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AFSCME, COUNCIL 4, LOCAL 2663 v. DEPT. OF CHILDREN & FAMILIES—
FIRST DISSENT
ROGERS, C. J., dissenting. I agree with the majority
that the arbitration award at issue in this case con-
formed to the unrestricted submission and was consis-
tent with the collective bargaining agreement of the
parties, the plaintiff, AFSCME, Council 4, Local 2663
(union), and the defendant Department of Children and
Families (department),1 and that the due process rights
of the department’s employee, Suzanne Listro, were not
violated by lack of notice regarding the basis of her
dismissal. I would conclude, nevertheless, that the arbi-
tration award should be vacated pursuant to General
Statutes § 52-418 (a) (4) due to the arbitrator’s manifest
disregard of the law. Specifically, the only medical evi-
dence in the record and the arbitrator’s own initial
factual finding, in accord with that evidence, estab-
lished that M, a foster child in Listro’s care, had died
from shaken baby syndrome. Therefore, the arbitrator’s
subsequent conclusion to the contrary, that Listro was
negligent, causing M’s death by allowing him to fall
from a bed, was a patently irrational application of basic
legal principles as contemplated by the test adopted by
this court in Garrity v. McCaskey, 223 Conn. 1, 8–9,
612 A.2d 742 (1992).2 Accordingly, I would reverse the
judgment of the Appellate Court, which reversed the
trial court’s judgment and remanded the case to that
court with direction to affirm the arbitration award;
AFSCME, Council 4, Local 2663 v. Dept. of Children &
Families, 142 Conn. App. 1, 14, 62 A.3d 1168 (2013);
thereby reinstating the trial court’s order vacating the
arbitration award and referring the matter back to arbi-
tration for a rehearing.
In its application to vacate the arbitrator’s award
denying Listro’s reinstatement, the union invoked § 52-
418 (a) (4), claiming, inter alia, that ‘‘[t]he arbitrator
[had] exceeded her power[s] or so imperfectly executed
them such that a mutual, final and definite award upon
the subject matter [submitted to her] was not made.’’
The trial court granted the union’s application to vacate
after concluding that ‘‘[t]he arbitrator exceeded her
authority in using negligence as a standard and basis
for her award,’’ and it referred the matter back to arbi-
tration for a rehearing.
‘‘In construing § 52-418 (a) (4), we have, as a general
matter, looked to a comparison of the award with the
submission to determine whether the arbitrators have
exceeded their powers. . . . We have also recognized,
however, that an arbitrator’s egregious misperformance
of duty may warrant rejection of the resulting award.
. . . [For example] [i]f the memorandum of an arbitra-
tor revealed that he had reached his decision by con-
sulting a [O]uija board, surely it should not suffice that
the award conformed to the submission. . . . Other
states have also recognized that an arbitrator’s egre-
gious misperformance of duty or patently irrational
application of legal principles warrants review and
rejection of the resulting award. . . .
‘‘[A]n award that manifests an egregious or patently
irrational application of the law is an award that should
be set aside pursuant to § 52-418 (a) (4) because the
arbitrator has exceeded [his] powers or so imperfectly
executed them that a mutual, final and definite award
upon the subject matter submitted was not made.’’
(Citation omitted; internal quotation marks omitted.)
McCann v. Dept. of Environmental Protection, 288
Conn. 203, 220, 952 A.2d 43 (2008).
In Garrity v. McCaskey, supra, 223 Conn. 10, this
court ‘‘adopted the test enunciated by the United States
Court of Appeals for the Second Circuit in interpreting
the federal equivalent of § 52-418 (a) (4). . . . The test
consists of the following three elements, all of which
must be satisfied in order for a court to vacate an
arbitration award on the ground that the arbitration
panel manifestly disregarded the law: (1) the error was
obvious and capable of being readily and instantly per-
ceived by the average person qualified to serve as an
arbitrator; (2) the arbitration panel appreciated the exis-
tence of a clearly governing legal principle but decided
to ignore it; and (3) the governing law alleged to have
been ignored by the arbitration panel is well defined,
explicit, and clearly applicable.’’3 (Internal quotation
marks omitted.) McCann v. Dept. of Environmental
Protection, supra, 288 Conn. 220–21. Pursuant to this
test, an arbitration award should be set aside only for
blatant and egregious legal error, and not ‘‘because of
an arguable difference regarding the meaning or appli-
cability of laws urged upon it.’’ (Internal quotation
marks omitted.) Garrity v. McCaskey, supra, 9; see
also id., 9–10 (vacation for manifest disregard of law
reserved for cases in which arbitrator’s determination
is ‘‘ ‘totally irrational’ ’’ or resulted from ‘‘ ‘failure to
exercise honest judgment’ ’’).
Although I recognize that the foregoing standard is
a strict one, I believe that the unusually confused arbi-
tration award in this case serves to satisfy it. The arbitra-
tor first rejected, as unproven, the department’s charge
that Listro intentionally had inflicted fatal injuries on
M. The arbitrator then explicitly based her decision to
deny reinstatement on a wholly different legal theory—
that Listro merely had been negligent by allowing M to
fall, but her negligence had disastrous consequences.
The basic elements of a negligence claim are long-stand-
ing, conclusively established and frequently identified
and applied in our jurisprudence. They are: ‘‘duty;
breach of that duty; causation; and actual injury.’’ Ruiz
v. Victory Properties, LLC, 315 Conn. 320, 328, 107
A.3d 381 (2015). As to the third element, it is beyond
fundamental that a party may not prevail on a negli-
gence theory unless he or she proves that the conduct
complained of was both a cause in fact and a proximate
cause of the injury at issue, that is, the injury would
not have occurred absent the conduct, and the conduct
was a substantial factor in producing that injury. Id.,
329. Accordingly, the legal principle of proximate causa-
tion as an essential element of negligence was well-
defined, explicit and clearly applicable to the present
case, as the arbitrator herself conceived it.
Having determined that a well-defined, explicit legal
principle clearly was applicable to the present case, I
turn to the question of whether the arbitrator purpose-
fully disregarded that principle. An arbitrator’s manifest
disregard of a clearly governing legal principle is estab-
lished if a party seeking vacatur ‘‘demonstrate[s] that
the arbitrator knew of the relevant principle, appreci-
ated that this principle controlled the outcome of the
disputed issue, and nonetheless willfully flouted the
governing law by refusing to apply it.’’ Westerbeke Corp.
v. Daihatsu Motor Co., Ltd., 304 F.3d 200, 217 (2d Cir.
2002). Although an arbitrator’s ‘‘[e]xplicit rejection of
governing law provides the strongest evidentiary basis
for a finding that the arbitrator acted with the requisite
intent’’; id.; a reviewing court also ‘‘may find intentional
disregard if the reasoning supporting the arbitrator’s
judgment strain[s] credulity . . . or does not rise to the
standard of barely colorable . . . .’’ (Citations omitted;
internal quotation marks omitted.) Id., 218. In my view,
for the reasons that follow, this aptly describes the
reasoning employed by the arbitrator in this case.
To begin, the only medical evidence in the record
decisively demonstrated that M was a homicide victim
who had died from shaken baby syndrome, and that he
had not died from an accidental fall. Specifically, an
autopsy report reflects the state medical examiner’s
conclusions that M died of blunt traumatic head injury
and that he was a victim of a homicide. The arbitrator’s
decision describes this report, as well as the medical
examiner’s testimony at the arbitration hearing that ‘‘the
physical signs found on [M’s] body were not consistent
with death from a fall but were consistent with death
from a condition familiarly known as shaken baby syn-
drome. This was particularly true because M’s retinas
had hemorrhaged, the most indicative symptom of the
syndrome.’’ Moreover, the arbitrator stated, ‘‘[t]he
[medical examiner] testified that if M had hit his head,
the autopsy should have revealed pooled blood under
the scalp,’’ which the autopsy report apparently did
not indicate.
After describing this medical evidence, the arbitrator
explicitly credited it and further acknowledged that
there was no conflicting evidence in the record that
would support a finding of a different cause of death.
In the words of the arbitrator herself, the ‘‘record con-
clusively establishes that M was a victim of shaken baby
syndrome. The [m]edical [e]xaminer’s testimony and
the autopsy report were not challenged and the [plain-
tiff] offered not a scintilla of evidence to suggest an
alternative diagnosis.’’
Thereafter, contrary to the only medical evidence in
the record as to the cause of M’s death and the arbitra-
tor’s own initial factual finding, which was consistent
with that evidence, the arbitrator proceeded to find
additionally that M had died as a result of a fall. To
reconcile her completely inconsistent factual findings
as to the critical issue in this case, the arbitrator, pre-
sumably a medical layperson, contrived a speculative
theory that had no basis in any cited evidence, medical
or otherwise. Specifically, the arbitrator speculated that
M had been shaken at some unknown time preceding
his death, by some other party, and that M’s fall from
the bed was the ‘‘proverbial ‘last straw’ ’’ that caused
his death, even though the only medical evidence that
was presented showed that he did not die from a fall.
Furthermore, the arbitrator surmised, it was Listro’s
negligence that had allowed that fall and caused M’s
death.
The arbitrator’s wholly speculative theory of the case
overtly rests not on any actual evidence in the record,
but instead, on a lack of evidence to disprove the theory.
Thus, according to the arbitrator, because there was
‘‘nothing in the record establish[ing] that . . . a fall
could not have been the proverbial ‘last straw’ for earlier
traumatic injuries,’’ it was reasonable to conclude that
M’s death subsequent to an assault ultimately was trig-
gered by the final blow of a fall. Additionally, although
the arbitrator acknowledged that there was ‘‘no evi-
dence regarding how much time could elapse between
a severe shaking and . . . a fall in order for the fall to
result in death shortly thereafter,’’ and a ‘‘dearth of
medical information regarding the timeliness for shaken
baby syndrome’s impact on a particular child,’’ the arbi-
trator concluded that in this case, there was some
unspecified period of delay separating the fatal assault
of M and his resulting death. Finally, although there
was no evidence that M had been removed from his
biological parents’ care for physical abuse or that any
question had arisen as to the conduct of his prior foster
family, who had returned M to the department’s custody
approximately one week prior to his death, the arbitra-
tor posited that one of those parties might have been
‘‘tied to M’s fatal injuries’’ by shaking him and, thus,
leaving him vulnerable to the final blow of a fall.4 Relying
on the foregoing evidentiary voids, the arbitrator then
concluded that, although the department had failed to
prove its allegations of child abuse, the record undoubt-
edly demonstrated that Listro was negligent, and that
her ‘‘moment of negligence had unusually serious con-
sequences, the death of a child.’’
Although the arbitrator identified negligence as the
governing legal theory, she failed to discuss or apply any
of the fundamental elements of negligence, in particular
proximate cause, to the actual evidence in the record.
Most troublingly, she failed to explain how that evi-
dence reasonably could support a finding that M’s death
was proximately caused by Listro’s conduct. The arbi-
trator’s appreciation and disregard of this fundamental
requirement is evident from her strained and unconvinc-
ing attempt to demonstrate that it had been satisfied,
despite the complete lack of evidence that a fall, caused
by Listro’s lapse in judgment, was a substantial factor
in M’s death, and the existence of only evidence to
the contrary, which the arbitrator herself explicitly had
credited. For the foregoing reasons, the arbitrator’s
decision was not ‘‘barely colorable’’; (internal quotation
marks omitted) Westerbeke Corp. v. Daihatsu Motor
Co., Ltd., supra, 304 F.3d 218; but is more accurately
described as ‘‘ ‘totally irrational’ ’’; Garrity v.
McCaskey, supra, 223 Conn. 9; or a ‘‘ ‘failure to exercise
honest judgment’ ’’; id., 10; and no more reasonable than
one which is the product of consultation with a Ouija
board. See McCann v. Dept. of Environmental Protec-
tion, supra, 288 Conn. 220. Consequently, vacatur was
warranted. Cf. Hardy v. Walsh Manning Securities,
L.L.C., 341 F.3d 126, 130–31, 134 (2d Cir. 2003) (vacating
decision for manifest disregard of law when arbitrator
identified respondeat superior as sole governing princi-
ple of liability, although parties had agreed that individ-
ual held liable was fellow employee, and not employer,
of wrongdoer, which barred recovery under well-
defined principles of state law, and ‘‘no one point[ed]
[court] to any evidence in the record that provide[d] a
colorable justification for [the arbitrator’s] con-
clusion’’).
‘‘[T]he principle of vacating an award because of a
manifest disregard of the law is an important safeguard
of the integrity of alternat[ive] dispute resolution mech-
anisms. Judicial approval of arbitration decisions that
so egregiously depart from established law that they
border on the irrational would undermine society’s con-
fidence in the legitimacy of the arbitration process.’’
Garrity v. McCaskey, supra, 223 Conn. 10. For the rea-
sons explained herein, I would reverse the judgment
of the Appellate Court, thereby reinstating the order of
the trial court that vacated the arbitration award and
remanded the case for a new arbitration hearing.
Accordingly, I respectfully dissent.
1
See footnote 1 of the majority opinion for a listing of the other defendants
in this case.
2
Although the union’s arguments concededly are somewhat disorganized,
I disagree that it has not sufficiently raised a claim regarding the manifest
disregard of the law aspect of § 52-418 (a) (4). The union argues variously
throughout its brief that the arbitrator’s decision lacks evidentiary support
and is inherently inconsistent with her own findings, that the medical evi-
dence showed that M did not die from a fall and that there was no evidence
of negligence, in particular, of the element of proximate cause. Moreover,
the union repeatedly quotes from or references the applicable standard for
manifest disregard of the law, as recited hereinafter.
3
More recent Second Circuit cases clarify that two of the three prongs
enumerated in Garrity, and Connecticut cases that followed that decision,
essentially go to the same point, and thus characterize the inquiry as having
only two prongs: ‘‘The two-prong test for ascertaining whether an arbitrator
has manifestly disregarded the law has both an objective and a subjective
component. We first consider whether the governing law alleged to have
been ignored by the [arbitrator was] well defined, explicit, and clearly appli-
cable. . . . We then look to the knowledge actually possessed by the arbitra-
tor. The arbitrator must [appreciate] the existence of a clearly governing
legal principle but [decide] to ignore or pay no attention to it. . . . Both
of these prongs must be met before a court may find that there has been
a manifest disregard of law.’’ (Citations omitted; internal quotation marks
omitted.) Westerbeke Corp. v. Daihatsu Motor Co., Ltd., 304 F.3d 200, 209
(2d Cir. 2002). In regard to the first prong, ‘‘[a] legal principle clearly governs
the resolution of an issue before the arbitrator if its applicability is obvious
and capable of being readily and instantly perceived by the average person
qualified to serve as an arbitrator.’’ (Internal quotation marks omitted.) Id.;
see also D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 110–11 (2d Cir. 2006)
(reciting two-pronged test); Hardy v. Walsh Manning Securities, LLC, 341
F.3d 126, 129 (2d Cir. 2003) (same).
4
In support of this rationale, the arbitrator assumed the role of a medical
expert, without the benefit of any supporting testimony, by noting the prior
foster family’s report that M had been ‘‘ ‘inconsolable’ ’’ and explaining that
‘‘[e]xcessive crying and fussiness is a known symptom of shaken baby
syndrome as well as a commonly accepted cause of the perpetration of
that syndrome.’’