CARMEN LOPEZ v. WILLIAM RAVEIS REAL ESTATE, INC., ET AL.
(SC 20574)
Supreme Court of Connecticut
Argued October 14, 2021—officially released April 19, 2022
Robinson, C. J., and D‘Auria, Mullins, Ecker and Keller, Js.
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Syllabus
Pursuant to statute (
Pursuant further to statute (
The plaintiff sought to recover damages for alleged housing discrimination in connection with certain statements that the defendant H, a real estate salesperson, made regarding the plaintiff‘s participation in the Section 8 Housing Choice Voucher Program. H served as an independent contractor for the named defendant, R Co., a real estate broker. R Co., through H, entered into a listing contract with the defendant V for the exclusive right to lease an apartment owned by V and his wife. Thereafter, the plaintiff, through her real estate agent, B, submitted an application and offer to lease the apartment. After receiving the documents and speaking with V, who wanted the apartment rented by April 1, 2017, H notified B that they were “all set” for a lease commencing on that date. B then sent H blank section 8 paperwork to accompany the plaintiff‘s application. H and B then proceeded to exchange e-mails and text messages, in which H repeatedly indicated that she was not aware that the plaintiff would be using a section 8 voucher, that she would have to speak to V, that the decision was up to V, and that she was not sure if V would want to wait for the section 8 approval process. H eventually texted B that V had received a competing offer for the apartment, and, several hours later, H texted B that V had accepted the competing offer. The plaintiff alleged that H violated
- The trial court incorrectly concluded that H‘s statements did not indicate any preference, limitation, or discrimination based on lawful source of income, in violation of
§ 46a-64c (a) (3) :- Contrary to the plaintiff‘s claim, the trial court properly applied the ordinary listener standard in determining whether H‘s statements conveyed an impermissibly discriminatory preference: this court considered the statute‘s legislative history, as well as cases interpreting federal fair housing laws and the federal counterpart to
§ 46a-64c (a) (3) , in particular, and concluded that, when a notice, statement, or advertisement that allegedly violates§ 46a-64c (a) (3) is plainly discriminatory on its face, courts need not examine the surrounding context or the speaker‘s intent to determine whether the statement indicates any impermissible preference, limitation, or discrimination to the ordinary listener, but, when such a notice, statement, or advertisement is not discriminatory on its face, courts may consider context and the intent of the speaker to aid in determining the way an ordinary listener would have interpreted it; in the present case, the trial court apparently concluded that H‘s statements were not facially discriminatory, and, because this court agreed with that determination, it was not improper for the trial court to consider the context of H‘s statements in determining whether they indicated any preference, limitation, or discrimination based on lawful source of income. - The trial court‘s conclusion that H‘s statements would not have conveyed to an ordinary listener an impermissible preference with respect to lawful source of income was clearly erroneous: there was overwhelming evidence in the trial court‘s factual findings that supported the plaintiff‘s housing discrimination claim, as, after indicating that the plaintiff was “all set,” H stated four separate times that she was not aware that the plaintiff intended to use a section 8 voucher to pay rent and that she was not sure whether V would want to wait, H had already made two of those statements before receiving the competing offer, meaning that she could not reasonably rely on the competing offer to explain her earlier statements, and, in context, H‘s statements could not reasonably be understood to mean anything other than that the plaintiff‘s intention to use her section 8 voucher to pay rent would be an obstacle to her lease application; moreover, the trial court‘s conclusion in favor of H undercut the broad protections afforded by
§ 46a-64c (a) (3) , which is intended to protect against the psychic injury caused by discriminatory statements, especially in light of this state‘s public policy that landlords may not discriminate against housing applicants who use section 8 assistance and the legislature‘s manifest intent to afford low income families access to the rental housing market; in the present case, the plaintiff indicated that she was able to satisfy V‘s interest in an April 1, 2017 tenancy, any preference to avoid the administrative process the section 8 program involved was an impermissible consideration under both subdivisions (1) and (3) of§ 46a-64c (a) , and this court was left with the definite and firm conviction that the trial court‘s conclusion that H‘s statements did not express a preference with respect to, or discriminate on the basis of, the plaintiff‘s lawful source of income was not simply an alternative yet permissible view of the evidence.
- Contrary to the plaintiff‘s claim, the trial court properly applied the ordinary listener standard in determining whether H‘s statements conveyed an impermissibly discriminatory preference: this court considered the statute‘s legislative history, as well as cases interpreting federal fair housing laws and the federal counterpart to
- Although the trial court did not address the issue of vicarious liability, this court determined, as a matter of law, that R Co. was vicariously liable for H‘s statements but that V and his wife were not, and, accordingly, this court reversed the judgment of the trial court and remanded the case with direction to render judgment for the plaintiff as to liability against H and R Co. under
§ 46a-64c (a) (3) and for further proceedings to determine, inter alia, the damages to which the plaintiff was entitled: the parties stipulated, and the trial court found, that R Co. is a real estate broker and that H is R Co.‘s independent contractor, and, because H acted on behalf of R Co. when she executed the listing contract with V and her statements were made in furtherance of that contract, R Co. was liable to the same extent as if H were its employee pursuant to the statute (§ 20-312a ) governing the vicarious liability of real estate brokers; moreover, although V and his wife had an independent contractor relationship with H, there was no evidence that the listing contract gave V any control over H, and, in the absence of any exception to the general rule that employers are not liable for the torts of their independent contractors, V and his wife were not vicariously liable for any of H‘s statements.
Procedural History
Action to recover damages for alleged housing discrimination, and for other relief, brought to the Superior Court in the judicial district of Danbury, where the case was tried to the court, Kowalski, J.; judgment for the defendants, from which the plaintiff appealed. Reversed in part; further proceedings.
Tracey Lane Russo, for the appellees (named defendant et al.).
Joseph P. Sargent, for the appellees (defendant Anthony Vaccaro et al.).
Opinion
ROBINSON, C. J. In this appeal, we consider the standard for determining whether a statement made in connection with the sale or rental of a dwelling violates General Statutes
The record reveals the following relevant facts, as found by the trial court, and procedural history. At all relevant times, the Vaccaros owned a two family home located at 5 Prince Street in Danbury. On January 28, 2017, Vaccaro entered into an exclusive right to lease listing contract with Raveis, through its authorized representative, Henry, to lease a rental apartment located in the two family home (rental apartment). Henry is a real estate salesperson who is affiliated with Raveis, a real estate broker, pursuant to an independent contractor agreement. Vaccaro informed Henry that he wanted to ensure a new tenancy was in place for the rental apartment by April 1, 2017. Henry listed the rental apartment on the multiple listing service database, and, on March 9, the plaintiff, through her real estate agent, Sarah Becker, submitted to Henry an application and offer to lease the rental apartment. Henry received the documents on March 11, and, despite the plaintiff‘s having left blank portions of the offer to
Later on March 13, Becker sent Henry blank paperwork for the Section 8 Housing Choice Voucher Program (section 8) to accompany the plaintiff‘s application to lease the rental apartment. After Henry received the section 8 documents on March 15, the following conversation occurred:
At 8:29 a.m., Henry e-mailed Becker: ”I wasn‘t aware that this was a [s]ection 8 tenant. I have to speak with [Vaccaro] today. [He] is looking for a security deposit for this rental . . . . I will give you a call later today.”
At 9:46 a.m., Becker e-mailed Henry: “To whom should [the] check be made out . . . . I can be there for [the] housing inspection if you like, but [I] will need access to [the] basement. It is oddly one of the best parts of [my] working with housing—free inspections. I had a state paid tenant in one of my buildings for [more than eight] years (not [section] 8 but similar), the direct deposit payments and yearly inspections were great really—that agency monitored the condition of the apartment, and they kept a paper trail and photos. No disagreements over who did what to a place, plus I knew I‘d get paid [which made it] easier to sleep at night. Plus to get a voucher the state has already checked out the tenant financially and their background, so that is a huge benefit to a landlord as well. Win-win. [Vaccaro] hasn‘t had anyone with voucher assistance before? You can let him know that most of the rent will come from the tenant, and a part from the state via direct deposit, and other than that it is pretty normal. Let me know how I can help. . . . Will need to get paperwork in ASAP so [we] can have [the] place inspected fast to meet [the] April 1 start date. Usually a place may fail the first time on a stuck/broken window or no [ground fault circuit interrupter (GFCI)] outlets, basic safety issues that should be in place for any tenant, and then passes on [the] second trip. If [the] windows function OK and [there are GFCI] outlets by [the] sinks, [it] should be in good shape, place looks nice.”
At 10:41 a.m., Henry texted Becker: “Good morning I was not aware of the [s]ection 8 when I spoke with you I‘m not sure [Vaccaro] would want to wait. I know it takes a couple of weeks for the process and he wants to [rent] it by April 1st I will speak with him today and let you know thanks.” (Emphasis added.)
At 12:31 p.m., Henry texted Becker: “I will speak with [Vaccaro] later today to make a decision about the rental.”
At 1:50 p.m., Henry texted Becker: “[Vaccaro] has another offer he‘s also looking at we do not have an offer without a signed lease. You were not upfront with me with [s]ection 8 and I didn‘t [present it] to [Vaccaro] that way as well. It‘s up to [Vaccaro] what he would like to do with the offers as well as the waiting. I will get back to you tonight thank you.” (Emphasis added.)
At 1:52 p.m., Becker texted Henry: “It is not necessary to identify [my] client as having a voucher to all places she applies to, I respect her privacy, only that income is sufficient.”
At 2:23 p.m., Henry texted Becker: “Yes, it is necessary by law. It needs to be on the offer if paying from a [third] party. [Vaccaro] will let me know tonight either way thanks.” (Emphasis added.)
At 7:09 p.m., Henry texted Becker: “Hi, [Vaccaro] has decided to go with the other offer, [s]orry.”
As reflected in the conversation, Henry received a second offer to lease on behalf of Everton Thompson and Saudia Dyer (Thompson and Dyer offer) on March 15, 2107, at 11:37 a.m. The Thompson and Dyer offer was accompanied by a completed rental application. It also proposed a lease term beginning on March 15, 2017, and ending on February 28, 2018, a lease price of $1500 per month, and a security deposit of $3000, and identified no contingencies. Vaccaro instructed Henry to accept the Thompson and Dyer offer and had a fully executed lease for the rental apartment by March 18.
The plaintiff subsequently brought this action for, inter alia, compensatory damages, punitive damages, and declaratory and injunctive relief, claiming that the defendants violated
Subsequently, the plaintiff filed a motion for reargument and reconsideration on the grounds that the trial court either failed to analyze her
On appeal, the plaintiff asks us to direct judgment in her favor, claiming that Henry‘s statements were facially discriminatory on the basis of her lawful source of income, in violation of
I
We begin with the plaintiff‘s claims with respect to whether the trial court correctly determined that Henry‘s statements did not violate
A
We first address the plaintiff‘s claim that the trial court improperly applied the ordinary listener standard articulated by the United States Court of Appeals for the Second Circuit in Soules v. United States Dept. of Housing & Urban Development, 967 F.2d 817 (2d Cir. 1992), when it considered the context surrounding Henry‘s statements in determining whether they stated a preference or discriminated on the basis of lawful source of income, in violation of
In response, Raveis and Henry argue that the plaintiff misreads Soules and that, under that case, the trial court properly considered context in determining whether Henry‘s statements violated
Whether the trial court applied the proper standard for analyzing the statements under
As required by
Section
Turning to the legislative history, we note that then state Senator Richard Blumenthal described the bill that was enacted in 1990 as the Connecticut Discriminatory Housing Practices Act as having “all the standards and assurances that exist under federal law” and “incorpo-rat[ing] the federal [Fair Housing Act,
Our analysis begins with the Second Circuit‘s decision in Ragin v. New York Times Co., 923 F.2d 995 (2d Cir.), cert. denied, 502 U.S. 821, 112 S. Ct. 91, 116 L. Ed. 2d 54 (1991), in which that court analyzed the statutory language of
“[The court] read the word ‘preference’ to describe any ad that would discourage an ordinary reader of a particular race from answering it.” Id., 999-1000. “Moreover, the statute prohibits all ads that indicate a racial preference to an ordinary reader whatever the advertiser‘s intent. To be sure, the intent of the creator of an ad may be relevant to a factual determination of the message conveyed . . . but the touchstone is nevertheless the message. If, for example, an advertiser seeking to reach a group of largely white consumers were to create advertisements that discouraged potential black consumers from responding, the statute would bar the ads, [regardless of] whether the creator of the ad had a subjective racial intent.”8 (Citation omitted; emphasis
Subsequently, the Second Circuit more clearly delineated when and why the ordinary listener considers evidence beyond the statement itself in Soules v. United States Dept. of Housing & Urban Development, supra, 967 F.2d 817. In Soules, the court considered whether a real estate agent violated the federal act by asking a prospective tenant how old her child was because “an elderly person lived in the first floor unit, and . . . she did not want an upstairs resident who would make too much noise.” Id., 820. The court stated that, “[i]n cases [in which statements] are clearly discriminatory, a court may look at [the statement] and determine whether it indicates an impermissible preference to an ordinary reader, and inquiry into the author‘s professed intent is largely unnecessary.” Id., 824. The court also stated that, because written content does not communicate the inflection of the speaker, “courts must turn to other evidence in determining whether a violation of the [federal act] occurred.” Id., 825. “[Fact finders] may examine intent . . . because it helps determine the manner in which a statement was made and the way an ordinary listener would have interpreted it.” Id. Deeming the real estate agent‘s statement not facially discriminatory, the court stated that the context and intent of the speaker could either expose an impermissible preference or simply explain why the statement was made, and upheld the administrative law judge‘s conclusion that the statements at issue were made to determine whether the prospective tenants were noisy.9 Id., 825-26; see also Jancik v. Dept. of Housing & Urban Development, 44 F.3d 553, 554-55 (7th Cir. 1995) (considering context, including two statements that indicated express preference against children and teenagers, to determine that “‘mature person preferred‘” advertisement expressed impermissible preference).
Significantly, the Second Circuit also suggested in Soules that context is particularly helpful when there may be a legitimate reason for inquiring into one‘s status as a protected class, observing that, “whereas [t]here is simply no legitimate reason for considering an applicant‘s race . . . there are situations in which it is
Finally, in Rodriguez v. Village Green Realty, Inc., supra, 788 F.3d 36-39, the Second Circuit considered whether there was sufficient evidence to raise a genuine issue of material fact as to whether a real estate agent had violated
Guided by this Second Circuit case law, we conclude that, when a notice, statement, or advertisement that allegedly violates
B
We now turn to the plaintiff‘s contention that the trial court incorrectly concluded that Henry‘s statements, even when considered in context, would not have conveyed an impermissible preference to an ordinary listener. Under Second Circuit case law, the ordinary listener inquiry is one of fact. See, e.g., Ragin v. Harry Macklowe Real Estate Co., 6 F.3d 898, 906 (2d Cir. 1993) (“[T]he inquiry directed by Ragin [v. New York Times Co., supra, 923 F.2d 995] is whether a hypothetical ordinary reader would find that a defendant‘s ads expressed an impermissible racial preference. Like the inquiry in negligence cases concerning whether a defendant‘s conduct conformed with that of the reasonable person, this question is one that the [fact finder] can answer by viewing the ads and the defendants’ conduct and then applying common sense.” (Emphasis in original.)); Soules v. United States Dept. of Housing & Urban Development, supra, 967 F.2d 825 (“[i]t is for this reason that [fact finders] may examine intent, not because a lack of design constitutes an affirmative defense to [a] . . . violation [of the federal act], but because it helps determine the manner in which a statement was made and the way an ordinary listener would have interpreted it“); Ragin v. New York Times Co., supra, 1000 (“the intent of the creator of an ad may be relevant to a factual determination of the message conveyed” (emphasis added)); Gilead Community Services, Inc. v. Cromwell, 432 F. Supp. 3d 46, 68 (D. Conn. 2019) (“whether the various statements . . . ‘convey a prohibited preference or discrimination to the ordinary listener’ . . . should be determined by the jury” (citation omitted; emphasis in original)).
“A finding of fact is clearly erroneous when there is no evidence in the
We begin with the facts that the trial court included in its addendum discussing the plaintiff‘s
The Vaccaros argued that the fact that the plaintiff‘s initial paperwork was incomplete was also relevant to place Henry‘s statements in context, as was the existence of the competing offer from Thompson and Dyer. The facts, however, undermine the strength of this argument. After the plaintiff‘s initial submission of incomplete paperwork, Henry had stated that the deal was still “all set for April 1st.” In regard to the competing offer, the trial court found that it was e-mailed to Henry at 11:37 a.m. on March 15, 2017. By that time, Henry had already made two of the four statements at issue and had stated that she was not sure Vaccaro would want to wait. The chronology of events does not reasonably permit her to rely on the competing offer to explain the statements that she made earlier that morning.
Thus, the trial court‘s ultimate finding that the ordinary listener would not have inferred that Henry‘s statements indicated any preference, limitation or discrimination was inconsistent with all but one of the subordinate facts it found. Put differently, Henry‘s statements could not reasonably be understood in context to mean
Beyond being inconsistent with the other facts it found, the trial court‘s conclusion undercuts the broad protections provided by
The protections against psychic injury provided by
Thus, given that the plaintiff indicated that she would have been able to meet Vaccaro‘s desired occupancy date of April 1, 2017, particularly with Becker‘s demonstrated desire to expedite the transaction, any preference to avoid the administrative process of the section 8 program in this transaction could not have been a determinative consideration in Vaccaro‘s rental decision under
The trial court ultimately concluded that Henry‘s statements “would not have been understood as discriminatory by
II
Because the trial court rendered judgment in favor of the defendants on the basis of its conclusion as to Henry‘s statements, it did not reach the plaintiff‘s derivative liability claims. The plaintiff argues that there is sufficient evidence in the record to conclude as a matter of law that, pursuant to General Statutes
This court need not remand the case for the trial court‘s decision on the issue of vicarious liability if it can be determined as a matter of law on the record before us. See Hudson Wire Co. v. Winsted Brass Workers Union, 150 Conn. 546, 552, 191 A.2d 557 (1963). In other words, if the evidence necessary for resolution is undisputed, then this court can decide the issue as a matter of law without need for a remand for factual findings. See, e.g., Salmon v. Dept. of Public Health & Addiction Services, 259 Conn. 288, 309-310, 788 A.2d 1199 (2002); see also Allstate Ins. Co. v. Palumbo, 296 Conn. 253, 267-68, 994 A.2d 174 (2010) (citing cases).
Again, turning to cases interpreting the federal act, we note that the United States Supreme Court has stated that the federal statute incorporates “ordinary [tort related] vicarious liability rules . . . .” Meyer v. Holley, 537 U.S. 280, 285, 123 S. Ct. 824, 154 L. Ed. 2d 753 (2003). As applied in the state law context, under this court‘s well established vicarious liability jurisprudence, an employer is liable for the negligent and wilful torts of an employee that occurred within the scope of employment and were done in furtherance of the employer‘s business. E.g., A-G Foods, Inc. v. Pepperidge Farm, Inc., 216 Conn. 200, 208, 579 A.2d 69 (1990); see Matthiessen v. Vanech, 266 Conn. 822, 840 n.16, 836 A.2d 394 (2003) (“an employer generally is liable for intentional torts committed by his employees to the same extent that he is liable for damages arising out of the negligent or reckless conduct of those employees“).
In Connecticut, the vicarious liability of a real estate broker is governed by
The trial court found that Henry acted on behalf of Raveis when she executed the exclusive right to lease listing contract with Vaccaro in relation to the rental apartment. It cannot reasonably be contended that statements made about the plaintiff‘s prospective tenancy in the Vaccaros’ rental apartment were not in furtherance of the listing contract, and there is no evidence to suggest that Henry‘s conversations with Becker in regard to the rental apartment were outside the scope of that engagement. Therefore, we conclude as a matter of law that Raveis is vicariously liable for Henry‘s statements in violation of
A principal is generally liable for the authorized acts of their agent. E.g., Rich-Taubman Associates v. Commissioner of Revenue Services, 236 Conn. 613, 619, 674 A.2d 805 (1996). Agency is “the fiduciary relationship [resulting] from [the] manifestation of consent by one person to another that the other shall act on his [or her] behalf and subject to his [or her] control, and consent by the other so to act . . . .” (Internal quota-tion marks omitted.) Fiano v. Old Saybrook Fire Co. No. 1, Inc., 332 Conn. 93, 102, 209 A.3d 629 (2019). “The test of the [agency] relationship is the right to control. It is not the fact of actual interference with the control, but the right to interfere, that makes the difference between an independent contractor and a servant or agent.” (Internal quotation marks omitted.) Tianti v. William Raveis Real Estate, Inc., 231 Conn. 690, 697, 651 A.2d 1286 (1995). Further, “[a]n independent contractor has been defined as one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work.” (Internal quotation marks omitted.) Id.
Turning to the record, we observe that the listing contract Henry executed between Raveis and Vaccaro stated that “[Raveis] will use reasonable efforts to lease the [rental apartment].” This provision does not state or imply that the Vaccaros had the right to intervene as to the means or methods by which to lease the listed property. Outside of the limited terms of the listing contract, there is no evidence to suggest that Vaccaro had the right to control anything other than the result, namely, the terms of the lease and which offer he accepted.20 Accordingly, we conclude that Vaccaro and Henry had an independent contractor relationship as a matter of law.
Generally, an employer is not liable for the torts of its independent contractors. E.g., Gazo v. Stamford, 255 Conn. 245, 257, 765 A.2d 505 (2001). “The explanation for [this rule] most commonly given is that, [because] the employer has no power of control over the manner in
The plaintiff raised an exception to this general principle in its brief to this court, at least as to Eve Vaccaro. Relying on Alexander v. Riga, 208 F.3d 419, 432-33 (3d Cir. 2000), cert. denied, 531 U.S. 1069, 121 S. Ct. 757, 148 L. Ed. 2d 660 (2001), the plaintiff argues that the duty not to discriminate is nondelegable in nature. This court has previously stated that “[t]he nondelegable duty doctrine is . . . an exception to the rule that an employer may not be held liable for the torts of its independent contractors.” Gazo v. Stamford, supra, 255 Conn. 257. The United States Supreme Court, however, has held that the duty not to discriminate under the federal act is not nondelegable in nature because a conclusion to the contrary would extend vicarious lia-bility beyond the ordinary tort principles imposed by the federal act. See Meyer v. Holley, supra, 537 U.S. 286; see also id., 290. Having concluded that Henry was an independent contractor, and, in the absence of an exception to the general rule that employers are not liable for the torts of their independent contractors, we conclude that the Vaccaros are not vicariously liable for any of Henry‘s statements that constitute a violation of
The judgment is reversed in part and the case is remanded with direction to render judgment for the plaintiff as to liability against the defendants Sarah Henry and William Raveis Real Estate, Inc., in connection with the plaintiff‘s claim under
In this opinion the other justices concurred.