John Ahern, et al. v. Fuss and O'Neill, Inc.

Seven years after the purchase of a building
on the Scantic River, in Somers, for possible conversion
into a residential development, the Federal
Emergency Management Administration revised a flood
insurance map so that the property became unsuitable
for the proposed development. The map revision
resulted from the belated discovery of a discrepancy
in previously existing documents describing the flood
plain. The owner sought to recoup its losses from two
engineering firms that, while hired to evaluate the technical
feasibility of the proposed development, did not
question the reliability of the flood map that existed
when they performed their services for the owner. The
principal issue in this case is whether, in its pursuit of a
claim of professional malpractice, the owner adequately
disclosed the proposed testimony of an expert witness
about the standard of care applicable to the professional
services of the engineering firms. The trial court rendered
judgments in favor of the engineering firms and,
in part, in favor of an additional defendant, the town
of Somers (town), against which the owner had brought
other claims of misconduct. The owner has appealed.
We affirm the judgments rendered by the trial court.

On June 11, 1996, the plaintiff Somers Mill Associates,
Inc.,1 filed a complaint against the defendants Fuss &
O'Neill, Inc. (Fuss & O'Neill), and Lenard Engineering,
Inc. (Lenard), for engineering malpractice.2 In the same
complaint it charged the town with having created a
nuisance and with having violated the plaintiff's constitutional
rights under 42 U.S.C. § 1983.3 Each of the
defendants, after denying liability and filing special
defenses, moved for summary judgment. The trial court
granted each motion.

On June 11, 1996, the plaintiff Somers Mill Associates,
Inc.,1 filed a complaint against the defendants Fuss &
O'Neill, Inc. (Fuss & O'Neill), and Lenard Engineering,
Inc. (Lenard), for engineering malpractice.2 In the same
complaint it charged the town with having created a
nuisance and with having violated the plaintiff's constitutional
rights under 42 U.S.C. § 1983.3 Each of the
defendants, after denying liability and filing special
defenses, moved for summary judgment. The trial court
granted each motion.

I.

CLAIMS AGAINST THE ENGINEERING FIRMS

The plaintiff claims that Fuss & O'Neill and Lenard
(the engineering defendants) each engaged in professional
malpractice in their feasibility studies to determine
whether the plaintiff's property, known as the
Somers Mill, could be converted into a residential development.
Specifically, the plaintiff alleges that each of
the defendant engineering firms negligently represented
that no floor of the building above the basement was
within the 100 year flood plain. According to the plaintiff,
these representations were negligent because they
failed to disclose a possible error in the federal flood
map that was then the official document describing the
flood plain.

The engineering firms denied having made the representations.
They also challenged the assertion that they
had a duty to investigate the reliability of the flood map.

Many of the relevant facts are undisputed. In 1988,
the plaintiff purchased the Somers Mill, a commercial
building on Maple Street in Somers. Because the Somers
Mill straddles the Scantic River, the plaintiff knew that
the property was at risk of flooding.

In the spring of 1989, the plaintiff hired Fuss & O'Neill
to perform engineering services to determine the feasibility
of renovating the Somers Mill for residential purposes.
Fuss & O'Neill performed some preliminary
survey work for the plaintiff, investigated wetlandsrelated
issues and gathered materials for later design
work. Some six months later, the plaintiff terminated
its relationship with Fuss & O'Neill because of dissatisfaction
with the performance of Fuss & O'Neill on an
unrelated project. At that time, Fuss & O'Neill had not
yet completed a boundary or topographic survey, had
not issued any documents to the plaintiff and had not
generated any plans for the plaintiff's review. Fuss &
O'Neill was never paid for the work it had done.

The plaintiff alleges, however, that, in June, 1989,
one of Fuss & O'Neill's employees represented to the plaintiff that the first floor of the Somers Mill building
was located at an elevation of approximately 182 feet,
that the 100 year flood level at the face of Somers Mill
was approximately 180 feet, and that the first floor was
therefore above the 100 year flood elevation and usable
for residential purposes. The plaintiff alleges that
Fuss & O'Neill's representation was actionable as a
negligent misrepresentation.

In early January, 1990, the plaintiff hired Lenard to
prepare a complete site analysis, and to review and to
do a feasibility study of the floodway to determine the
100 year flood level as it would affect the Somers Mill's
floors. Lenard's analysis showed that the first floor of
the Somers Mill was outside or above the 100 year flood
level. In light of Lenard's positive report, the plaintiff
decided to pursue residential development of the Somers
Mill. The plaintiff alleges that Lenard's analysis was
also actionable as a negligent misrepresentation.

The plaintiff then hired Doane Engineering (Doane),4
which prepared a site plan for the development of 102
residential units in the Somers Mill. On March 20, 1991,
Doane submitted this site plan to the town planning
commission with an application for a special use permit.
As did its predecessors, Doane relied on the then
existing flood map to support its representation that
the Somers Mill could be used for residential purposes.

On July 11, 1991, a Doane engineer alerted the Boston
office of the Federal Emergency Management Administration
to a discrepancy between the base flood elevation
of 180 feet shown on the flood map and the base
flood elevation of 188.7 feet shown on a flood insurance
study. Doane did not, however, alter its application for
a special use permit.

On October 7, 1991, the planning commission denied
the plaintiff's application for a special use permit on
grounds unrelated to the flood plain problem. After
lengthy unsuccessful settlement efforts, the plaintiff's
appeal from the commission's denial resulted, on March
23, 1995, in a remand of the application to the town for
reconsideration.

On June 16, 1995, the Federal Emergency Management
Administration issued a formal ‘‘Letter of Map
Revision'' for the area that includes the Somers Mill.
The revision raised the original 100 year flood elevation
from 180 feet to 189 feet. The Letter of Map Revision
acknowledged that the revision was issued to correct
the Administration's mistake in transferring data from
its flood study to its flood map. Under the revised flood
map, the first floor of the Somers Mill was below the
base flood elevation.

Although the planning commission nevertheless
approved the plaintiff's conversion plan on October 2,
1995, the approval was contingent on a revision of the
site plan so that no residential floor of the building would be below the 100 year flood elevation. The plaintiff
decided that the required revision made it unfeasible
to pursue residential development of the Somers Mill.
It then brought the present action seeking recovery of
its losses, which allegedly were caused by the negligent
misrepresentations of the defendant engineering firms.

The plaintiff recognized that its claims against these
defendants involved issues of professional malpractice
on which it could not prevail without presenting expert
evidence. ‘‘The requirement of expert testimony . . .
serves to assist lay people, such as members of the jury
and the presiding judge, to understand the applicable
standard of care and to evaluate the defendant's actions
in light of that standard.'' Davis v. Margolis, 215 Conn.
408, 416, 576 A.2d 489 (1990). Expert testimony is
required ‘‘when the question involved goes beyond the
field of the ordinary knowledge and experience of
judges or jurors.'' Bader v. United Orthodox Synagogue,
148 Conn. 449, 454, 172 A.2d 192 (1961); accord Santopietro
v. New Haven, 239 Conn. 207, 226–27, 682 A.2d
106 (1996); Matyas v. Minck, 37 Conn. App. 321, 326–27,
655 A.2d 1155 (1995).

To satisfy this requirement, the plaintiff filed a disclosure
of the expert witnesses it intended to call to testify
at trial. See Practice Book § 13-4 (4). The only expert
whom the plaintiff planned to present on the subject
of engineering malpractice was Edward Chiang, a professional
engineer. The plaintiff disclosed that Chiang
was expected to testify about ‘‘the standard of care of
engineers in performing professional services and about
hydraulic engineering as it relates to the subject property
and the Scantic River.'' The disclosure stated that
he would testify that a reasonably competent engineer
engaged to plan the development of the Somers Mill
would have determined that the flood levels of the river
severely impacted and limited the development of the
property and would have informed the plaintiff of
that risk.5

In a subsequent written report, Chiang expressed his
opinion that a competent engineer would have discovered
the discrepancy in the base flood level as shown
in the floodway map and the flood insurance study.
Chiang further opined that, even without this discrepancy,
a competent engineer would have performed a
detailed analysis to confirm the flood level at the Somers
Mill.

At his deposition, Chiang described himself as an
expert in the area of hydraulics and storage reservoirs.
He had been hired, he testified, to evaluate the flood
level and to ascertain the potential impact of a flood
on the Somers Mill. He also had undertaken to determine
what measures could possibly lower the flood
level.

Chiang stated that he never had inquired into the applicable standards of professional practice for the
engineering firms that rendered engineering services
for the development of the Somers Mill project. He
had no opinion about whether either of the defendant
engineering firms had violated the applicable standard
of care for a professional engineering firm. With respect
to Fuss & O'Neill, he testified: ‘‘I'm not quite sure what
exactly they did, so it really [is] difficult for me to give
you my opinion about what they did. I only can give
you what I think should be done.'' He took the same
position with respect to Lenard. He did not know ‘‘who
did what'' at the Somers Mill.

The defendants objected to the lack of specificity in
the disclosure of Chiang's proposed testimony. They
stressed that Chiang had no knowledge of their engineering
operations or of the scope of the work that
they had agreed to undertake and had performed. They
emphasized Chiang's lack of knowledge about the standard
of care for engineers engaged in determining the
feasibility of a proposed development project.

On February 2, 2001, the trial court issued an order
to the plaintiff to provide detailed signed statements of
the specific opinion or opinions of the expert and of
the bases for those opinions. The court warned that
‘‘[a]n opinion not in the statement will not be admitted
at the trial.'' The plaintiff has not challenged the validity
of this court order.

In their motions for summary judgment, the defendant
engineering firms argued that the plaintiff had
not presented a sufficient basis for the presentation of
Chiang's expert testimony at trial. The plaintiff virtually
concedes that the disclosures of Chiang's proposed testimony
lack precision. It maintains, however, that it
should be afforded the opportunity to flesh out these
disclosures at trial by posing hypothetical questions to
Chiang that would describe the underlying facts. Under
the circumstances of this case, we disagree.

It is true that, at trial, an expert ordinarily may
express his opinion in response to a hypothetical question
that is based on the essential facts in the case.
Conn. Code Evid. § 7-4 (c); see, e.g., Keeney v. L & S
Construction, 226 Conn. 205, 213, 626 A.2d 1299 (1993).
The issue in this case is whether this rule applies in
the face of a challenge to the adequacy of the pretrial
disclosure of an expert witness. To put it differently,
can a plaintiff cure defects in pretrial disclosure by
hypothetical questions at trial? Keeney did not resolve
this issue because, in that case, no one challenged the
qualifications of the expert witnesses. Id.

Several decisions of this court have affirmed trial
court decisions that limited expert testimony to the
subject matter that had been expressly disclosed in
pretrial reports and depositions. See e.g., Ciarlelli v.
Romeo, 46 Conn. App. 277, 280–81, 699 A.2d 217, cert. denied, 243 Conn. 929, 701 A.2d 657 (1997); Kemp v.
Ellington Purchasing Corp., 9 Conn. App. 400, 404–405,
519 A.2d 95 (1986); Sturdivant v. Yale-New Haven Hospital,
2 Conn. App. 103, 106–108, 476 A.2d 1074 (1984).
These holdings are particularly persuasive in this case
in light of the unchallenged order of the trial court that
any expert opinion not disclosed pretrial would not be
admitted at trial.

We conclude that the trial court properly granted the
motions for summary judgment filed by Fuss & O'Neill
and Lenard. To prevail against these defendants, the
plaintiff had to present expert evidence at trial. To present
such evidence at trial, the plaintiff had to make a
pretrial disclosure identifying its proposed expert. This
disclosure had to describe the substance of the expert's
opinion about the manner in which these defendants'
professional conduct deviated from the standard of care
of engineers hired to make a feasibility study of the
plaintiff's plan for converting the Somers Mill into a
residential facility. Once the court required the plaintiff
to produce a more specific expert opinion, the plaintiff
had to disclose an expert's statement that these defendants
acted negligently in failing to discover a discrepancy
between a governmental flood plain study and a
governmental flood plain map. In the absence of the
required disclosures, the trial court properly rendered
judgment for these defendants.

II.

CLAIMS AGAINST THE TOWN

The plaintiff has asserted two claims against the town
that are presently reviewable.6 In count four of its complaint,
the plaintiff alleged that the town had created
an absolute private nuisance by its erection and maintenance
of the Maple Street bridge. The bridge is immediately
upstream from the Somers Mill. In count six of
its complaint, the plaintiff alleged that the town had
violated 42 U.S.C. § 1983 by changing its position about
the flood level of the Scantic River.

The trial court granted the town's motion for summary
judgment on the nuisance claim because the plaintiff's
expert, Edward Chiang, testified at his deposition
that removal of the Maple Street bridge would not
reduce the flood level at the Somers Mill. Although the
plaintiff's complaint alleged, in count four, paragraph
eleven, that ‘‘[i]n the absence of the Maple Street Bridge,
the 100 year flood elevation at the upstream face of the
Somers Mill would be at a level which would permit its
use and development for residential purposes,'' Chiang
stated at his deposition that he did not agree with
that allegation.

The plaintiff argues that Chiang's statement at his
deposition was not definitive because, in a written
report, Chiang had stated that ‘‘[t]he flow velocity of a
100-year return frequency passing through the Maple Street Culverts is too high. The Maple Street Bridge
and the Somers Mill Building are located too close to
one another. Moreover, the crowns (i.e., ceilings) of
the arch culverts and the culverts beneath the Somers
Mill Building are at different elevations. As a result,
the high velocity associated with the flood flow would
generate excessive turbulence in the area between the
Maple Street Bridge and the Somers Mill Building which
may cause serious damage to the building under flood
conditions.'' Chiang opined that the flood level at the
Somers Mill could be reduced by ‘‘increasing the crosssectional
flow area of the Maple Street Culverts to 945
square feet and the culvert beneath the Somers Mill
Building to 360 square feet.'' According to the plaintiff,
Chiang's report should be construed to state that the
removal of the Maple Street bridge is necessary but not
sufficient to lower the flood elevation to the point at
which development of the Somers Mill would be
legally permissible.

The plaintiff argues, therefore, that even if the Maple
Street bridge is not the sole proximate cause of the
plaintiff's problem, a jury reasonably could find that it
is a substantial factor in the flood level at the Somers
Mill. For this reason, the plaintiff claims that the trial
court improperly granted the town's motion for summary
judgment with respect to count four.

The town maintains, to the contrary, that the court
properly granted its motion for summary judgment. It
argues that the plaintiff is bound by the allegations of
causation that were stated in its complaint. The plaintiff
did not amend, or seek permission to amend, its complaint
to incorporate a claim that the Maple Street
bridge was a substantial factor in the losses that the
plaintiff has suffered. Its ‘‘substantial factor'' argument
therefore lacks a procedural base.

We agree with the town that a party cannot present
a case to the trial court on one theory and then seek
appellate relief on a different one. Sorrentino v. All
Seasons Services, Inc., 245 Conn. 756, 770, 717 A.2d
150 (1998); see Treglia v. Zanesky, 67 Conn. App. 447,
457–58, 788 A.2d 1263 (2001), cert. denied, 259 Conn.
926, 793 A.2d 252 (2002). The difference between ‘‘sole
proximate cause'' and ‘‘substantial factor'' analysis is
not an immaterial variance as that phrase is used in
Practice Book § 10-62.7

We conclude, therefore, that the trial court properly
granted the town's motion for summary judgment on
the plaintiff's claim of nuisance. The plaintiff has cited
no case that permits an end run around a summary
judgment on the basis of a claim that was not advanced
in the pleadings that underlay the judgment rendered
by the court.

The plaintiff's alternate claim against the town
alleges, in count six of the complaint, that the town deprived the plaintiff of its constitutional right to due
process of law in violation of 42 U.S.C. § 1983. The
§ 1983 claim has two parts. According to the plaintiff,
the town is liable for the misconduct of the town sanitarian,
who intentionally or recklessly misrepresented the
flood level at the Somers Mill to be 180 feet even though
he knew that the flood level was substantially higher.
In addition, the town is liable for its policy decision to
change its position with respect to the flood level to
189 feet so as to conform with the federal flood map
as revised in 1995.

The trial court concluded that the town was entitled
to summary judgment on this count because the plaintiff
had not alleged that the town deliberately had chosen,
as a matter of policy, to revise the flood plain map. The
town's adoption of the revised map did not reflect its
own policy decision to change the flood map. It was
not the town's prerogative to set, adopt, promulgate or
otherwise establish the 100 year flood elevation. It was,
instead, the Federal Emergency Management Administration
that established the revised 100 year flood elevation.

The trial court properly relied on Tedesco v. Stamford,
215 Conn. 450, 576 A.2d 1273 (1990), on remand,
24 Conn. App. 377, 588 A.2d 656 (1991), rev'd, 222 Conn.
233, 610 A.2d 574 (1992), in which our Supreme Court
held that ‘‘[m]unicipal liability under § 1983 attaches
where - and only where - a deliberate choice to follow
a course of action is made from among various alternatives
by city policymakers.'' (Internal quotation marks
omitted.) Id., 456–57. The trial court noted that the
plaintiff had failed to identify the alternatives the town
should have considered before it acquiesced in the decision
of the Federal Emergency Management Administration.

The plaintiff concedes that it was the Federal Emergency
Management Administration and not the town
that had the responsibility to publish a correct flood
map to establish the 100 year flood elevation. It argues,
however, that the town had the option whether to participate
in the National Flood Insurance Program. That
choice, according to the plaintiff, is sufficient underpinning
for its § 1983 claim.8 Even if this were a meaningful
choice, the plaintiff has not alleged that the town's
election to participate in the National Flood Insurance
Program was a new decision or a change of policy that
occurred in 1995. The plaintiff was on notice of the
town's policy when it bought the Somers Mill in 1988.

In the absence of any allegations that the town had
adopted a policy or continued a custom that resulted in
a deprivation of the plaintiff's constitutionally protected
property interest, there is no basis for the plaintiff's
§ 1983 claim. Weconclude, therefore, that the trial court
properly granted summary judgment in favor of the
town on count six.

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