of the user’s telephone equipment, to
Lifeline’s call center. This signal alerts Lifeline’s call
center that an emergency situation may have arisen at
the decedent’s residence. Further, the plaintiff alleged
that, on July 29, 2011, the eighty-eight year old decedent,
who lived alone, and cared for and maintained herself,
was found to be deceased on the floor of her residence
after having attempted to summon help by means of
her Lifeline system.
In count one, brought against VNA, the plaintiff
alleged that VNA was negligent in its installation of the
Lifeline system. The plaintiff alleged that VNA failed to
properly install the communicator device so that, when
a help button was pressed, the system would seize the
decedent’s telephone line, thereby permitting an emer-
gency signal to be transmitted from the decedent’s resi-
dence to Lifeline’s call center in circumstances in which
one or both of the decedent’s two telephones was either
in use or simply off the hook. The plaintiff alleged that
the user manual provided to the decedent by VNA ‘‘con-
tained various incorrect and contradictory statements
pertaining to the inability of the device to ‘seize the
phone line’ when the customer’s phone was in use or
off the hook . . . .’’ Additionally, the plaintiff alleged
that VNA failed to install a special telephone jack (spe-
cifically, an RJ31X telephone jack) that would have
enabled the communicator device to seize the telephone
line to transmit an emergency signal; VNA failed to
follow warnings and procedures related to the installa-
tion of the system; VNA’s installer lacked necessary
training, knowledge, and expertise with respect to the
Lifeline system; and VNA failed to advise the decedent
of ‘‘the purpose of the . . . [special] phone jack and
the hazards and dangers of not having the recom-
mended jack installed, and failed to ensure that [the
decedent’s] device would work when either [of the
decedent’s telephones were] in use or off the hook.’’
Further, the plaintiff alleged: ‘‘On or before July 29,
2011, one or more of the decedent’s telephones was off
the hook and she fell in her home and could not get
up off the floor. On said date and at all times material
thereto, the decedent exercised due care and she initi-
ated a signal to the call center by pressing the ‘help’
button on the communicator and/or the [personal help
button] necklace, however the Lifeline device failed to
send the signal and/or ‘dial in’ to the call center, no
[emergency] assistance was ever sent [to the decedent’s
residence], and the decedent remained on the floor for
approximately [twenty-four to forty-eight] hours and
eventually died on the floor of her residence.’’
The plaintiff alleged that, as a result of VNA’s negli-
gence, ‘‘the decedent remained on the floor for an unde-
termined amount of time, without medical attention,
food or water, was unable to move or secure help and
died a frightening death. . . . [T]he decedent suffered
anguish, fear, and the realization that her helplessness
and incapacity caused the impending end of her life
and the experience of a lonely death. . . . [T[he dece-
dent’s ability to carry out life’s activities was perma-
nently destroyed . . . [and] funeral, burial, and other
expenses and probate costs were incurred on behalf
of the decedent and will continue to be incurred in
the future.’’
In count two, brought against VNA, the plaintiff
alleged that VNA breached its written agreements (both
a ‘‘Service Agreement’’ and a ‘‘Care Plan Agreement’’) by
which VNA agreed ‘‘that emergency medical assistance
would be provided or [the decedent’s] responders
would be contacted in the event that the decedent acti-
vated the ‘help’ button on either the side of the Lifeline
communicator or the [personal help button] necklace.’’
The plaintiff, relying on prior allegations in the com-
plaint, also alleged that ‘‘VNA breached its agreements
with the decedent in that [after she initiated an emer-
gency signal] no emergency medical assistance was
provided and no responders were contacted to advise of
the emergency which befell the decedent.’’ The plaintiff
alleged that, as a result of Lifeline’s defective product,
the decedent suffered the consequences that previously
were alleged in count one.
In count three, the final count of the complaint, the
plaintiff set forth a cause of action against Lifeline
sounding in products liability. The plaintiff, also relying
on prior allegations in the complaint, alleged that, in
twenty-two different ways, Lifeline acted negligently
and carelessly when it put the Lifeline system into the
stream of commerce, and that the system was expected
to and did reach the decedent as a foreseeable user,
without substantial changes in the condition in which
it was sold. The plaintiff alleged that, under General
Statutes § 52-575m, Lifeline was liable and legally
responsible to the plaintiff for the damages caused by
the system. As she did in the context of claim two,
the plaintiff alleged that, as a result of the breach, the
decedent suffered the consequences that previously
were alleged in count one.
VNA denied that it acted negligently or that it
breached its contract with the decedent. As a special
defense, VNA alleged that ‘‘[i]f, as alleged by the plain-
tiff, the decedent’s injuries were caused by negligence
and/or carelessness . . . it was more likely [caused by]
the decedent’s negligence . . . .’’ The plaintiff denied
the allegations in the special defense. Lifeline denied
that it was liable under a theory of products liability
for any damages. Both defendants denied the plaintiff’s
allegations, as set forth in all three counts of the com-
plaint, with respect to the damages allegedly caused
by them.
Thereafter, over the course of several days, the plain-
tiff presented evidence to a jury. The plaintiff, who is
the decedent’s sister, presented her own testimony, as
well as testimony from Peter Galetsa, the plaintiff’s
husband; Carlos Morales, a former VNA employee who
had installed the decedent’s Lifeline system; Robin Tim-
mer, a police officer with the Glastonbury Police
Department who, following a request for a welfare
check, had entered the decedent’s residence and discov-
ered the deceased therein; Joy Balsamo, a former Life-
line senior territory manager whose duties included
selling and marketing the Lifeline system to VNA; Mary
Jo Lucia, a former VNA referral intake coordinator who
was involved with scheduling the installation of the
decedent’s Lifeline system; Mary Ann Dunbar, a former
VNA business manager who oversaw the Lifeline pro-
gram on behalf of the VNA; Dawn Gaylord Medina,
a former Lifeline coordinator whose duties included
training Lifeline system installers and coordinating the
installation of Lifeline systems; Michael Tracey, a Life-
line senior manager of monitoring services whose
duties encompass responding to signals from subscrib-
ers’ communicator devices; Eva Baranowski, a VNA
client services manager who formerly supervised VNA’s
homemaking department; Ellen Wilson, an advanced
emergency medical technician (EMT) employed by the
Glastonbury Ambulance Department, who was one of
the first responders at the decedent’s residence on July
29, 2011; Joseph Randolph, the owner of Randolph Tele-
com, Inc., which provides consulting services to design-
ers of telecommunications equipment; and Roy
Zagieboylo, the decedent’s primary care physician.
Additionally, the plaintiff presented a great deal of docu-
mentary evidence in support of her case, including
excerpts of the deposition testimony of Martin Fox, an
engineer, and William MacIver, an engineer employed
by Lifeline.
In relevant part, the plaintiff presented evidence that
after she was unable to contact the decedent by tele-
phone, she and her husband, Galetsa, went to the dece-
dent’s residence but still were unable to contact the
decedent. The plaintiff and Galetsa went to the Glaston-
bury Police Department and asked for assistance. Tim-
mer forcibly entered the residence, where he found
the decedent’s body, face down, in a hallway near a
bathroom. The decedent was wearing a personal help
button, and a red light was flashing on the Lifeline
communicator device, which occurs after a help button
had been pressed. Telephone records submitted in evi-
dence supported a finding that the decedent’s telephone
was off the hook for a lengthy period prior to the discov-
ery of the decedent’s body. Wilson testified that she
observed bloody stool in a toilet near the decedent’s
body and that she believed the bloody stool to be consis-
tent with gastrointestinal bleeding (GI bleed). The plain-
tiff rested her case-in-chief on March 18, 2015.
After the plaintiff rested her case, the defendants
orally moved for a directed verdict. In their argument,
the defendants focused on what they viewed as a lack
of evidence to support a necessary finding by the jury
with respect to the issue of causation of the damages
claimed. The court invited the parties to present memo-
randa with respect to the motions for a directed verdict.
Lifeline and VNA presented memoranda of law in sup-
port of the motions and the plaintiff presented a memo-
randum in opposition to the motions.
On March 24, 2015, during the defendants’ case-in-
chief, the court, by means of an oral ruling, granted the
defendants’ motions for a directed verdict.3 In relevant
part, the court explained that causation consisted of
two components, cause in fact and proximate cause.
The court explained that the test for cause in fact ‘‘is
simply would the injury have occurred were it not for
the actor’s conduct.’’ The court explained that the test
for proximate cause ‘‘is determined by looking from the
injury to the negligent act complained of [to determine
whether] the . . . conduct is a substantial factor is
bringing about the plaintiff’s injuries.’’ The court
observed that in undertaking its analysis, it must view
the evidence in the light most favorable to the plaintiff,
and that causation ‘‘must be based upon more than
conjecture and surmise.’’
The court then stated: ‘‘This court finds that the plain-
tiff has failed to present evidence in the absence of
speculation and conjecture to support causation; specif-
ically, the plaintiff needed to establish that had the
decedent pressed the Lifeline help button, and [if the
emergency signal] had been successfully received, she
would have received medical attention and lived.
‘‘Dr. Zagieboylo was able to testify within a reason-
able degree of medical probability that the decedent
suffered a GI bleed and that it was a substantial factor
in contributing to her death.
‘‘He also testified that he would not expect her to
die instantaneously from a GI bleed because he also
testified that . . . he could not testify that the GI bleed
caused her death or was the sole cause of death.
‘‘Dr. Zagieboylo’s opinion on its own is wholly inade-
quate to establish causation. Because, as the court will
elaborate further, Dr. Zagieboylo made clear that he
could not so opine.
‘‘He also testified that it was likely that she had symp-
toms [related to the GI bleed], but his critical testimony
which he clearly and candidly couched in terms of possi-
bilities was the following . . . if [the decedent] became
symptomatic and . . . whether she became symptom-
atic, he could not say if she experienced symptoms,
interpreted them correctly, and or acted on her
symptoms.
‘‘When asked whether . . . the absence of medical
attention, food, and water . . . was a substantial factor
in contributing to the death, [Dr. Zagieboylo] testified
that [that question] ‘was hard because time was a fac-
tor,’ and that . . . ‘[m]aybe Life Star wouldn’t have
saved her’ . . . and he also stated . . . ‘[t]here may
have been time to save her.’
‘‘More definitively to the question of cause of death,
Dr. Zagieboylo made crystal clear the distinction in
his opinion between the GI bleed being a contributing
factor in her death, [about] which he could testify within
a reasonable degree of medical probability, versus the
actual cause of death, about which he clearly and can-
didly testified that he could not opine within a reason-
able degree of medical probability.
‘‘He clearly testified that he could not testify that the
GI bleed was a sole cause of death and made clear that
[the decedent] could have died from any number of
causes of which the GI bleed was a contributing factor,
including cerebral vascular disease, heart attack, or
stroke. He noted that [the decedent] could have had a
cardiovascular collapse without [having experienced]
symptoms [beforehand].
‘‘Finally, Dr. Zagieboylo testified as to the question
of whether or not he could opine with a reasonable
degree of medical probability that had [the decedent]
activated her Lifeline device, she would have lived. His
response was a most candid and definitive, ‘oh, no.’
‘‘He testified that the GI bleed contributed to her
death but that he couldn’t say what actually caused her
death and [that] ‘[t]hat would be even more speculative.’
‘‘When asked . . . would she have lived if the call
had gone through, he could not say with a reasonable
[degree of] medical probability and, then again, stated,
‘that would be speculation because it was based on so
many maybes.’
‘‘The court finds that Dr. Zagieboylo’s unshakeable
opinion regarding the speculative nature of [the dece-
dent’s] actual cause of death, based on the facts before
him, and how he could not opine whether she would
have lived, had the call [to Lifeline] gone through, is
fatal to the plaintiff’s case. . . .
‘‘Although the elements of a cause of action may
be established on the basis of inferences drawn from
circumstantial evidence, such inferences must be rea-
sonable and logical and the conclusions based on them
must not be the result of speculation and conjecture.
‘‘An inference must have some definite basis [in] the
facts. When an element necessary to a cause of action
cannot be established without conjecture, the evidence
presented cannot withstand a motion for directed
verdict.’’
The court directed a verdict ‘‘for the defendants in
this case,’’ and later rendered judgment in favor of the
defendants.4 Thereafter, the court summoned and dis-
charged the jury. The plaintiff filed a motion to set aside
the verdict rendered in the defendants’ favor. The court
denied this motion. Additional facts will be discussed
as necessary.
I
First, the plaintiff claims that, in ruling on the motions
for a directed verdict, the court erroneously concluded
that she failed to present evidence sufficient to satisfy
the essential element of causation. We disagree.
With respect to her cause of action against Lifeline,
the plaintiff claims that the court’s ruling on the motion
for a directed verdict was improper because she pre-
sented sufficient evidence to demonstrate that ‘‘as a
result of the Lifeline device being unreasonably danger-
ous and malfunctioning because it lacked line seizure
capability, [the decedent] suffered harm and an
untimely, wrongful death.’’ The plaintiff devotes a great
deal of her arguments before this court to the issue of
whether the evidence demonstrated that the Lifeline
system was defective in its design and installation.
Extensive proof that the decedent’s Lifeline system was
defective, however, is no substitute for proof that the
defective product caused the decedent to endure suffer-
ing or death. As our Supreme Court has observed, ‘‘[n]o
matter how negligent a party may have been, if his
negligent act bears no [demonstrable] relation to the
injury [alleged], it is not actionable.’’ (Internal quotation
marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 833–
34, 116 A.3d 1195 (2015). The court’s focus in granting
the motions for a directed verdict was on whether the
plaintiff presented evidence that any or all of the alleged
defects inherent in the system, which allegedly ren-
dered it unable to seize the decedent’s telephone line
to transmit an emergency signal, actually caused the
injuries and damages alleged in the complaint.
In challenging the court’s rationale, the plaintiff
mostly draws our attention to the testimony of Wilson
and Zagieboylo. She states: ‘‘Wilson testified that it was
highly probable that [the decedent] had suffered from
an imminent and significant GI bleed, and collapsed on
the way out of the bathroom and could not get up off
the floor by herself. . . . The GI bleed was the missing
piece of the puzzle and the reason the jury could deter-
mine that [the decedent] had activated her Lifeline
device in order to summon emergency assistance from
. . . Lifeline. If [the Lifeline emergency response cen-
ter] had answered, she would have had medical assis-
tance sent immediately. . . .
‘‘Wilson testified at trial that she had handled several
ambulance calls for patients who suffered similar GI
bleeds and that she routinely successfully treated them
either at the scene or on the way to the hospital. . . .
She testified that she also successfully revives patients
when they have stopped breathing. . . . The Ambu-
lance Report she prepared confirmed that it took [Wil-
son’s] EMT team three minutes from the time of their
dispatch to the time of their arrival to [the decedent’s]
apartment on July 29, 2011. . . . Therefore, based on
Wilson’s testimony and report, if the ambulance had
been dispatched by Lifeline when [the decedent] acti-
vated her help button, reasonable jurors could deter-
mine, or at least reasonably infer, that it was more
probable than not that EMTs would have arrived [three]
minutes after [the decedent’s] activation, and in so
doing, decrease the harm [the decedent] suffered past
that [three] minute mark.’’
Focusing on Zagieboylo’s testimony, the plaintiff
argues: ‘‘Zagieboylo’s medical diagnosis of a GI bleed
matched Wilson’s medical assessment of a GI bleed at
the scene. Dr. Zagieboylo went a step further and
opined, within a reasonable degree of medical probabil-
ity, that [the decedent] suffered a GI bleed which was
a substantial cause of her death. He also opined with
a reasonable degree of medical certainty that the symp-
toms associated with a GI bleed can go on for several
hours and that the majority of patients that suffer from
GI bleeds do not die within minutes, and often do not
die at all, because GI bleeds are treatable by the quick
administration of intravenous fluids. This testimony
confirmed Wilson’s testimony that she has successfully
treated patients with GI bleeds similar to [that experi-
enced by the decedent]. . . . Dr. Zagieboylo opined
with a reasonable degree of medical certainty that [the
decedent] did not die within a matter of minutes from
the GI bleed.
‘‘The combined testimony of . . . Wilson and Dr.
Zagieboylo provided a plethora of medical information
in order to ‘connect the dots’ on causation. . . . Wilson
and Dr. Zagieboylo established the probability that
while [the decedent] had suffered a GI bleed and the
GI bleed was a substantial cause of her death, with
proper treatment, she would not have died in a few
minutes, thereby enabling the jury to make a reasonable
and logical inference that [the decedent] would have
lived for at least that three minutes that it took for the
Glastonbury ambulance to get to her apartment, as long
as the Lifeline device had worked properly and Lifeline
fulfilled its duty to dispatch an ambulance in the first
instance. Thus, [the] plaintiff established the unbroken
sequence of events which tied the [decedent’s] injuries
to [Lifeline’s] conduct. . . . This unbroken sequence
begins with a defective Lifeline device that malfuncti-
oned because it failed to respond to [the decedent’s]
emergency help call, which she activated because she
was suffering from a GI bleed, and ends with [the dece-
dent] lying on the floor suffering from a treatable condi-
tion that went completely untreated because of the
defendant Lifeline.’’ (Emphasis omitted.)
Referring to her products liability cause of action
against Lifeline and her negligence cause of action
against VNA, the plaintiff claims that the court ‘‘erred
in determining that [she] failed to present sufficient
direct and circumstantial evidence of proximate cause
in a product defect/negligence case.’’ The plaintiff
argues that ‘‘[i]n order to establish causation under both
the [Products Liability Act, General Statutes § 52-572m
et seq.], and ordinary negligence, sufficient to have the
case go to the jury, all [the] plaintiff has to show is that
the defendants’ negligent conduct was a substantial
factor in bringing about the [decedent’s] foreseeable
injury in light of all relevant circumstances.’’ (Emphasis
omitted.) The plaintiff argues that, for a variety of rea-
sons, the evidence demonstrated that the claimed injur-
ies to the decedent were foreseeable to Lifeline and
VNA, and that the jury, in its fact finding role, could
so find.5
We begin our analysis of the claim by setting forth
our familiar standard of review and some governing
legal principles. ‘‘The defendant must overcome a high
threshold to prevail on . . . a motion for a directed
verdict . . . . Directed verdicts are not favored. . . .
A trial court should direct a verdict only when a jury
could not reasonably and legally have reached any other
conclusion. . . . In reviewing the trial court’s decision
to direct a verdict in favor of a defendant we must
consider the evidence in the light most favorable to the
plaintiff. . . . A directed verdict is justified if . . . the
evidence is so weak that it would be proper for the
court to set aside a verdict rendered for the other party.
. . . Put differently, [i]f the evidence in a case presents
such a situation that the minds of fair and reasonable
men could therefrom reach but one conclusion, there
is no question for a jury. . . . But if the evidence is
such that honest and reasonable men could fairly differ
and reach different conclusions, the issues should go to
the jury for determination.’’ (Citation omitted; internal
quotation marks omitted.) Rawls v. Progressive North-
ern Ins. Co., 310 Conn. 768, 775–76, 83 A.3d 576 (2014);
see also Hicks v. State, 287 Conn. 421, 432, 948 A.2d
982 (2008).
‘‘Whether the evidence presented by the plaintiff was
sufficient to withstand a motion for a directed verdict
is a question of law, over which our review is plenary.
. . . A trial court should direct a verdict only when a
jury could not reasonably and legally have reached any
other conclusion. . . . In reviewing the trial court’s
decision to direct a verdict in favor of a defendant we
must consider the evidence in the light most favorable
to the plaintiff. . . . Although it is the jury’s right to
draw logical deductions and make reasonable infer-
ences from the facts proven . . . it may not resort to
mere conjecture and speculation. . . . A directed ver-
dict is justified if . . . the evidence is so weak that it
would be proper for the court to set aside a verdict
rendered for the other party.’’ (Citation omitted; internal
quotation marks omitted.) Curran v. Kroll, 303 Conn.
845, 855–56, 37 A.3d 700 (2012); see also Schweiger v.
Amica Mutual Ins. Co., 110 Conn. App. 736, 739, 955
A.2d 1241 (to establish prima facie case, proponent
must submit evidence that is sufficient to establish fact
or facts it is adduced to prove), cert. denied, 289 Conn.
955, 961 A.2d 421 (2008).
With respect to the products liability cause of action
brought against Lifeline and the negligence cause of
action brought against VNA, we briefly review what
was required for the plaintiff to establish a prima facie
case sufficient to survive the defendants’ motions for
a directed verdict, paying particular attention to the
essential element of causation in both causes of action.
Our Supreme Court has described the essential ele-
ments of a strict products liability claim as follows: ‘‘(1)
the defendant was engaged in the business of selling
the product; (2) the product was in a defective condition
unreasonably dangerous to the consumer or user; (3)
the defect caused the injury for which compensation
was sought; (4) the defect existed at the time of the
sale; and (5) the product was expected to and did reach
the consumer without substantial change in the condi-
tion.’’ (Emphasis added.) Giglio v. Connecticut Light &
Power Co., 180 Conn. 230, 234, 429 A.2d 486 (1980).
‘‘Proof that a defect in the product caused the injury
in controversy is a prerequisite to recovery for product-
caused injury in every products liability case, whether
the action is grounded on negligence, breach of war-
ranty, strict liability in tort, fraud and deceit or misrepre-
sentation, principles of admiralty, or a combination of
such theories. . . .
‘‘The causation inquiry has two facets: (1) cause-in-
fact; and (2) legal or proximate cause. These two com-
ponents ask the following questions respectively: (1)
whether the defendant’s conduct was the cause-in-fact
of the injury; and, if so; (2) whether as a matter of social
policy the defendant should be held legally responsible
for the injury. Proof of proximate cause requires proof
of both cause-in-fact and legal cause.’’ (Footnotes omit-
ted.) 63 Am. Jur. 2d 55–58, Products Liability § 21 (2010).
‘‘Cause-in-fact, also referred to as actual cause, asks
whether there was a sufficiently close, actual, causal
connection between the defendant’s conduct and the
actual damage suffered by the plaintiff. It requires that
there be a direct causal connection between the negli-
gence or product defect and the injury. That is, it refers
to the physical connection between an act and an
injury.’’ (Footnotes omitted.) 63 Am. Jur. 2d, supra, § 24,
p. 60.
‘‘A cause of action in negligence is comprised of four
elements: duty; breach of that duty; causation; and
actual injury.’’ (Emphasis added.) Ruiz v. Victory Prop-
erties, LLC, 315 Conn. 320, 328, 107 A.3d 381 (2015).
‘‘Legal cause is a hybrid construct, the result of balanc-
ing philosophic, pragmatic and moral approaches to
causation.’’ Kowal v. Hofher, 181 Conn. 355, 359, 436
A.2d 1 (1980).
‘‘The first component of legal cause is causation in
fact. Causation in fact is the purest legal application of
. . . legal cause. The test for cause in fact is, simply,
would the injury have occurred were it not for the
actor’s conduct. . . . The second component of legal
cause is proximate cause . . . . [T]he test of proxi-
mate cause is whether the defendant’s conduct is a
substantial factor in bringing about the plaintiff’s injur-
ies. . . . Further, it is the plaintiff who bears the bur-
den to prove an unbroken sequence of events that tied
his injuries to the [defendants’ conduct]. . . . The exis-
tence of the proximate cause of an injury is determined
by looking from the injury to the negligent act com-
plained of for the necessary causal connection. . . .
This causal connection must be based upon more than
conjecture and surmise. . . . An actual cause that is a
substantial factor in the resulting harm is a proximate
cause of that harm. . . . The finding of actual cause
is thus a requisite for any finding of proximate cause.’’
(Citation omitted; internal quotation marks omitted.)
Winn v. Posades, 281 Conn. 50, 56–57, 913 A.2d 407
(2007). ‘‘Because actual causation, in theory, is virtually
limitless, the legal construct of proximate cause serves
to establish how far down the causal continuum tortfea-
sors will be held liable for the consequences of their
actions.’’ First Federal Savings & Loan Assn. of Roches-
ter v. Charter Appraisal Co., 247 Conn. 597, 604, 724
A.2d 497 (1999).
At this juncture in our analysis, we observe that, if
the plaintiff failed to present evidence that, if credited
by the jury, demonstrated that defects in Lifeline’s sys-
tem and VNA’s negligent actions were causes in fact of
the injuries for which compensation was sought, she
failed to establish a prima facie case. The complaint
sought damages for the decedent’s death. Additionally,
the complaint reasonably could be construed to seek
damages for the amount of time, if any, that the dece-
dent endured while on the floor of her residence and
waiting for help to arrive prior to her death. The plaintiff
alleged, in part, that ‘‘the decedent remained on the floor
for an undetermined amount of time, without medical
attention, food or water, was unable to move or secure
help and died a frightening death’’ and that ‘‘the dece-
dent suffered anguish, fear, and the realization that her
helplessness and incapacity caused the impending end
of her life and the experience of a lonely death.’’ ‘‘Actual
cause requires evidence that the plaintiff’s injury would
not have occurred in the precise way that it did without
the defendant’s conduct.’’ Shegog v. Zabrecky, 36 Conn.
App. 737, 745, 654 A.2d 771, cert. denied, 232 Conn. 922,
656 A.2d 670 (1995). In light of the allegations in the
present case, it was the plaintiff’s burden to demon-
strate that the decedent utilized the Lifeline system to
summon assistance and that, absent the tortious con-
duct of the defendants, emergency assistance would
have spared her from any amount of suffering after
she activated her Lifeline system or would have saved
her life.
The allegations, therefore, required the plaintiff to
present evidence with respect to the cause of the dece-
dent’s death. This was a contested issue that required
expert testimony.6 ‘‘When the causation issue involved
goes beyond the field of ordinary knowledge and experi-
ence of judges and jurors, expert testimony is required.’’
Green v. Ensign–Bickford Co., 25 Conn. App. 479, 488,
595 A.2d 1383, cert. denied, 220 Conn. 919, 597 A.2d 341
(1991). ‘‘An exception to the general rule with regard to
expert medical opinion evidence is when the medical
condition is obvious or common in everyday life. . . .
Similarly, expert opinion may not be necessary as to
causation of an injury or illness if the plaintiff’s evidence
creates a probability so strong that a lay jury can form
a reasonable belief.’’ (Citations omitted; internal quota-
tion marks omitted.) Sherman v. Bristol Hospital, Inc.,
79 Conn. App. 78, 89, 828 A.2d 1260 (2003); see also
Poulin v. Yasner, 64 Conn. App. 730, 738, 781 A.2d 422,
cert. denied, 258 Conn. 911, 782 A.2d 1245 (2001).
Before reviewing the evidence relevant to our analy-
sis, we address the plaintiff’s argument that, in its deci-
sion, the trial court ‘‘failed to recognize the applicability
of the tort doctrine known as ‘the affirmative duty to
respond,’ which was clearly breached by both defen-
dants in this case . . . .’’ In her principal appellate
brief, the plaintiff argues that under this theory of liabil-
ity, set forth in 2 Restatement (Second), Torts § 323,
p.135 (1965),7 she did not bear the burden of demonstra-
ting that, absent the tortious conduct of the defendants,
the decedent ultimately would have lived. Instead, the
plaintiff argues, she bore a lesser burden of demonstra-
ting ‘‘that the breach of the duty [to respond] by [the]
defendants result[ed] in ‘physical harm’ [to the dece-
dent].’’ Then, the plaintiff argues that, by means of the
testimony of Zagieboylo and Wilson, she satisfied this
causal element because their testimony ‘‘proved that
[the decedent] suffered physical harm when she col-
lapsed from a GI bleed . . . .’’
The plaintiff refined her argument in her reply briefs.
There, she argues that, under § 323 of the Restatement
(Second), she demonstrated that the breach of VNA’s
‘‘affirmative contractual duty’’ to send assistance to the
decedent’s residence (1) increased the risk of harm
to the decedent and (2) the decedent suffered harm
because of her reliance on VNA to perform its contrac-
tual duty. Additionally, in her reply brief, she argues
that, under § 323, she did not need to demonstrate that
VNA’s tortious conduct was the cause in fact of the
decedent’s death, but only that the decedent suffered
a type of harm that VNA ‘‘knew or should have antici-
pated . . . was likely to result from its failure to act.’’
In a similar fashion, the plaintiff argues with respect
to Lifeline that its ‘‘failure to undertake its contractual
and voluntary duty to send assistance in all the ways
it had represented it would’’ (1) increased the risk of
harm to the decedent and (2) caused the decedent ‘‘[to
suffer] harm because she relied upon Lifeline to perform
this duty.’’
At the time of oral argument before this court, the
plaintiff further refined her argument with respect to
§ 323 of the Restatement (Second). The plaintiff argued
that a proper analysis of cause should focus on whether
there was an affirmative duty undertaken by the defen-
dants, whether the decedent relied on the performance
of that duty, and whether this increased the decedent’s
risk of harm. The plaintiff argued that it was sufficient
for her to demonstrate that the type of harm suffered
by the decedent was within the ‘‘general nature’’ of
the harm that foreseeably could have resulted from
a breach of the affirmative duties undertaken by the
defendants, but that she did not have to demonstrate
that the specific harm suffered by the decedent was
actually caused by the defendants.
The trial court did not expressly consider the plain-
tiff’s causes of action under this theory of liability. None-
theless, the plaintiff argues that this theory was properly
before the court because, from the inception of this
case, she relied on it. VNA and Lifeline contest the
plaintiff’s characterization of her causes of action and
argue that the plaintiff relies on § 323 of the Restatement
(Second) for the first time before this court in an
attempt to overturn the trial court’s ruling on a basis
that was not argued before nor decided by the court.
It is well settled that this court generally does not review
claims not raised before the trial court. See, e.g., Brag-
don v. Sweet, 102 Conn. App. 600, 607, 925 A.2d 1226
(2007). Alternatively, the defendants argue that the
plaintiff cannot prevail under § 323.
The record belies the fact that the plaintiff clearly
relied on § 323 of the Restatement (Second) throughout
the course of the trial. In fact, as set forth previously, the
plaintiff’s interpretation of her burden of proof seems to
have continued to evolve between the time that she
filed her principal appellate brief, the time that she filed
her reply briefs, and the time of oral argument before
this court. Even if we conclude that the plaintiff’s causes
of action should be evaluated in terms of the theory of
liability set forth in § 323, in the manner advanced by
the plaintiff, we would not conclude that the court’s
ruling was improper. First, we observe that the plaintiff
urges us to interpret § 323 such that it does not require
her to prove that the defendants’ conduct resulted in
the injuries for which she seeks compensation, but
merely that the defendants undertook an obligation to
render services to protect the decedent’s person, their
failure to render such services increased the risk of
harm to the decedent, and the decedent suffered a type
of foreseeable harm. In focusing on the risk of harm
caused by the defendants and the decedent’s reliance
on the services undertaken by the defendants, however,
the plaintiff fails to afford due consideration to the
earlier language in § 323 that gives rise to liability ‘‘for
physical harm resulting from’’ one’s failure to exercise
reasonable care in rendering such services to another.
(Emphasis added.) 2 Restatement (Second), supra,
§ 323; see footnote 9 of this opinion. This language in
§ 323 does not support the plaintiff’s argument that she
did not bear the burden of proving that the conduct at
issue was the cause in fact of the injuries for which
compensation was sought.
Second, we address the plaintiff’s argument that,
rather than proving that the defendants were the cause
in fact of the decedent’s death, it was sufficient for
her to have proven that VNA and Lifeline caused the
decedent to suffer a type of physical harm8 that was
foreseeable to them when they contractually agreed to
provide the services at issue to the decedent. Assuming,
arguendo, that this is a correct statement of the plain-
tiff’s burden of proof, the plaintiff’s argument fails
because it is based on a flawed assessment of the evi-
dence presented. As we will explain in detail later in
our analysis of this claim, the plaintiff not only failed
to demonstrate that the defendants were the cause in
fact of the decedent’s death, but she failed to demon-
strate that the alleged tortious conduct was the cause
in fact of any physical harm suffered by the decedent.
Having addressed the plaintiff’s arguments with
respect to the proper burden of proof, we turn to an
examination of the relevant evidence. We observe that
Zagieboylo testified that the decedent was one of his
patients beginning in 2007. The decedent suffered from
a variety of physical conditions, including anemia, gas-
tritis, hypertension, and vertigo. The decedent suffered
a mild stroke in 2010 and walked with a cane because
she experienced issues with balance. Zagieboylo testi-
fied that he had evaluated the decedent on November
16, 2010, and that the general state of her health at that
time was stable.
Zagieboylo testified that he reviewed a report pre-
pared by Wilson as well as her deposition testimony in
this case. He stated that he was aware that, at the time
that Wilson responded to the decedent’s residence, she
observed what she believed to be dark, tarry stool in
the decedent’s toilet, and that such stool signified an
upper GI bleed, which may cause dizziness and light-
headedness. Also, he testified that GI bleeds may precip-
itate other medical conditions such as collapsing,
fainting, heart attack, or stroke. Zagieboylo testified
that, on the basis of Wilson’s observations, he believed
with a reasonable degree of medical probability that
the decedent suffered from a GI bleed. Zagieboylo testi-
fied that patients with GI bleeds are treated by being
given fluids and blood intravenously. He opined that
the amount of fluid that is administered to patients
suffering a GI bleed acutely determines the success
rate that medical treatment will prevent death. Also,
Zagieboylo testified with a reasonable degree of medical
certainty that the decedent would not have died instan-
taneously from a GI bleed alone.9
The plaintiff also relies on the testimony of Wilson.10
Initially, we observe that Wilson did not opine with
respect to the cause of the decedent’s death.11 Relevant
to the issue before us, Wilson’s testimony demonstrated
that she responded to the decedent’s residence on July
29, 2011, after Timmer gained entrance to the residence.
She observed the decedent on the floor near the bath-
room, determined that life-saving measures would be
futile, and observed black, tarry stool in the toilet. Wil-
son testified: ‘‘If the patient had that amount of dark
tarry stool that would lead me to believe that she had
a problem with a GI bleed.’’
To demonstrate that the defendants’ alleged tortious
conduct caused the damages for which compensation
was sought, it was essential that the plaintiff prove what
caused the decedent’s death.12 For, if the jury was left
without evidence of the cause and timing of the dece-
dent’s death, it simply could not reasonably make a
finding that the alleged tortious conduct of the defen-
dants actually caused her death or any amount of suffer-
ing prior to her death. There was no autopsy performed
on the decedent’s body. The plaintiff attempted to dem-
onstrate through the testimony of both Zagieboylo and
Wilson that (1) the plaintiff died as a result of a GI
bleed, (2) she immediately summoned help after using
the bathroom, (3) the decedent would have survived
until help arrived, and (4) that a timely emergency
response likely would have saved the decedent’s life.
The evidence presented, however, did not provide nec-
essary clarification with respect to the cause of death
and, thus, left unanswered the questions of whether it
was likely that the decedent would have survived for
any length of time after summoning emergency help,
whether it was likely that she would have survived until
emergency help arrived, and whether it was likely that
a timely emergency response would have saved her life.
The jury could have answered such questions in the
plaintiff’s favor only by resort to conjecture and specu-
lation, which, of course, is forbidden. See, e.g., Curran
v. Kroll, supra, 303 Conn. 855–56; Boehm v. Kish, 201
Conn. 385, 389, 517 A.2d 624 (1986).
As Zagieboylo made clear to the trial court, the dece-
dent’s unwitnessed death could have been the result of
one or more causes. Although it was undisputed that
the decedent perished, the plaintiff did not establish a
sequence of events causally flowing from the defen-
dants’ negligence to her death. See, e.g., Wu v. Fairfield,
204 Conn. 435, 440, 528 A.2d 364 (1987) (evidence of
causation lacking when ‘‘[t]he plaintiff failed to estab-
lish an unbroken sequence of events causally flowing
from [defendant’s alleged negligent acts] to the dece-
dent’s drowning’’); Grody v.Tulin, 170 Conn. 443, 451,
356 A.2d 1076 (1976) (evidence of causation lacking
when jury left to speculate ‘‘as to whether an earlier
diagnosis and treatment [which may have been benefi-
cial] . . . might have prolonged [decedent’s] life’’).
Assuming that the plaintiff presented evidence that the
decedent utilized the Lifeline device in an attempt to
obtain emergency help and that she perished while wait-
ing for a response, the evidence at most supported an
inference that the decedent died while waiting for a
response, not that her death was caused by the lack of
such response.
Similarly, assuming that the plaintiff presented evi-
dence that the decedent utilized the Lifeline device in
an attempt to obtain emergency help, we conclude that
an evidentiary void existed with respect to whether,
after doing so, she would have endured any less suffer-
ing if the Lifeline system had performed satisfactorily.
The plaintiff did not present sufficient evidence to dem-
onstrate what caused the decedent’s death and likewise
failed to shed light on whether she remained alive, and
for how long, after attempting to summon help; whether
and for how long she was able to experience suffering;
or whether she had any awareness that a medical emer-
gency existed. The jury was left to speculate whether
the decedent had collapsed and, thereafter, remained
conscious for a significant amount of time or whether
the decedent had experienced a fatal health condition
that caused death prior to the time at which emergency
assistance would have arrived if the Lifeline system had
performed satisfactorily.13
The plaintiff hypothesizes that the decedent died a
slow and agonizing death after she attempted to obtain
emergency help by means of her Lifeline device. The
defendants hypothesize that, even if emergency help
arrived in a timely manner, the decedent would not
have survived or been spared suffering. It was necessary
for the plaintiff to present ‘‘some basis of definite facts’’
to enable the jury reasonably to infer what transpired
to actually cause the decedent’s death, or that one view
of the evidence was more reasonable than the other.
Paige v. Saint Andrew’s Roman Catholic Church Corp.,
250 Conn. 14, 33, 734 A.2d 85 (1999). We are mindful
that the plaintiff did not bear the burden of proving
her case beyond a reasonable doubt, but merely by a
preponderance of the evidence. Nor did the plaintiff
bear the burden of presenting evidence that was so
conclusive that it necessarily disproved every other
hypothesis fairly drawn from the facts in evidence. The
plaintiff’s evidence was insufficient because the critical
inferences on which she relied were not reasonably
drawn from the evidence, but could only be reached
by engaging in speculation or conjecture. ‘‘The decisive
consideration is not whether the finding implicit in the
jury’s verdict is consistent or inconsistent with another
or other hypotheses but whether or not the inference
upon which it is based was one which could have been
fairly and reasonably drawn from the physical facts
without the admixture of speculation or conjecture.’’
LeBlanc v. Grillo, 129 Conn. 378, 382, 28 A.2d 127
(1942).
In exercising our plenary review, and having consid-
ered the facts in the light most favorable to the plaintiff,
we conclude that the court properly granted the defen-
dants’ motions for a directed verdict.
II
Next, the plaintiff claims that the court erroneously
excluded three matters from evidence. The first is a
report generated by Fox, an engineer. According to the
plaintiff, the report contained Fox’s observations with
respect to the Lifeline system connected to the dece-
dent’s telephone, as well as ‘‘defects in the device he
directly observed and his opinions on causation, all of
which had been directly derived from his review of,
analysis, and testing of [the decedents] actual Uniden
phone, Lifeline device, and the splitter.’’ The second was
‘‘evidence pertaining to [the decedent’s] lost income
claims of Social Security and pension . . . .’’ The third
matter that the plaintiff raises as a claim of evidentiary
error is as follows: ‘‘The court . . . precluded all pro-
bate administration costs from the damage claim, with
the exception of funeral and burial expenses . . . .’’
In part I of this opinion, we concluded that, on the
basis of the evidence presented with respect to the
essential element of causation, the plaintiff failed to
establish a prima facie case. Accordingly, we concluded
that the court properly granted the defendants’ motions
for a directed verdict. No aspect of the plaintiff’s second
claim impacts our analysis of the claim addressed in
part I of this opinion. Because the claim addressed in
part I is dispositive of this appeal, we need not and do
not reach the merits of the second claim.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The plaintiff also named Philips Healthcare Informatics, Inc., and Konin-
klijke Philips Electronics NV, as defendants. Later, during the course of the
trial, the plaintiff withdrew claims against these parties, and they are not
parties to the present appeal. We refer to Lifeline and VNA individually by
name where necessary, and collectively as the defendants.
2
In her brief, the plaintiff raises two separate claims with respect to the
causation issue. We address these claims together.
3
Although, in her brief, the plaintiff states that the court failed to comply
with her request for a signed memorandum of decision; see Practice Book
§ 64-1; the court file includes a signed transcript that encompasses the trial
court’s decision.
4
Relying on a sentence in the court’s oral decision, the plaintiff suggests
that the court rendered judgment for one, but not both, of the defendants.
This suggestion contradicts the plaintiff’s appeal form, on which she
described the judgment from which she appeals in relevant part as ‘‘Orders
Granting Defendants’ Motions for Directed Verdict.’’ (Emphasis added.)
After the court orally stated its decision, the court issued a written order
that rectified any ambiguity in this regard; its order stated in relevant part:
‘‘Motions for directed verdict filed by the defendants are hereby granted.
Judgment is entered in favor of the defendants pursuant to this court’s
decision, entered on the record on March 24, 2015.’’ This ruling in favor of
both defendants is reflected in the court’s judgment file.
5
In this appeal, the plaintiff’s statement of claims does not refer to the
breach of contract cause of action brought against VNA. In the plaintiff’s
analysis of the issue of proximate cause, the plaintiff’s brief contains an
isolated reference ‘‘to the claims against the defendant VNA,’’ but does not
contain an analysis of the court’s ruling as it relates to the breach of contract
cause of action.
Even if we were to conclude that the plaintiff’s proximate cause arguments
were broad enough to encompass both causes of actions brought by the
plaintiff against VNA and, thus, sufficiently challenged the court’s ruling as
it related to the directed verdict rendered with respect to the breach of
contract cause of action, we would reject the claim on its merits. ‘‘The
elements of a breach of contract action are the formation of an agreement,
performance by one party, breach of the agreement by the other party and
damages.’’ (Internal quotation marks omitted.) Sullivan v. Thorndike, 104
Conn. App. 297, 303, 934 A.2d 827 (2007), cert. denied, 285 Conn. 907, 908,
942 A.2d 415, 416 (2008). In a breach of contract action, ‘‘[t]he causation
requirement focuses on whether a loss may fairly and reasonably be consid-
ered [as] arising naturally, i.e., according to the usual course of things, from
such breach of contract itself. . . . [U]nder Connecticut law, the causation
standard applicable to breach of contract actions asks not whether a defen-
dant’s conduct was a proximate cause of the plaintiff’s injuries, but rather
whether those injuries were foreseeable to the defendant and naturally and
directly resulted from the defendant’s conduct.’’ (Citations omitted; internal
quotation marks omitted.) Meadowbrook Center, Inc. v. Buchman, 149 Conn.
App. 177, 187–89, 90 A.3d 219 (2014). ‘‘[T]he nonbreaching party may recover
only for damages that are direct[ly] and proximate[ly] caused by a defen-
dant’s breach of contract, causation is an element—and a crucial one—of
the plaintiff’s prima facie case.’’ (Internal quotation marks omitted.) McCann
Real Equities Series XXII, LLC v. David McDermott Chevrolet, Inc., 93
Conn. App. 486, 504, 890 A.2d 140, cert. denied, 277 Conn. 928, 895 A.2d
798 (2006). Thus, consistent with the other causes of action set forth in her
complaint, in the breach of contract count, the plaintiff bore the burden of
proving that VNA’s conduct was a cause in fact of the injuries for which
compensation was sought, all of which were inherently related to the dece-
dent’s death. Our analysis in this claim, therefore, applies to the court’s
ruling with respect to the breach of contract cause of action as well.
6
The plaintiff asserts that the jurors could have resolved the issue of
causation in the present case, without the guidance of expert testimony, by
bringing to bear their everyday experiences in life. She argues: ‘‘A complex
medical opinion was not required for causation in this case because it was
for the jury to decide based upon common everyday experience whether
[the decedent] remaining on the floor was a substantial factor in causing
her any injury, up to and including death. The trial court’s emphasis in its
decision on time and cause of death was misplaced because the jury would
have only needed evidence about how long it took [for the decedent] to die
in order to decide the issue of damages because . . . the issue of a lingering
death would allow jurors to reach back to the antecedent harmful results
of [the decedent] waiting for an ambulance that never came . . . .’’ (Empha-
sis omitted; internal quotation marks omitted.) The plaintiff’s argument in
this regard appears to focus on the issue of foreseeability, not cause in fact.
To the extent that her argument applies to the issue of cause in fact, it
suffices to observe that, even if we were to agree with the plaintiff’s argument
that the types of cause in fact issues raised by her complaint were within
the everyday life experience of the average juror, she nonetheless failed to
demonstrate, absent expert opinion, why the decedent collapsed or died;
the time that elapsed, if any, between when she collapsed and her death;
and, thus, whether, while still alive, she endured any amount of time waiting
for emergency help to respond.
7
Section 323 of the Restatement (Second) of Torts provides: ‘‘One who
undertakes, gratuitously or for consideration, to render services to another
which he should recognize as necessary for the protection of the other’s
person or things, is subject to liability to the other for physical harm resulting
from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or (b)
the harm is suffered because of the other’s reliance upon the undertaking.’’
8
As stated previously, the plaintiff expressly argues that the defendants
caused physical harm in that the decedent suffered a GI bleed and collapsed.
This argument is puzzling in light of the plaintiff’s arguments generally that
focused on the decedent’s alleged physical and mental suffering following
her collapse. In construing the evidence, as a whole, in the light most
favorable to the plaintiff, we have considered the plaintiff’s claim in terms
of any type of physical harm demonstrated by the evidence.
9
During examination outside of the presence of the jury, Zagieboylo
repeatedly expressed his inability to opine with respect to the actual cause
of the decedent’s death. Zagieboylo opined that the GI bleed contributed
to the decedent’s death, but also opined that any attempt by him to testify
with respect to the actual cause of death would be ‘‘speculative.’’ The court,
in explaining the weaknesses in the plaintiff’s case-in-chief, highlighted some
of this testimony in its decision. In part, Zagieboylo testified that possible
causes of death included cerebral vascular disease, stroke, and coronary
artery disease. Zagieboylo stated that he did not know how long the decedent
was lying on the ground prior to her death. Also, he testified that he was
unable to opine that the decedent had experienced lightheadedness or dizzi-
ness, or that the decedent had collapsed because of such symptoms. Zagie-
boylo testified that he was not able to testify that it was more likely than
not that, had the decedent activated the Lifeline system prior to falling, and
emergency care had arrived within ten minutes, she would have lived.
10
In discussing the evidence presented with respect to causation, the
plaintiff refers to testimony from Randolph, an engineer. She refers to Ran-
dolph’s opinion with respect to defects in the Lifeline system, not the timing
of or cause of the decedent’s death. Randolph’s testimony is not relevant
to the present analysis.
11
Wilson, an advanced EMT, lacked the requisite education or training to
have rendered an admissible opinion with respect to the decedent’s cause
of death or how long she may have remained alive following the symptoms
that may have preceded her death. We observe that, during examination
outside of the presence of the jury, Wilson testified with respect to her
belief that issues concerning the cause or timing of the decedent’s death
were outside of her field of expertise.
12
It suffices to observe that many of the plaintiff’s arguments before this
court focus on the foreseeability of the decedent’s death, not its cause in
fact. The plaintiff heavily relies on a trial level decision, Aherne v. Lifeline
Systems, Inc., Superior Court, judicial district of New Haven, Docket No.
CV-99-0269317-S (March 21, 2003), a case in which the cause in fact of the
plaintiff’s injuries did not appear to be in dispute. Aherne is materially
distinguishable from the present case and, to the extent that the plaintiff
relies on Aherne for the proposition that the court’s causation analysis in
the present case should have focused on the foreseeability of the plaintiff’s
damages rather than their cause in fact, for the reasons we already have
discussed in this opinion, such an interpretation is legally flawed.
13
There was, in fact, some evidence to suggest that the decedent suffered
an immediate death and did not, as the plaintiff alleged, consciously suffer
on the floor of her residence while waiting for help to arrive. Wilson testified
that the decedent’s body was discovered face down on the floor. The dece-
dent’s head was not tipped to one side, her nose had been pushed into her
head by the weight of her body, and her arms were positioned completely
under her torso. Wilson testified that ‘‘it’s just instinct to break your fall
and . . . put your arms out and protect your face and your head if you’re
going to fall, if you know you’re going to fall . . . you . . . grab on to
something or brace yourself or turn your head, and she was like this on
the floor.’’ Thus, Wilson testified that the position of the decedent’s body
suggested that it did not appear to her that the decedent consciously took
any defensive action when she fell to the ground.