Does the failure of a real estate attorney to verify the source of a water sample during a

residential property transaction constitute negligence?

Research Description

.WHEN BUYING a residential property, real estate attorney did not read the source of the water
sample. Test results showed potable water but the sample was taken from a reverse osmosis tap.

Executive Summary

A party has a duty to inspect if it is foreseeable that harm could result from a failure to inspect
properly. The lack of knowledge regarding the specifics of an inspection does not affect the
foreseeability of the harm. To establish causation, it must be demonstrated that the party's
conduct was both a cause in fact and the proximate cause of the damages. The test for cause in
fact is whether the injury would have occurred were it not for the party's negligent conduct.
Proximate cause is an actual cause that is a substantial factor in the resulting harm. Liability for
negligent misrepresentation is recognized, even an innocent misrepresentation of fact may be
actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing
the truth. One who, in the course of his business, supplies false information for the guidance of
others in their business transactions, is subject to liability for pecuniary loss caused to them by
their justifiable reliance upon the information, if he fails to exercise reasonable care or
competence in obtaining or communicating the information. In a legal malpractice case, the
plaintiff must present expert testimony to establish the standard of proper professional skill or
care, and must also establish that the defendant's conduct legally caused the injury. Violation of a
Rule should not give rise to a cause of action nor should it create any presumption that a legal
duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a
structure for regulating conduct through disciplinary agencies, not to be a basis for civil liability.

Conclusion

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A party has a duty to inspect if it is foreseeable that harm could result from a failure to inspect
properly. The lack of knowledge regarding the specifics of an inspection does not affect the
foreseeability of the harm. To establish causation, it must be demonstrated that the party's
conduct was both a cause in fact and the proximate cause of the damages. The test for cause in
fact is whether the injury would have occurred were it not for the party's negligent conduct.
Proximate cause is an actual cause that is a substantial factor in the resulting harm. Liability for
negligent misrepresentation is recognized, even an innocent misrepresentation of fact may be
actionable if the declarant has the means of knowing, ought to know, or has the duty of knowing
the truth. One who, in the course of his business, supplies false information for the guidance of
others in their business transactions, is subject to liability for pecuniary loss caused to them by
their justifiable reliance upon the information, if he fails to exercise reasonable care or
competence in obtaining or communicating the information. In a legal malpractice case, the
plaintiff must present expert testimony to establish the standard of proper professional skill or
care, and must also establish that the defendant's conduct legally caused the injury. Violation of a
Rule should not give rise to a cause of action nor should it create any presumption that a legal
duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a
structure for regulating conduct through disciplinary agencies, not to be a basis for civil liability.

The existence of a legal duty is a question of law for the court that is subject to plenary review on
appeal. Liability for negligent misrepresentation is recognized, holding that even an innocent
misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to
know, or has the duty of knowing the truth. One who, in the course of his business, profession or
employment, supplies false information for the guidance of others in their business transactions,
is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the
information, if he fails to exercise reasonable care or competence in obtaining or communicating
the information. (Giametti v. Inspections, Inc., 76 Conn. App. 352, 824 A.2d 1 (Conn. App.
2003))

Whether evidence supports a claim of fraudulent or negligent misrepresentation is a question of

fact. Liability for negligent misrepresentation has been long recognized, and even an innocent
misrepresentation of fact may be actionable if the declarant has the means of knowing, ought to
know, or has the duty of knowing the truth. One who, in the course of his business, profession or
employment, supplies false information for the guidance of others in their business transactions,
is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the
information, if he fails to exercise reasonable care or competence in obtaining or communicating

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the information. (Citino v. Redevelopment Agency, 51 Conn. App. 262, 721 A.2d 1197 (Conn.
App. 1998))

The defendants had a duty to inspect the well, as it was foreseeable that harm could result from a
failure to inspect the well properly. The lack of knowledge regarding the specific nature of a well
inspection does not affect the foreseeability of the harm. To establish causation, the plaintiffs
were required to demonstrate that the defendants' conduct was a cause in fact and the proximate
cause of the plaintiffs' damages. The test for cause in fact is whether the injury would have
occurred were it not for the defendant's negligent conduct. Proximate cause is defined as an
actual cause that is a substantial factor in the resulting harm. (Heller v. D.W. Fish Realty Co.,
890 A.2d 113, 93 Conn.App. 727 (Conn. App. 2006))

For a plaintiff to prevail in a legal malpractice case in Connecticut, he must present expert
testimony to establish the standard of proper professional skill or care. Not only must the
plaintiffs establish the standard of care, but they must also establish that the defendant's conduct
"`legally caused'" the injury of which they complain. Violation of a Rule should not give rise to a
cause of action nor should it create any presumption that a legal duty has been breached. The
Rules are designed to provide guidance to lawyers and to provide a structure for regulating
conduct through disciplinary agencies. They are not designed to be a basis for civil liability.
(Dunn v. PETER L. LEEPSON, PC, 79 Conn. App. 366, 830 A.2d 325 (Conn. App. 2003))

Law

In Giametti v. Inspections, Inc., 76 Conn. App. 352, 824 A.2d 1 (Conn. App. 2003), before the
Connecticut Court of Appeals, it was stated that the existence of a legal duty is a question of law
for the court that is subject to plenary review on appeal. The Supreme Court has long recognized
liability for negligent misrepresentation, holding that even an innocent misrepresentation of fact
may be actionable if the declarant has the means of knowing, ought to know, or has the duty of
knowing the truth. One who, in the course of his business, profession or employment, supplies
false information for the guidance of others in their business transactions, is subject to liability
for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to
exercise reasonable care or competence in obtaining or communicating the information. A
vendor of residential property is liable to a purchaser for a negligent misrepresentation of the
condition of the property to that purchaser if the purchaser would not otherwise have agreed to
the terms of the sale. An action for negligent misrepresentation requires a plaintiff to prove that
(1) the defendant made a misrepresentation and (2) the plaintiff reasonably relied upon that

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misrepresentation. Whether evidence supports a claim of negligent misrepresentation is a
question of fact:

[76 Conn. App. 363]

Our Supreme Court "has long recognized liability for negligent misrepresentation. We
have held that even an innocent misrepresentation of fact may be actionable if the
declarant has the means of knowing, ought to know, or has the duty of knowing the
truth. . . . The governing principles are set forth in similar terms in § 552 of the
Restatement Second of Torts (1977): One who, in the course of his business,
profession or employment . . . supplies false information for the guidance of others in
their business transactions, is subject to liability for pecuniary loss caused to them by
their justifiable reliance upon the information, if he fails to exercise reasonable care or
competence in obtaining or communicating the information." (Citations omitted;
emphasis added; internal quotation marks omitted.) D'Ulisse-Cupo v. Board of
Directors of Notre Dame High School, 202 Conn. 206, 217-18, 520 A.2d 217 (1987);
Parker v. Shaker Real Estate, Inc., 47 Conn. App. 489, 494-95, 705 A.2d 210 (1998).
A vendor of residential property is liable to a purchaser for a negligent
misrepresentation of the condition of the property to that purchaser if the purchaser
would not otherwise have agreed to the terms of the sale. See Richard v. A. Waldman
& Sons, Inc., 155 Conn. 343, 347, 232 A.2d 307 (1967); Warman v. Delaney, 148
Conn. 469, 473-74, 172 A.2d 188 (1961); Foley v. Huntington Co., 42 Conn. App.
712, 721-22, 682 A.2d 1026, cert. denied, 239 Conn. 931, 683 A.2d 397 (1996).

[76 Conn. App. 364]

In Citino v. Redevelopment Agency, 51 Conn. App. 262, 721 A.2d 1197 (Conn. App. 1998),
before the Connecticut Court of Appeals, it was stated that whether evidence supports a claim of
fraudulent or negligent misrepresentation is a question of fact. Liability for negligent
misrepresentation has been long recognized, and even an innocent misrepresentation of fact may
be actionable if the declarant has the means of knowing, ought to know, or has the duty of
knowing the truth. The governing principles are set forth in § 552 of the Restatement Second of
Torts: one who, in the course of his business, profession or employment, supplies false
information for the guidance of others in their business transactions, is subject to liability for
pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to
exercise reasonable care or competence in obtaining or communicating the information:

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Negligent Misrepresentation

"Whether evidence supports a claim of fraudulent or negligent misrepresentation is a

question of fact. J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 358, 464
A.2d 795 (1983); Miller v. Appleby, 183 Conn. 51, 55, 438 A.2d 811 (1981)."
McClintock v. Rivard, supra, 219 Conn. 427. "[Our Supreme Court] has long
recognized liability for negligent misrepresentation. [It has] held that even an innocent
misrepresentation of fact `may be actionable if the declarant has the means of
knowing, ought to know, or has the duty of knowing the truth.' Richard v. A.
Waldman & Sons, Inc., 155 Conn. 343, 346, 232 A.2d 307 (1967)...." (Citations
omitted.) D'Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn.
206, 217, 520 A.2d 217 (1987).

"The governing principles are set forth in ... § 552 of the Restatement Second of Torts
(1977): One who, in the course of his business, profession or employment... supplies
false information for the guidance of others in their business transactions, is subject to
liability for pecuniary loss caused to them by their justifiable reliance upon the
information, if he fails to exercise reasonable care or competence in obtaining or
communicating the information." (Internal quotation marks omitted.) Burnham v. Karl
& Gelb, P.C., 50 Conn. App. 385, 390, 717 A.2d 811 (1998); see also Beverly Hills
Concepts, Inc. v. Schatz & Schatz, Ribicoff & Kotkin, 247 Conn. 48, 57, 717 A.2d
724 (1998); Parker v. Shaker Real Estate, Inc., 47 Conn. App. 489, 494-95, 705 A.2d

[51 Conn. App. 274]

In the present case, the trial court found that "the plaintiff was never given assurance
that he would be allowed to develop the Park Street property. Although he and others
may have been told, informally, that there was money available for the redevelopment
project, no specific commitment had been given to him .... Although any statement
that there was the funding for the project may be generally accurate, in a general sense
of that phrase, such statement would be far too general and superficial to be a basis for
absolute reliance upon which to base a significant financial undertaking." (Emphasis
in original.)

The trial court also found that the plaintiff had been advised initially that in order to
exclude his Park Street property from the "property to be acquired" under the
redevelopment plan, plans for that property would have to be approved and that

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 "`evidence of financial resources sufficient to complete the proposed construction' was
required." The trial court found that the plaintiff nevertheless "embarked upon the
renovations of Squire Street on the mistaken belief that if it was completed he would
be allowed to construct Park Street. He also thought that he had a commitment for
funding for Park Street. Neither of these beliefs was accurate, although honestly held
by the plaintiff."

The plaintiff argues that the trial court stated the law incorrectly when it implied that
for misrepresentation to exist, the defendant would have to have given the plaintiff
"assurance" that he would be able to develop the Park Street property. The plaintiff
argues that any statements that the defendant made to the plaintiff

[51 Conn. App. 275]

In Heller v. D.W. Fish Realty Co., 890 A.2d 113, 93 Conn.App. 727 (Conn. App. 2006), before
the Connecticut Court of Appeals, it was stated that the defendants had a duty to inspect the well,
as it was foreseeable to Marozzi that harm could result from a failure to inspect the well
properly. The lack of knowledge regarding the specific nature of a well inspection does not affect
the foreseeability of the harm. Public policy supports the imposition of a duty on the defendants,
as the parties expected that Marozzi would arrange a well inspection and it is desirable to
promote home ownership. The imposition of a duty to inspect the well will not increase
litigation. To establish causation, the plaintiffs were required to demonstrate that the defendants'
conduct was a cause in fact and the proximate cause of the plaintiffs' damages. The test for cause
in fact is whether the injury would have occurred were it not for the defendant's negligent
conduct. Proximate cause is defined as an actual cause that is a substantial factor in the resulting
harm. The substantial factor test reflects the inquiry fundamental to all proximate cause
questions; that is, whether the harm which occurred was of the same general nature as the
foreseeable risk created by the defendant's negligence:

We reject the defendants' argument that they had no duty to inspect the well. Not only
was Marozzi aware of the presence of the well, she told the plaintiffs that she would
ask the listing agent about it and arrange an inspection of it pursuant to the contract of
sale. Marozzi later told the plaintiffs that the well functioned properly, even though the
inspector she had hired was not qualified to inspect wells. In the absence of a written
buyer agency contract, the jury reasonably could have determined that Marozzi orally
had promised to order a proper well inspection. Those circumstances lead us to
determine that it was foreseeable to Marozzi that harm could result from a failure to

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 inspect the well properly. The defendants argue that Marozzi did not know that a well
inspection is different from the water test that was performed, but her lack of
knowledge regarding the specific nature of a well inspection does not affect the
foreseeability of the harm.

The factors relating to public policy also support the imposition of a duty on the
defendants. In particular, the parties expected that Marozzi would arrange a well
inspection because she promised the plaintiffs that she would do so. Furthermore,
because it is desirable to promote home ownership, public policy favors requiring real
estate agents to fulfill the promises they make to buyers. We do not believe that
imposing a duty on the defendants to inspect the well in the present case will increase
litigation because the facts clearly indicate that Marozzi told the plaintiffs that she
would take the responsibility of arranging a well inspection. In view of the distinctive
facts of the present case, we find it unnecessary to consider the decisions of other
jurisdictions. In sum, our determination of foreseeability and public policy analysis
lead us to reject the defendants' argument that they had no duty to inspect the well.

We next address whether the defendants' failure to inspect the well caused the
plaintiffs' damages. To establish causation, the plaintiffs were required to demonstrate
that the defendants' conduct was a cause in fact and the proximate cause of the
plaintiffs' damages. "The test for cause in fact is [w]ould the injury have occurred were
it not for [the defendant's] negligent ... conduct ... ? Proximate cause is defined as [a]n
actual cause that is a substantial factor in the resulting harm .... The substantial factor
test, in truth, reflects the inquiry fundamental to all proximate cause questions; that is,
whether the harm which occurred was of the same general nature as the foreseeable
risk created by the defendant's negligence." (Internal quotation marks omitted.) Boone
v. William W. Backus Hospital, 272 Conn. 551, 571, 864 A.2d 1 (2005).

In Dunn v. PETER L. LEEPSON, PC, 79 Conn. App. 366, 830 A.2d 325 (Conn. App. 2003),
before the Connecticut Court of Appeals, it was stated that "for a plaintiff to prevail in a legal
malpractice case in Connecticut, he must present expert testimony to establish the standard of
proper professional skill or care." Not only must the plaintiffs establish the standard of care, but
they must also establish that the defendant's conduct "`legally caused'" the injury of which they
complain. Our courts do recognize that in certain cases, the legal malpractice is so clear that
expert testimony is not required. However, the court found that this was not such a case because
the real estate transaction at issue was "massive." The plaintiffs argue that the court's finding in

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their favor on their claim of breach of fiduciary duty constituted sufficient proof of the
defendant's legal malpractice. None of those cases, however, holds that an attorney's breach of an
ethical duty creates a separate cause of action for malpractice. "The Rules of Professional
Conduct caution those who seek to rely on their provisions. They provide a framework for the
ethical practice of law.... Violation of a Rule should not give rise to a cause of action nor should
it create any presumption that a legal duty has been breached. The Rules are designed to provide
guidance to lawyers and to provide a structure for regulating conduct through disciplinary
agencies. They are not designed to be a basis for civil liability. . . . Accordingly, nothing in the
Rules should be deemed to augment any substantive legal duty of lawyers or the extra-
disciplinary consequences of violating such a duty." We conclude, therefore, that the court did
not improperly find for the defendant on the legal malpractice and negligence claims:

"As a general rule, for a plaintiff to prevail in a legal malpractice case in Connecticut,
he must present expert testimony to establish the standard of proper professional skill
or care." (Internal quotation marks omitted.) Vona v. Lerner, 72 Conn. App. 179, 188,
804 A.2d 1018 (2002), cert. denied, 262 Conn. 938, 815 A.2d 138 (2003). Not only
must the plaintiffs establish the standard of care, but they must also establish that the
defendant's conduct "`legally caused'" the injury of which they complain. Id., 189. The
plaintiffs offered no expert evidence with respect to either element. Our courts do
recognize that in certain cases, the legal malpractice is so clear that expert testimony is
not required. See Paul v. Gordon, 58 Conn. App. 724, 727, 754 A.2d 851 (2000).
Here, however, the court found that this was not such a case because the real estate
transaction at issue was "massive."

The plaintiffs argue that the court's finding in their favor on their claim of breach of
fiduciary duty constituted sufficient proof of the defendant's legal malpractice. In
support of their claim, the plaintiffs cite numerous cases regarding an attorney's
obligation of

[79 Conn. App. 370]

We conclude, therefore, that the court did not improperly find for the defendant on the
legal malpractice and negligence claims.

III

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 The plaintiffs next claim that the court improperly assessed and awarded $4000 to the
defendant as the fair value of the defendant's legal services. We disagree.

Authorities

Giametti v. Inspections, Inc., 76 Conn. App. 352, 824 A.2d 1 (Conn. App. 2003)
Citino v. Redevelopment Agency, 51 Conn. App. 262, 721 A.2d 1197 (Conn. App. 1998)
Heller v. D.W. Fish Realty Co., 890 A.2d 113, 93 Conn.App. 727 (Conn. App. 2006)
Dunn v. PETER L. LEEPSON, PC, 79 Conn. App. 366, 830 A.2d 325 (Conn. App. 2003)

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