COBURN v. LENOX HOMES INC.

Docket Not Available

186 Conn. 370 (1982) | Cited 70 times | Supreme Court of Connecticut | March 2, 1982

The plaintiffs are the remote purchasers ofresidential property located at fifty-sevenPheasant Run Road, Wilton, developed and soldby the defendant. The subsurface sewage disposalsystem1 (hereinafter septic system) whichwas intended to service the five-bedroom houselocated on the property, was allegedly constructedby the defendant in 1972. It failed two andone-half years after its installation and three monthsafter the plaintiffs took possession of theproperty which they purchased from the originalbuyers in 1974. The failure of the septic systemto accommodate the sewage flowing into it resultedin effluent surfacing in the plaintiffs' backyard.2 In Coburn v. Lenox Homes, Inc.,173 Conn. 567, 378 A.2d 599 (1977), this courtaffirmed the dismissal of the plaintiffs' actionagainst the defendant grounded on impliedwarranty, contract and express warranty becausethe plaintiffs lacked contractual privity with thedefendant. Id., 570-73. We did not, however, viewthe lack of privity to be fatal to the plaintiffs'tort action. Id., 573-74; see Morris v. Holt,380 Mass. 133, 136, 401 N.E.2d 851 (1980). Accordingly,we remanded the case for a trial on the merits ofthe negligence count. Co burn v. Lenox Homes,Inc., supra, 574.

In this appeal the defendant challenges the proprietyof the award of $16,390 damages to the plaintiffs,

[186 Conn. 372]

     representing the cost of designing andinstalling an effective replacement system, aftera trial to the court during which the defendantcalled no witnesses. The defendant claimsspecifically that the court erred in (1) findingthat the defendant had constructed the septicsystem; (2) ruling that the defendant owed theplaintiffs a duty of care; (3) admitting intoevidence an uncertified copy of state regulationsthat provided the foundation for finding a breachof the standard of care established therein; (4)finding that the defendant breached the common lawstandard of care; (5) finding that the defendant'salleged negligence was the proximate cause of theplaintiffs' harm; and (6) finding that the plaintiffs'actions were not the proximate cause of theseptic system failure.

Recovery of damages in negligence requires proofby a fair preponderance of the evidence that theactor owed a duty of care to the victim, which wasbreached by the actor's failure to meet thestandard of care arising therefrom and that thebreach was the proximate cause of actual harmsuffered by the victim. See, e.g., Hoelter v.Mohawk Service, Inc., 170 Conn. 495, 501-502,365 A.2d 1064 (1976); McDonough v. Whalen,365 Mass. 506, 514, 313 N.E.2d 435 (1974). See generallyProsser, Law of Torts (4th Ed.) pp. 143, 208;Wright & Fitzgerald, Conn. Law of Torts (2d Ed.)pp. 33-41.

Testimony at the trial established the followingfacts regarding the operation of a septic system:The purpose of a septic system is to convert wastematerial into liquid suitable for entry intoground water. Sewage is first collected in aseptic tank where much of the solid waste settles.What remains after settling is liquid effluentwhich contains particles of solid waste.

[186 Conn. 373]

     In the subject system, the effluent wascollected in galleries before entryinto the surrounding soil. A gallery, which isoften part of a septic system, is a large trenchlined with blocks or concrete and usually coveredwith a lid, which controls the level of effluententering into the surrounding soil and makes wayfor the entry of fresh effluent into the gallery.The trench is customarily four feet wide andeither two or four feet deep, depending onanticipated use. The system constructed by thedefendant was two feet deep. Effluent leaches outthrough perforations in the sides of the galleryinto surrounding soil, or leaching area, unlessthe soil is saturated, as was the case here.

The design of a septic system dependsprincipally upon the type of soil into which theeffluent leaches. The soil's drainage character isimportant because the effluent must interact withsoil bacteria to accomplish the final renovationof waste material before its entry into areaground water. To provide effluent with sufficientinteraction with soil in the leaching area, theseptic system should not be constructed too nearthe ground water table or ledge rock under theleaching area.3

I

The defendant first claims that there was nodirect evidence to support the allegation that itconstructed the septic system on the property orever owned the property which the plaintiffs laterpurchased. In its memorandum of decision the trialcourt found that the defendant had installed the system.Although it is clear that an installer, a Mr. Francoletti,actually installed the system, it is also clear

[186 Conn. 374]

     that the trial court used the term "installed" ina broader sense, to include the design and otheraspects of septic system construction. Thecertified copy of a subdivision map filed July 3,1969 in the town of Wilton, the town approval fora subsurface disposal system dated April 4, 1972,the application for permission to construct asewage disposal system signed by the installer,and two town planning and zoning commissionresolutions granting conditional approval tosubdivide, all indicate that the defendant ownedthe subject lot. Moreover, the town plannertestified that the defendant applied forpermission to subdivide the property whichincludes the subject lot, and the town approval ofthe system lists the defendant as the builder ofthe System. The defendant offered no evidence torebut this testimony or documentary evidence. Wehold the record is sufficient to find that thedefendant designed and constructed the septicsystem on the lot which it at one time owned. SeeCoburn v. Lenox Homes, Inc., supra, 569.

II

The defendant's second claim of error is thatthe plaintiffs did not prove at trial that thedefendant owed them any duty of care as alleged intheir complaint because they did not introduceinto evidence the construction contract betweenthe defendant and the original purchasers of thesubdivision lot, James E. and Joyce D. Buenger.The defendant interprets the plaintiffs' complaintto allege a duty of care arising only from theconstruction contract between the Buengers and thedefendant to which contract the plaintiffs aresuccessors and assigns. We do not read thecomplaint so narrowly. A fair reading of thenegligence count discloses that in addition

[186 Conn. 375]

     to the duty which allegedly arose from the constructioncontract, the plaintiffs alleged that the defendantowed a duty to the plaintiffs to construct theseptic system in a good, substantial, workmanlikemanner. Because the plaintiffs alleged a commonlaw duty of care, the failure to introduce directevidence of the existence of a contract betweenthe defendant and the first purchasers is notfatal to the plaintiffs' recovery in negligence.

The existence of a duty of care is an essentialelement of negligence. E.g., Frankovitch v.Burton, 185 Conn. 14, 20, 440 A.2d 254 (1981). Aduty to use care may arise from a contract, froma Statute, or from circumstances under which areasonable person, knowing what he knew or shouldhave known, would anticipate that harm of thegeneral nature of that suffered was likely toresult from his act or failure to act. See Co burnv. Lenox Homes, Inc., supra, 575-76; Neal v.Shiels, Inc., 166 Conn. 3, 12-13, 347 A.2d 102(1974); Connecticut Savings Bank of New Haven v.First National Bank & Trust Co. of New Haven,138 Conn. 298, 303-304, 84 A.2d 267 (1951); Orlo v.Connecticut Co., 128 Conn. 231, 237, 21 A.2d 402(1941). See generally Wright & Fitzgerald, supra,33. When negligent construction is alleged theplaintiff must prove that the defendant knew orshould have known of the circumstances that wouldforeseeably result in the harm suffered. SeeJohnson v. Healey, 176 Conn. 97, 103, 405 A.2d 54(1978), aff'd on other grounds, 183 Conn. 514,440 A.2d 765 (1981). "Where there is a duty offinding out and knowing, negligent ignorance hasthe same effect in law as actual knowledge." Lippittv. Ashley, 89 Conn. 451, 464, 94 A. 995 (1915),quoting Lowndes v. City National Bank

[186 Conn. 376]

     of South Norwalk, 82 Conn. 8, 16, 72 A. 150(1909); see, e.g., Prosser, supra, 157; Wright& Fitzgerald, supra, 41.

In finding all the issues for the plaintiffs thetrial court ruled that the defendant owed a dutyof care to the plaintiffs.4 Although the courtdid not express the factual basis for this ruling,the testimony and documentary evidence introducedat trial disclosed that the defendant should haveknown that the septic system it designed andplanned to have installed was likely to fail inthe manner that occurred in the present case.

For the purpose of designing an effective septicsystem, the type of soil in the leaching area isdetermined by a percolation test which ascertainsthe rate of water seepage into a percolation testhole and by an examination of the color andtexture of the soil. The building inspector forthe town of Wilton testified that, at thedefendant's request, one, or possibly twopercolation tests were performed on the propertyon April 3, 1972 by an employee of his office.Informal town records of the test do not divulgewhere the hole was dug. The town record indicatesthat a seven foot deep hole disclosed no groundwater, but does not indicate the percolation rate.The building inspector examined the system priorto June 27, 1972, the date on which it wascovered, and observed 720 square feet of effectiveleaching area, which exceeded the 625 square feetrequired by the town for its approval of the septicsystem. This requirement was based on a type "A"

[186 Conn. 377]

     soil which has the fastest percolation rate. Ifthe soil had had a slower percolation rate, theleaching area would have been too small toaccommodate the effluent. The application forpermission to construct or repair a sewagedisposal system submitted to the town buildinginspector on August 25, 1972 indicated type "B"Soil. The professional engineer who inspected thesystem on December 31, 1974 observed type "D" soil"at best" in each of three percolation test holes.On that date the town sanitarian observed type "D"in two test holes and type "E" in a third hole.These inspections in 1974 also revealed unusuallyand unacceptably high ground water and ledge rocklevels in the leaching area.

The defendant claims to have had no notice ofthese subsurface soil, water and ledge rockconditions that would foreseeably result in theparticular failure of the system that occurred inthe present case. From a review of the transcript,we hold that the trial court could reasonably havefound that the defendant should have known ofthese conditions. The town sanitarian testifiedthat in late 1974 he observed vegetation above theleaching area of such a nature as to indicate ahigh ground water table, a condition which waslikely to have existed in 1972. The Wilton townplanner testified that the planning and zoningcommission for the town of Wilton conditionedapproval of the lot located at fifty-sevenPheasant Run Road upon the defendant's providing areport from an engineer stating that the soil wassuitable for residential buildings. A commissionresolution dated April 8, 1969 and another datedNovember 23, 1970 documented this testimony.

[186 Conn. 378]

     According to the town planner and the buildinginspector, no engineer's report was filed by thedefendant.5

Finally, the leaching area surrounding thegallery consisted of some silt, which has a veryslow percolation rate, and approximately 30percent builder's fill. Builder's fill is rocks,scraps of wood and cable, and other refuse of abuilding site. Because such fill would not providethe necessary bacterial action on effluentinherent in soil, it is customarily not acceptablefor a leaching field.

From the foregoing circumstances, the defendantshould have known that the proposed leaching fieldhad a percolation rate slower than type "A" soil,that the ground water table and ledge rock levelswere unusually high, and that backfill existed inlarge quantity. Reliance upon the town's testingof the soil and approval of the septic system isrelevant, but does not preclude the inference ofnegligence which may be drawn from actual or constructivenotice of these Substandard conditions. Rodriquez v.Gilbertie, 33 Conn. Sup. 582, 584, 363 A.2d 759(1976). From notice of these substandard conditions,a duty to exercise due care arose.6

[186 Conn. 379]

The defendant's third and fourth claims of errorare each based upon an assertion that theplaintiffs failed to prove that the defendantbreached its alleged duty of care by not meetingthe appropriate standard of care. The defendant'sthird claim of error is that the plaintiffs failedto prove that the defendant violated the statehealth code because the trial court erroneouslyadmitted into evidence, over the defendant'sobjections, a pamphlet purporting to include thecode as effective in 1972. This code, asreproduced in the pamphlet published by the statedepartment of health, provided the foundation formuch, but not all, of the expert testimony relevantto the standard of care owed to the plaintiffsand the breach thereof.

General Statutes 52-166 provides that "[a]nyorder or regulation made by any state official inthe performance of his duties may be proved in anycourt by a copy of such order or regulationcertified by the person having the legal custodyof the same." See generally Roden v. ConnecticutCo., 113 Conn. 408, 416, 155 A. 721 (1931). Ifthis certification procedure is not utilized, thenthe party seeking admission of state regulationsinto evidence must authenticate them properly.Webb v. Czyr Construction Co., Inc., 172 Conn. 88,91, 374 A.2d 125 (1976). If neither of these proceduresis complied with, the admitting court committed patenterror, the harmfulness of which depends upon thefactfinder's use of the evidence. See id., 91, 93.

[186 Conn. 380]

In Webb v. Czyr Construction Co., Inc., supra,this court considered the admissibility of anuncertified pamphlet containing sections of thestate regulations pertaining to the proper designand installation of septic systems. In seeking theadmission of a similar pamphlet upon the testimonyof a professional engineer who was not employed bythe state department of health, the plaintiffs inthe present case did no more to authenticate theregulations than did the plaintiffs in Webb whosought to introduce a pamphlet upon the testimonyof a town sanitarian. Webb v. Czyr ConstructionCo., Inc., supra, 91. Therefore, the trial courterred in admitting the pamphlet.

Unlike the circumstances in Webb, however, wherethe trial court had instructed a jury that violationsof the code would constitute negligence per se, thetrial court's use of the purported code in the presentcase was not harmful. In this nonjury trial, the courtdid not base its holding upon negligence per se,7but upon common law negligence. Nothing in the memorandumof decision suggests that the court used the purported codeto establish the standard of care owed by the defendantto the plaintiffs. Accordingly, the erroneous admission

[186 Conn. 381]

     into evidence of an uncertified and unauthenticated copyof purported state regulations was not reversible error.See, e.g., Anonymous v. Norton, 168 Conn. 421,429-30, 362 A.2d 532, cert. denied, 423 U.S. 935, 96S.Ct. 294, 46 L.Ed.2d 268 (1975).

The defendant's fourth claim of error is thatthe plaintiffs introduced no testimony regardingthe common law standard of care which a skilledbuilder would have exercised under the circumstancesand, hence, the plaintiff did not provethat the defendant failed to meet that standard ofcare. A builder is under "a duty to exercise thatdegree of care which a skilled builder of ordinaryprudence would have exercised under the same orsimilar conditions." Coburn v. Lenox Homes, Inc.,supra, 574; Scribner v. O'Brien, Inc., 169 Conn. 389,400, 363 A.2d 160 (1975); see Monroe v.Hartford Street Ry. Co., 16 Conn. 201, 206,56 A. 498 (1903). Evidence of custom in the trade may beadmitted on the issue of the standard of care, butis not conclusive. Southern New England TelephoneCo. v. D'Addario Construction Co., 33 Conn. Sup. 596,598, 363 A.2d 766 (1976); Rodriquez v.Gilbertie, supra, 584; Wright & Fitzgerald, supra, 35.

In determining whether the defendant met theappropriate standard of care, the trial courtfound it significant that the septic system failedafter an uncommonly brief period of use. Theprofessional engineer who designed the replacementsystem, and the sanitarian for the town of Wiltonboth testified that the normal life expectancy ofa system was fifteen to twenty years at the timeof trial as well as in 1972. The town sanitarianalso testified that a published study on thelongevity of septic systems in Connecticutconcluded that within five years of installation

[186 Conn. 382]

     half of all systems would fail. Both experts,however, testified that it was not normal fora system to fail after only two to three yearsof use.

In addition to this testimony, evidence that thedefendant constructed the septic system after onlyone or two soil percolation tests were conductedsupports the trial court's implicit conclusionthat the defendant failed to exercise the carethat a skilled builder of ordinary prudence wouldhave exercised under the circumstances, whichincluded notice of limiting subsurface soil,ground water and ledge rock conditions.

There was testimony at trial that a skilledbuilder exercising due care should design a systemto accommodate the highest seasonal ground watertable as determined by percolation tests conductedover a period of time. A backhoe must be utilizedto determine the level of ledge rock in variouslocations under the proposed leaching field. Theuse of builder's fill in the leaching field istotally unacceptable because it is contrary tothe fundamental principles of septic systemoperation.

The foregoing circumstances, which do notinclude the multiple code violations testified toat trial, amply support the trial court'sconclusion that the defendant breached its duty ofcare.

IV

The defendant's fifth claim of error is that theplaintiffs failed to prove that the allegednegligence of the defendant was the sole proximatecause of their injury. The defendant particularlyclaims that the plaintiffs' contributory negligence

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     in operating a garbage disposal and water softenerwas the sole proximate cause of the system's failure.8

More than one proximate cause may result in anyharm suffered. E.g., Albert v. Lee Circle, Inc.,162 Conn. 124, 128, 291 A.2d 735 (1971); Magarianv. Bessoni, 160 Conn. 442, 445, 280 A.2d 357(1971). An actual cause that is a substantialfactor in the resulting harm is a proximate causeof that harm. E.g., Ferndale Dairy, Inc. v.Geiger, 167 Conn. 533, 538, 356 A.2d 91 (1975);Magarian v. Bessoni, supra, 445; Mahoney v.Beatman, 110 Conn. 184, 195, 147 A. 762 (1929).Proximate cause results from a sequence of eventsunbroken by a superseding cause, so that itscausal viability continued until the moment ofinjury or at least until the advent of theimmediate injurious force. See Ferndale Dairy,Inc. v. Geiger, supra, 538; Neal v. Shiels, Inc.,166 Conn. 3, 18, 347 A.2d 102 (1974); ConnecticutSavings Bank of New Haven v. First National Bank &Trust of New Haven, 138 Conn. 298, 304,84 A.2d 267 (1951); Howard v. Redden, 93 Conn. 604,611-12, 107 A. 509 (1919). A superseding cause may befound from the contributory negligence of thevictim; Hoelter v. Mohawk Service, Inc., supra,502; if such negligence is greater than thecombined negligence of those against whom recoveryis sought. See General Statutes 52-572h (a). Contributorynegligence which is not a superseding cause resultsin the diminution of damages recovered. Id.9

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Proximate cause is ordinarily a question offact. E.g., Fern dale Dairy, Inc. v. Geiger,supra, 538; Merhi v. Becker, 164 Conn. 516, 521,325 A.2d 270 (1973); Monroe v. Hartford Street Ry.Co., supra, 208. The test for finding proximatecause "is whether the harm which occurred was ofthe same general nature as the foreseeable riskcreated by the defendant's negligence." Merhi v.Becker, supra, 521; see Palsgraf v. Long Island R.Co., 248 N.Y. 339, 350, 354, 162 N.E. 99 (1928)(Andrews, J., dissenting). The foreseeable riskmay include the acts of the plaintiff and of thirdparties. Merhi v. Becker, supra, 522.

The risk created by the defendant's breach ofits duty of care was that the septic system wouldprematurely fail due to the inadequacy of theleaching fields to accommodate a normal productionof effluent. Effluent surfaced from the systembecause the leaching field was not able to absorbit. A letter dated April 1, 1975 from a sanitaryengineer in the environmental health servicesdivision of the state department of health to thedirector of health of the town of Wilton stated:"It appears the existing system failed due toproblems of high seasonal ground water and asystem installed in soil displaying poor seepagecharacteristics with shallow depths to bedrock."That this system failed prematurely wasestablished previously with respect to ourdiscussion of the defendant's breach of its dutyof care.

The defendant claims that the sole proximatecause of the septic system's premature failure was

[186 Conn. 385]

     the plaintiffs' and the Buengers' use of a watersoftener and a garbage disposal. When the plaintiffspurchased the residential property, the house wasequipped with a water softener and a garbage disposalunit. No evidence was introduced from which thecourt could determine who installed these devices.

Expert testimony established that use of a watersoftener, other than a passive filter type,increases the flow of water into a septic systemby approximately twenty gallons per day and thatthe softening chemicals discharged with the waterpossibly may inhibit the soil's bacterial action,and hence the effective operation of the septicsystem. Use of a garbage disposal may decrease thelife of a septic System that is not designed toaccommodate one because of the unusually highlevel of solids in the waste water.

The basis for the trial court's finding for theplaintiffs on the issue of contributory negligencewas not articulated in the memorandum of decision.Even if the court had ruled that the plaintiffshad sufficient notice that use of these deviceswould shorten the life of the septic system togive rise to a duty of care, the court could notreasonably have found that the acts of theplaintiffs and of the Buengers were a proximatecause of the failure on the basis of the factspresented.

An operational study conducted by the professionalengineer who designed the replacement systemdetermined that the plaintiffs' familyintroduced approximately 510 gallons of sewage perday into the septic tank, excluding use of thedisposal which the plaintiffs removed upon takingpossession of the house. Assuming that the water softeneraccounted for twenty of the 510 gallons per day, its use

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     contributed only approximately 4 percent of thetotal sewage. The trial court had no evidence fromwhich to determine the extent of the Buengers' useof either device.

Given the uncertainty of the scant testimonyregarding the causal connection between use of awater softener and a garbage disposal and thefailure of a septic system after only a relativelyshort period of use, the trial court reasonablyfound that the defendant's negligence was the soleproximate cause of the harm suffered by theplaintiffs.

"On appeal, it is the function of this court todetermine whether the decision of the trial courtis clearly erroneous. See Practice Book, 1978,3060D. This involves a two-part function: wherethe legal conclusions of the court are challenged,we must determine whether they are legally andlogically correct and whether they find support inthe facts set out in the memorandum of decision;where the factual basis of the court's decision ischallenged we must determine whether the facts setout in the memorandum of decision are supported bythe evidence or whether, in light of the evidenceand the pleadings in the whole record, [thefinding of] those facts [is] clearly erroneous.That is the standard and scope of this court'sjudicial review of decisions of the trial court.Beyond that, we will not go." (Footnote omitted.)Pandolphe's Auto Parts, Inc. v. Manchester,181 Conn. 217, 221-22, 435 A.2d 24 (1980).

There is no error.

In this opinion the other judges concurred.

1. A "`subsurface sewage disposal system' means aseptic tank followed by leaching pits, trenches,beds or galleries." General Statutes 20-341a (c).

2. Effluent is the liquid remaining after theseptic tank has operated to settle out household waste solids.

3. Ledge rock is customarily defined assubstance which a backhoe cannot penetrate.

4. We note that the defendant did not seek afurther articulation of the basis for the trial

5. Although the precise dimensions of the lotchanged before it was sold, the town plannertestified that the lot was located withinapproximately the same area as the original lot.Our comparison of the original subdivision map andthe map prepared by the engineer who designed thereplacement system discloses that most, if notall, of the septic system was located within theboundaries of the original lot. We also note that more than 19 percent of theproperty consists of a pond.

6. A duty to use care in designing a septic systemunder these circumstances is emphasized by experttestimony that until the failure of a septicsystem becomes manifest by poor drainage from thehouse, or the odor and substance of effluent rising to the landsurface, the failure is not discoverable absent asubsurface inspection of the system. Even athorough surface inspection of the system will notreveal the system's failure to functioneffectively until the failure becomes symptomatic.

7. "Negligence per se operates to engraft aparticular legislative standard onto the generalstandard of care imposed by traditional tort lawprinciples, i.e., that standard of care to whichan ordinarily prudent person would conform hisconduct. To establish negligence, the jury in anegligence per se case need not decide whether thedefendant acted as an ordinarily prudent personwould have acted under the circumstances. Theymerely decide whether the relevant statute orregulation has been violated. If it has, thedefendant was negligent as a matter of law. SeeProsser, Law of Torts 36." Wendland v. RidgefieldConstruction Services, Inc., 184 Conn. 173, 178,439 A.2d 954 (1981); see Panaroni v. Johnson,158 Conn. 92, 101, 256 A.2d 246 (1969); Monroe v.Hartford Street Ry. Co., 76 Conn. 201, 207, 56 A. 498 (1903).

8. The defendant also claims that theintervening owners act of accepting the septicsystem, as installed by an independent contractor,was the proximate cause of the injury. E.g.,Howard v. Redden, 93 Conn. 604, 612, 107 A. 509(1919). Because this defense was not pleaded itarises for the first time on appeal, and wedecline to address it. Practice Book 3063.

9. General Statutes 52-572h (a) provides: "Incauses of action based on negligence, contributorynegligence shin not bar recovery in an action byany person or his legal representative to recoverdamages resulting from injury to persons or damageto property, if such negligence was not greaterthan the combined negligence of the person or personsagainst whom recovery is sought, but any damages allowedshall be diminished in the proportion of the percentageof negligence attributable to the person recovering."Page 387

The plaintiffs are the remote purchasers ofresidential property located at fifty-sevenPheasant Run Road, Wilton, developed and soldby the defendant. The subsurface sewage disposalsystem1 (hereinafter septic system) whichwas intended to service the five-bedroom houselocated on the property, was allegedly constructedby the defendant in 1972. It failed two andone-half years after its installation and three monthsafter the plaintiffs took possession of theproperty which they purchased from the originalbuyers in 1974. The failure of the septic systemto accommodate the sewage flowing into it resultedin effluent surfacing in the plaintiffs' backyard.2 In Coburn v. Lenox Homes, Inc.,173 Conn. 567, 378 A.2d 599 (1977), this courtaffirmed the dismissal of the plaintiffs' actionagainst the defendant grounded on impliedwarranty, contract and express warranty becausethe plaintiffs lacked contractual privity with thedefendant. Id., 570-73. We did not, however, viewthe lack of privity to be fatal to the plaintiffs'tort action. Id., 573-74; see Morris v. Holt,380 Mass. 133, 136, 401 N.E.2d 851 (1980). Accordingly,we remanded the case for a trial on the merits ofthe negligence count. Co burn v. Lenox Homes,Inc., supra, 574.

In this appeal the defendant challenges the proprietyof the award of $16,390 damages to the plaintiffs,

[186 Conn. 372]

     representing the cost of designing andinstalling an effective replacement system, aftera trial to the court during which the defendantcalled no witnesses. The defendant claimsspecifically that the court erred in (1) findingthat the defendant had constructed the septicsystem; (2) ruling that the defendant owed theplaintiffs a duty of care; (3) admitting intoevidence an uncertified copy of state regulationsthat provided the foundation for finding a breachof the standard of care established therein; (4)finding that the defendant breached the common lawstandard of care; (5) finding that the defendant'salleged negligence was the proximate cause of theplaintiffs' harm; and (6) finding that the plaintiffs'actions were not the proximate cause of theseptic system failure.

Recovery of damages in negligence requires proofby a fair preponderance of the evidence that theactor owed a duty of care to the victim, which wasbreached by the actor's failure to meet thestandard of care arising therefrom and that thebreach was the proximate cause of actual harmsuffered by the victim. See, e.g., Hoelter v.Mohawk Service, Inc., 170 Conn. 495, 501-502,365 A.2d 1064 (1976); McDonough v. Whalen,365 Mass. 506, 514, 313 N.E.2d 435 (1974). See generallyProsser, Law of Torts (4th Ed.) pp. 143, 208;Wright & Fitzgerald, Conn. Law of Torts (2d Ed.)pp. 33-41.

Testimony at the trial established the followingfacts regarding the operation of a septic system:The purpose of a septic system is to convert wastematerial into liquid suitable for entry intoground water. Sewage is first collected in aseptic tank where much of the solid waste settles.What remains after settling is liquid effluentwhich contains particles of solid waste.

[186 Conn. 373]

     In the subject system, the effluent wascollected in galleries before entryinto the surrounding soil. A gallery, which isoften part of a septic system, is a large trenchlined with blocks or concrete and usually coveredwith a lid, which controls the level of effluententering into the surrounding soil and makes wayfor the entry of fresh effluent into the gallery.The trench is customarily four feet wide andeither two or four feet deep, depending onanticipated use. The system constructed by thedefendant was two feet deep. Effluent leaches outthrough perforations in the sides of the galleryinto surrounding soil, or leaching area, unlessthe soil is saturated, as was the case here.

The design of a septic system dependsprincipally upon the type of soil into which theeffluent leaches. The soil's drainage character isimportant because the effluent must interact withsoil bacteria to accomplish the final renovationof waste material before its entry into areaground water. To provide effluent with sufficientinteraction with soil in the leaching area, theseptic system should not be constructed too nearthe ground water table or ledge rock under theleaching area.3

I

The defendant first claims that there was nodirect evidence to support the allegation that itconstructed the septic system on the property orever owned the property which the plaintiffs laterpurchased. In its memorandum of decision the trialcourt found that the defendant had installed the system.Although it is clear that an installer, a Mr. Francoletti,actually installed the system, it is also clear

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     that the trial court used the term "installed" ina broader sense, to include the design and otheraspects of septic system construction. Thecertified copy of a subdivision map filed July 3,1969 in the town of Wilton, the town approval fora subsurface disposal system dated April 4, 1972,the application for permission to construct asewage disposal system signed by the installer,and two town planning and zoning commissionresolutions granting conditional approval tosubdivide, all indicate that the defendant ownedthe subject lot. Moreover, the town plannertestified that the defendant applied forpermission to subdivide the property whichincludes the subject lot, and the town approval ofthe system lists the defendant as the builder ofthe System. The defendant offered no evidence torebut this testimony or documentary evidence. Wehold the record is sufficient to find that thedefendant designed and constructed the septicsystem on the lot which it at one time owned. SeeCoburn v. Lenox Homes, Inc., supra, 569.

II

The defendant's second claim of error is thatthe plaintiffs did not prove at trial that thedefendant owed them any duty of care as alleged intheir complaint because they did not introduceinto evidence the construction contract betweenthe defendant and the original purchasers of thesubdivision lot, James E. and Joyce D. Buenger.The defendant interprets the plaintiffs' complaintto allege a duty of care arising only from theconstruction contract between the Buengers and thedefendant to which contract the plaintiffs aresuccessors and assigns. We do not read thecomplaint so narrowly. A fair reading of thenegligence count discloses that in addition

[186 Conn. 375]

     to the duty which allegedly arose from the constructioncontract, the plaintiffs alleged that the defendantowed a duty to the plaintiffs to construct theseptic system in a good, substantial, workmanlikemanner. Because the plaintiffs alleged a commonlaw duty of care, the failure to introduce directevidence of the existence of a contract betweenthe defendant and the first purchasers is notfatal to the plaintiffs' recovery in negligence.

The existence of a duty of care is an essentialelement of negligence. E.g., Frankovitch v.Burton, 185 Conn. 14, 20, 440 A.2d 254 (1981). Aduty to use care may arise from a contract, froma Statute, or from circumstances under which areasonable person, knowing what he knew or shouldhave known, would anticipate that harm of thegeneral nature of that suffered was likely toresult from his act or failure to act. See Co burnv. Lenox Homes, Inc., supra, 575-76; Neal v.Shiels, Inc., 166 Conn. 3, 12-13, 347 A.2d 102(1974); Connecticut Savings Bank of New Haven v.First National Bank & Trust Co. of New Haven,138 Conn. 298, 303-304, 84 A.2d 267 (1951); Orlo v.Connecticut Co., 128 Conn. 231, 237, 21 A.2d 402(1941). See generally Wright & Fitzgerald, supra,33. When negligent construction is alleged theplaintiff must prove that the defendant knew orshould have known of the circumstances that wouldforeseeably result in the harm suffered. SeeJohnson v. Healey, 176 Conn. 97, 103, 405 A.2d 54(1978), aff'd on other grounds, 183 Conn. 514,440 A.2d 765 (1981). "Where there is a duty offinding out and knowing, negligent ignorance hasthe same effect in law as actual knowledge." Lippittv. Ashley, 89 Conn. 451, 464, 94 A. 995 (1915),quoting Lowndes v. City National Bank

[186 Conn. 376]

     of South Norwalk, 82 Conn. 8, 16, 72 A. 150(1909); see, e.g., Prosser, supra, 157; Wright& Fitzgerald, supra, 41.

In finding all the issues for the plaintiffs thetrial court ruled that the defendant owed a dutyof care to the plaintiffs.4 Although the courtdid not express the factual basis for this ruling,the testimony and documentary evidence introducedat trial disclosed that the defendant should haveknown that the septic system it designed andplanned to have installed was likely to fail inthe manner that occurred in the present case.

For the purpose of designing an effective septicsystem, the type of soil in the leaching area isdetermined by a percolation test which ascertainsthe rate of water seepage into a percolation testhole and by an examination of the color andtexture of the soil. The building inspector forthe town of Wilton testified that, at thedefendant's request, one, or possibly twopercolation tests were performed on the propertyon April 3, 1972 by an employee of his office.Informal town records of the test do not divulgewhere the hole was dug. The town record indicatesthat a seven foot deep hole disclosed no groundwater, but does not indicate the percolation rate.The building inspector examined the system priorto June 27, 1972, the date on which it wascovered, and observed 720 square feet of effectiveleaching area, which exceeded the 625 square feetrequired by the town for its approval of the septicsystem. This requirement was based on a type "A"

[186 Conn. 377]

     soil which has the fastest percolation rate. Ifthe soil had had a slower percolation rate, theleaching area would have been too small toaccommodate the effluent. The application forpermission to construct or repair a sewagedisposal system submitted to the town buildinginspector on August 25, 1972 indicated type "B"Soil. The professional engineer who inspected thesystem on December 31, 1974 observed type "D" soil"at best" in each of three percolation test holes.On that date the town sanitarian observed type "D"in two test holes and type "E" in a third hole.These inspections in 1974 also revealed unusuallyand unacceptably high ground water and ledge rocklevels in the leaching area.

The defendant claims to have had no notice ofthese subsurface soil, water and ledge rockconditions that would foreseeably result in theparticular failure of the system that occurred inthe present case. From a review of the transcript,we hold that the trial court could reasonably havefound that the defendant should have known ofthese conditions. The town sanitarian testifiedthat in late 1974 he observed vegetation above theleaching area of such a nature as to indicate ahigh ground water table, a condition which waslikely to have existed in 1972. The Wilton townplanner testified that the planning and zoningcommission for the town of Wilton conditionedapproval of the lot located at fifty-sevenPheasant Run Road upon the defendant's providing areport from an engineer stating that the soil wassuitable for residential buildings. A commissionresolution dated April 8, 1969 and another datedNovember 23, 1970 documented this testimony.

[186 Conn. 378]

     According to the town planner and the buildinginspector, no engineer's report was filed by thedefendant.5

Finally, the leaching area surrounding thegallery consisted of some silt, which has a veryslow percolation rate, and approximately 30percent builder's fill. Builder's fill is rocks,scraps of wood and cable, and other refuse of abuilding site. Because such fill would not providethe necessary bacterial action on effluentinherent in soil, it is customarily not acceptablefor a leaching field.

From the foregoing circumstances, the defendantshould have known that the proposed leaching fieldhad a percolation rate slower than type "A" soil,that the ground water table and ledge rock levelswere unusually high, and that backfill existed inlarge quantity. Reliance upon the town's testingof the soil and approval of the septic system isrelevant, but does not preclude the inference ofnegligence which may be drawn from actual or constructivenotice of these Substandard conditions. Rodriquez v.Gilbertie, 33 Conn. Sup. 582, 584, 363 A.2d 759(1976). From notice of these substandard conditions,a duty to exercise due care arose.6

[186 Conn. 379]

The defendant's third and fourth claims of errorare each based upon an assertion that theplaintiffs failed to prove that the defendantbreached its alleged duty of care by not meetingthe appropriate standard of care. The defendant'sthird claim of error is that the plaintiffs failedto prove that the defendant violated the statehealth code because the trial court erroneouslyadmitted into evidence, over the defendant'sobjections, a pamphlet purporting to include thecode as effective in 1972. This code, asreproduced in the pamphlet published by the statedepartment of health, provided the foundation formuch, but not all, of the expert testimony relevantto the standard of care owed to the plaintiffsand the breach thereof.

General Statutes 52-166 provides that "[a]nyorder or regulation made by any state official inthe performance of his duties may be proved in anycourt by a copy of such order or regulationcertified by the person having the legal custodyof the same." See generally Roden v. ConnecticutCo., 113 Conn. 408, 416, 155 A. 721 (1931). Ifthis certification procedure is not utilized, thenthe party seeking admission of state regulationsinto evidence must authenticate them properly.Webb v. Czyr Construction Co., Inc., 172 Conn. 88,91, 374 A.2d 125 (1976). If neither of these proceduresis complied with, the admitting court committed patenterror, the harmfulness of which depends upon thefactfinder's use of the evidence. See id., 91, 93.

[186 Conn. 380]

In Webb v. Czyr Construction Co., Inc., supra,this court considered the admissibility of anuncertified pamphlet containing sections of thestate regulations pertaining to the proper designand installation of septic systems. In seeking theadmission of a similar pamphlet upon the testimonyof a professional engineer who was not employed bythe state department of health, the plaintiffs inthe present case did no more to authenticate theregulations than did the plaintiffs in Webb whosought to introduce a pamphlet upon the testimonyof a town sanitarian. Webb v. Czyr ConstructionCo., Inc., supra, 91. Therefore, the trial courterred in admitting the pamphlet.

Unlike the circumstances in Webb, however, wherethe trial court had instructed a jury that violationsof the code would constitute negligence per se, thetrial court's use of the purported code in the presentcase was not harmful. In this nonjury trial, the courtdid not base its holding upon negligence per se,7but upon common law negligence. Nothing in the memorandumof decision suggests that the court used the purported codeto establish the standard of care owed by the defendantto the plaintiffs. Accordingly, the erroneous admission

[186 Conn. 381]

     into evidence of an uncertified and unauthenticated copyof purported state regulations was not reversible error.See, e.g., Anonymous v. Norton, 168 Conn. 421,429-30, 362 A.2d 532, cert. denied, 423 U.S. 935, 96S.Ct. 294, 46 L.Ed.2d 268 (1975).

The defendant's fourth claim of error is thatthe plaintiffs introduced no testimony regardingthe common law standard of care which a skilledbuilder would have exercised under the circumstancesand, hence, the plaintiff did not provethat the defendant failed to meet that standard ofcare. A builder is under "a duty to exercise thatdegree of care which a skilled builder of ordinaryprudence would have exercised under the same orsimilar conditions." Coburn v. Lenox Homes, Inc.,supra, 574; Scribner v. O'Brien, Inc., 169 Conn. 389,400, 363 A.2d 160 (1975); see Monroe v.Hartford Street Ry. Co., 16 Conn. 201, 206,56 A. 498 (1903). Evidence of custom in the trade may beadmitted on the issue of the standard of care, butis not conclusive. Southern New England TelephoneCo. v. D'Addario Construction Co., 33 Conn. Sup. 596,598, 363 A.2d 766 (1976); Rodriquez v.Gilbertie, supra, 584; Wright & Fitzgerald, supra, 35.

In determining whether the defendant met theappropriate standard of care, the trial courtfound it significant that the septic system failedafter an uncommonly brief period of use. Theprofessional engineer who designed the replacementsystem, and the sanitarian for the town of Wiltonboth testified that the normal life expectancy ofa system was fifteen to twenty years at the timeof trial as well as in 1972. The town sanitarianalso testified that a published study on thelongevity of septic systems in Connecticutconcluded that within five years of installation

[186 Conn. 382]

     half of all systems would fail. Both experts,however, testified that it was not normal fora system to fail after only two to three yearsof use.

In addition to this testimony, evidence that thedefendant constructed the septic system after onlyone or two soil percolation tests were conductedsupports the trial court's implicit conclusionthat the defendant failed to exercise the carethat a skilled builder of ordinary prudence wouldhave exercised under the circumstances, whichincluded notice of limiting subsurface soil,ground water and ledge rock conditions.

There was testimony at trial that a skilledbuilder exercising due care should design a systemto accommodate the highest seasonal ground watertable as determined by percolation tests conductedover a period of time. A backhoe must be utilizedto determine the level of ledge rock in variouslocations under the proposed leaching field. Theuse of builder's fill in the leaching field istotally unacceptable because it is contrary tothe fundamental principles of septic systemoperation.

The foregoing circumstances, which do notinclude the multiple code violations testified toat trial, amply support the trial court'sconclusion that the defendant breached its duty ofcare.

IV

The defendant's fifth claim of error is that theplaintiffs failed to prove that the allegednegligence of the defendant was the sole proximatecause of their injury. The defendant particularlyclaims that the plaintiffs' contributory negligence

[186 Conn. 383]

     in operating a garbage disposal and water softenerwas the sole proximate cause of the system's failure.8

More than one proximate cause may result in anyharm suffered. E.g., Albert v. Lee Circle, Inc.,162 Conn. 124, 128, 291 A.2d 735 (1971); Magarianv. Bessoni, 160 Conn. 442, 445, 280 A.2d 357(1971). An actual cause that is a substantialfactor in the resulting harm is a proximate causeof that harm. E.g., Ferndale Dairy, Inc. v.Geiger, 167 Conn. 533, 538, 356 A.2d 91 (1975);Magarian v. Bessoni, supra, 445; Mahoney v.Beatman, 110 Conn. 184, 195, 147 A. 762 (1929).Proximate cause results from a sequence of eventsunbroken by a superseding cause, so that itscausal viability continued until the moment ofinjury or at least until the advent of theimmediate injurious force. See Ferndale Dairy,Inc. v. Geiger, supra, 538; Neal v. Shiels, Inc.,166 Conn. 3, 18, 347 A.2d 102 (1974); ConnecticutSavings Bank of New Haven v. First National Bank &Trust of New Haven, 138 Conn. 298, 304,84 A.2d 267 (1951); Howard v. Redden, 93 Conn. 604,611-12, 107 A. 509 (1919). A superseding cause may befound from the contributory negligence of thevictim; Hoelter v. Mohawk Service, Inc., supra,502; if such negligence is greater than thecombined negligence of those against whom recoveryis sought. See General Statutes 52-572h (a). Contributorynegligence which is not a superseding cause resultsin the diminution of damages recovered. Id.9

[186 Conn. 384]

Proximate cause is ordinarily a question offact. E.g., Fern dale Dairy, Inc. v. Geiger,supra, 538; Merhi v. Becker, 164 Conn. 516, 521,325 A.2d 270 (1973); Monroe v. Hartford Street Ry.Co., supra, 208. The test for finding proximatecause "is whether the harm which occurred was ofthe same general nature as the foreseeable riskcreated by the defendant's negligence." Merhi v.Becker, supra, 521; see Palsgraf v. Long Island R.Co., 248 N.Y. 339, 350, 354, 162 N.E. 99 (1928)(Andrews, J., dissenting). The foreseeable riskmay include the acts of the plaintiff and of thirdparties. Merhi v. Becker, supra, 522.

The risk created by the defendant's breach ofits duty of care was that the septic system wouldprematurely fail due to the inadequacy of theleaching fields to accommodate a normal productionof effluent. Effluent surfaced from the systembecause the leaching field was not able to absorbit. A letter dated April 1, 1975 from a sanitaryengineer in the environmental health servicesdivision of the state department of health to thedirector of health of the town of Wilton stated:"It appears the existing system failed due toproblems of high seasonal ground water and asystem installed in soil displaying poor seepagecharacteristics with shallow depths to bedrock."That this system failed prematurely wasestablished previously with respect to ourdiscussion of the defendant's breach of its dutyof care.

The defendant claims that the sole proximatecause of the septic system's premature failure was

[186 Conn. 385]

     the plaintiffs' and the Buengers' use of a watersoftener and a garbage disposal. When the plaintiffspurchased the residential property, the house wasequipped with a water softener and a garbage disposalunit. No evidence was introduced from which thecourt could determine who installed these devices.

Expert testimony established that use of a watersoftener, other than a passive filter type,increases the flow of water into a septic systemby approximately twenty gallons per day and thatthe softening chemicals discharged with the waterpossibly may inhibit the soil's bacterial action,and hence the effective operation of the septicsystem. Use of a garbage disposal may decrease thelife of a septic System that is not designed toaccommodate one because of the unusually highlevel of solids in the waste water.

The basis for the trial court's finding for theplaintiffs on the issue of contributory negligencewas not articulated in the memorandum of decision.Even if the court had ruled that the plaintiffshad sufficient notice that use of these deviceswould shorten the life of the septic system togive rise to a duty of care, the court could notreasonably have found that the acts of theplaintiffs and of the Buengers were a proximatecause of the failure on the basis of the factspresented.

An operational study conducted by the professionalengineer who designed the replacement systemdetermined that the plaintiffs' familyintroduced approximately 510 gallons of sewage perday into the septic tank, excluding use of thedisposal which the plaintiffs removed upon takingpossession of the house. Assuming that the water softeneraccounted for twenty of the 510 gallons per day, its use

[186 Conn. 386]

     contributed only approximately 4 percent of thetotal sewage. The trial court had no evidence fromwhich to determine the extent of the Buengers' useof either device.

Given the uncertainty of the scant testimonyregarding the causal connection between use of awater softener and a garbage disposal and thefailure of a septic system after only a relativelyshort period of use, the trial court reasonablyfound that the defendant's negligence was the soleproximate cause of the harm suffered by theplaintiffs.

"On appeal, it is the function of this court todetermine whether the decision of the trial courtis clearly erroneous. See Practice Book, 1978,3060D. This involves a two-part function: wherethe legal conclusions of the court are challenged,we must determine whether they are legally andlogically correct and whether they find support inthe facts set out in the memorandum of decision;where the factual basis of the court's decision ischallenged we must determine whether the facts setout in the memorandum of decision are supported bythe evidence or whether, in light of the evidenceand the pleadings in the whole record, [thefinding of] those facts [is] clearly erroneous.That is the standard and scope of this court'sjudicial review of decisions of the trial court.Beyond that, we will not go." (Footnote omitted.)Pandolphe's Auto Parts, Inc. v. Manchester,181 Conn. 217, 221-22, 435 A.2d 24 (1980).

There is no error.

In this opinion the other judges concurred.

1. A "`subsurface sewage disposal system' means aseptic tank followed by leaching pits, trenches,beds or galleries." General Statutes 20-341a (c).

2. Effluent is the liquid remaining after theseptic tank has operated to settle out household waste solids.

3. Ledge rock is customarily defined assubstance which a backhoe cannot penetrate.

4. We note that the defendant did not seek afurther articulation of the basis for the trial

5. Although the precise dimensions of the lotchanged before it was sold, the town plannertestified that the lot was located withinapproximately the same area as the original lot.Our comparison of the original subdivision map andthe map prepared by the engineer who designed thereplacement system discloses that most, if notall, of the septic system was located within theboundaries of the original lot. We also note that more than 19 percent of theproperty consists of a pond.

6. A duty to use care in designing a septic systemunder these circumstances is emphasized by experttestimony that until the failure of a septicsystem becomes manifest by poor drainage from thehouse, or the odor and substance of effluent rising to the landsurface, the failure is not discoverable absent asubsurface inspection of the system. Even athorough surface inspection of the system will notreveal the system's failure to functioneffectively until the failure becomes symptomatic.

7. "Negligence per se operates to engraft aparticular legislative standard onto the generalstandard of care imposed by traditional tort lawprinciples, i.e., that standard of care to whichan ordinarily prudent person would conform hisconduct. To establish negligence, the jury in anegligence per se case need not decide whether thedefendant acted as an ordinarily prudent personwould have acted under the circumstances. Theymerely decide whether the relevant statute orregulation has been violated. If it has, thedefendant was negligent as a matter of law. SeeProsser, Law of Torts 36." Wendland v. RidgefieldConstruction Services, Inc., 184 Conn. 173, 178,439 A.2d 954 (1981); see Panaroni v. Johnson,158 Conn. 92, 101, 256 A.2d 246 (1969); Monroe v.Hartford Street Ry. Co., 76 Conn. 201, 207, 56 A. 498 (1903).

8. The defendant also claims that theintervening owners act of accepting the septicsystem, as installed by an independent contractor,was the proximate cause of the injury. E.g.,Howard v. Redden, 93 Conn. 604, 612, 107 A. 509(1919). Because this defense was not pleaded itarises for the first time on appeal, and wedecline to address it. Practice Book 3063.

9. General Statutes 52-572h (a) provides: "Incauses of action based on negligence, contributorynegligence shin not bar recovery in an action byany person or his legal representative to recoverdamages resulting from injury to persons or damageto property, if such negligence was not greaterthan the combined negligence of the person or personsagainst whom recovery is sought, but any damages allowedshall be diminished in the proportion of the percentageof negligence attributable to the person recovering."Page 387

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