author: LANDAU, J.

text:
    JAMES SUAREZ v. ALEXANDER J. SORDO ET AL.
    (14840)
    Dupont, C. J., and Landau and Schaller, Js.
    Argued September 26
    officially released December 17, 1996

      Michael J. Walsh, for the appellants (defendants).

      Da,leP. Faulkner, with whom, on the brief, was Lucia M. Mercurio, for the appellee (plaintiff).
   LANDAU, J.

The defendants, Alexander J. Sordo and Fred Argilagos, appeal from the judgment rendered in favor of the plaintiff, James Suarez, after a jury trial. The jury found for the plaintiff on count one, sounding in negligence, and awarded damages in the amount of $94,000. It also found for the plaintiff on count two under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., and the trial court awarded attorney’s fees. On appeal, the defendants claim that the trial court improperly (1) denied their motion for a directed verdict, their motions to set aside the verdict and their motion for judgment notwithstanding the verdict, each addressed to the plaintiffs negligence claim, and (2) denied their motion to set aside the verdict as to the plaintiffs CUTPA claim. We agree and reverse the judgment of the trial court.

The jury could reasonably have found the following facts. On July 30, 1991, the plaintiff, a policeman employed by the city of New London, and a fellow officer saw Gary Jones, for whom they had an outstanding warrant, at 37-39 Tilley Street outside a building owned by the defendants. Jones was a guest of the defendants’ first floor tenant, whom he had visited on several occasions. Upon seeing the plaintiff, Jones ran into the defendants’ building through the back door, which was without a lock, and the plaintiff pursued him. At that time, the plaintiff was aware that the warrant for Jones was based on a weapons charge. The plaintiff chased Jones into a vacant third floor apartment. The door to that apartment was without a doorknob or a lock. Jones came out of the apartment shooting his gun, wounding the plaintiff in the wrist and leg.

I

The defendants first claim that the trial court improperly denied their motion for a directed verdict, then-motions to set aside the verdict, and their motion for judgment notwithstanding the verdict, each addressed to the plaintiffs negligence claim. The defendants argue that, as a matter of law, their conduct was not a proximate cause of the plaintiffs injury. They assert that their alleged negligence, namely, the housing code violations, had no relation to the subsequent shooting of the plaintiff and that Doe v. Manheimer, 212 Conn. 748, 563 A.2d 699 (1989), precludes recovery. We agree.

Our standard of review for motions to direct a verdict, motions to set aside a verdict and motions for judgment notwithstanding the verdict are the same. See Foley v. Huntington Co., 42 Conn. App. 712, 724, 682 A.2d 1026 (1996), citing Fleming v. Garnett, 231 Conn. 77, 83, 646 A.2d 1308 (1994); see also Green v. DiFazio, 148 Conn. 419, 420, 171 A.2d 411 (1961).

“Directed verdicts are not favored. Puro v. Henry, 188 Conn. 301, 303, 449 A.2d 176 (1982). Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986). Consequently, [o]ur review of a trial court’s refusal to direct a verdict or to render a judgment notwithstanding the verdict takes place within carefully defined parameters. We must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial . . . giving particular weight to the concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony .... The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion. . . . John T. Brady & Co. v. Stamford, 220 Conn. 432, 440-41, 599 A.2d 370 (1991); Iseli Co. v. Connecticut Light & Power Co., 211 Conn. 133, 140, 558 A.2d 966 (1989).” (Internal quotation marks omitted.) Fleming v. Garnett, supra, 231 Conn. 83. Thus, a trial court may set aside a verdict on a finding that the verdict is manifestly unjust because the jury, on the basis of the evidence presented, mistakenly applied a legal principle or because there is no evidence to which the legal principles of the case can be applied. Maroun v. Tarro, 35 Conn. App. 391, 396, 646 A.2d 251, cert. denied, 231 Conn. 926, 648 A.2d 164 (1994).

“Before determining whether the granting of a motion to set aside is proper, the trial court must look at the relevant law that it gave the jury to apply to the facts, and at the facts that the jury could have found based on the evidence. The law and evidence necessarily define the scope of the trial court’s legal discretion. See Gesualdi v. Connecticut Co., 131 Conn. 622, 627, 41 A.2d 771 (1945). This discretion vested in the trial court is not an arbitrary or capricious discretion, but, rather, it is legal discretion to be exercised within the boundaries of settled law. Id. This limitation on a trial court’s discretion results from the constitutional right of litigants to have issues of fact determined by a jury. Young v. Data Switch Corp., 231 Conn. 95, 101, 646 A.2d 852 (1994); Seals v. Hickey, 186 Conn. 337, 350, 441 A.2d 604 (1982). This right is an obviously immovable limitation on the legal discretion of the court to set aside a verdict. . . . Young v. Data Switch Corp., supra, 101. The trial court, upon a motion to set aside the verdict, is called on to question whether there is a legal reason for the verdict and, if there is not, the court must set aside the verdict.

“While an appellate court must give great weight to atrial court’s decision to set aside averdict, an appellate court must carefully review the jury’s determinations and evidence, given the constitutional right of litigants to have the issues decided by a jury. Great weight should be given to the action of the trial court and the presumption is that a verdict is set aside only for good and sufficient reason. However, the record must support that presumption and indicate that the verdict demonstrates more than poor judgment on the part of the jury. Marin v. Silva, [156 Conn. 321, 323, 240 A.2d 909 (1968)]; Burns v. Metropolitan Distributors, 130 Conn. 226, 228, 33 A.2d 131 [1943]. While we do not attempt to substitute our judgment for that of the trial judge, we must determine whether the jury award was such that the trial judge could have properly substituted his judgment for that of the jury. Jerz v. Humphrey, 160 Conn. 219, 225, 276 A.2d 884 (1971). An appellate court, therefore, in reviewing whether a trial court abused its legal discretion, must review the entire record and [all] the evidence.” (Internal quotation marks omitted.) Foley v. Huntington Co., supra, 42 Conn. App. 725-26.

Because the proximate cause claim is dispositive as to the negligence count, we turn to that issue first. The plaintiff claims that the defendants were aware of the criminal activity on their premises and that there were housing code violations throughout the premises, including a failure to maintain exterior doors in good condition. The plaintiff further claims that the defendants failed to lock and secure doors of their building even though they knew it was frequented by trespassers and others with criminal records. The plaintiff posits that the defendants’ knowledge of the violations and their knowledge of the violence occurring on their property placed Jones’ conduct within the foreseeable risk and, therefore, their negligence was the proximate cause of plaintiffs injuries. The plaintiff argues that the facts of this case are distinguishable from those of Doe v. Manheimer, supra, 212 Conn. 748, and more analogous to those of Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 662 A.2d 753 (1995).

We begin by addressing the principles of legal causation. “Legal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation.” Kowal v. Hofher, 181 Conn. 355, 359, 436 A.2d 1 (1980). The first component is “[c]ause in fact, occasionally referred to as actual cause, [that] asks whether the defendant’s conduct ‘caused’ the plaintiffs injury. Thus, if the plaintiffs injury would not have occurred ‘but for’ the defendant’s conduct, then the defendant’s conduct is a cause in fact of the plaintiffs injury. Conversely, if the plaintiffs injury would have occurred regardless of the defendant’s conduct, then the defendant’s conduct was not a cause in fact of the plaintiffs injury.” W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 41, p. 266.

The second component is proximate cause. “Proximate cause establishes a reasonable connection between an act or omission of a defendant and the harm suffered by a plaintiff.” Id., § 41, p. 263. Proximate cause serves to temper the “ ‘expansive view of causation [in fact] ... by the pragmatic . . . shaping [of] rules which are feasible to administer, and yield a workable degree of certainty.’ ” Doe v. Manheimer, supra, 212 Conn. 757-58. “In other words, legal cause can be portrayed pictorially as a Venn diagram, with the circle representing cause in fact completely subsuming the smaller circle representing proximate cause, which specifically focuses on that which we define as legal causation.” Stewart v. Federated Dept. Stores, Inc., supra, 234 Conn. 606. The Connecticut Supreme Court has defined proximate cause as “[a]n actual cause that is a substantial factor in the resulting harm . . . .” Id.; Mahoney v. Beatman, 110 Conn. 184, 195, 147 A. 762 (1929). 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.” (Internal quotation marks omitted.) Doe v. Manheimer, supra, 758; see Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 354, 162 N.E. 99 (1928).

In analyzing issues of proximate cause, we note that an intervening intentional or criminal act relieves a negligent defendant of liability, except where the harm caused by the intervening act is within the “scope of risk” created by the defendant’s conduct or where the intervening act is reasonably foreseeable. See Tetro v. Stratford, 189 Conn. 601, 605, 458 A.2d 5 (1983); Coburn v. Lenox Homes, Inc., 186 Conn. 370, 382-84, 441 A.2d 620 (1982). As a general rule, the act of a third person in committing an intentional act or crime is a superseding cause of harm to another resulting therefrom. D’Arcy v. Shugrue, 5 Conn. App. 12, 24-25, 496 A.2d 967, cert. dismissed, 197 Conn. 812, 499 A.2d 56, cert. denied, 197 Conn. 817, 500 A.2d 1336 (1985). In such a case, “the third person has deliberately assumed control of the situation, and all responsibility for the consequences of his act is shifted to him.” 2 Restatement (Second), Torts § 442B, comment (c) (1965); Burns v. Gleason Plant Security, Inc., 10 Conn. App. 480, 485, 523 A.2d 940 (1987).

We have adopted, as an exception to the general rule, the standard set forth in § 442B of the Restatement (Second) of Torts, that “ ‘[w]here the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor’s conduct.’ ” Stewart v. Federated Dept. Stores, Inc., supra, 234 Conn. 607-608; Doe v. Manheimer, supra, 212 Conn. 759.

Because the parties rely on Doe and Stewart as the foundation of their arguments, we review the facts and conclusions in those cases.

In Doe, the plaintiff worked as a meter reader for the Connecticut Light and Power Company. As she was walking along Green Street in the city of New London, she approached a man who appeared to be lost. He reached into his bag, took out a gun and, holding it against her, forced her from the sidewalk through a paved lot that abutted the street. He then pushed her onto an adjacent property owned by the defendant, fifty to seventy feet from the sidewalk, bounded by the defendant’s building on one side and a retaining wall in the rear. On the other side of the property, overgrown sumac bushes and tall grass shielded the area from view from the sidewalk and street. The man then assaulted andraped theplaintiffforthirty minutes. In asuit brought against the owner of the property, the plaintiff claimed that the defendant failed to remove the overgrown vegetation although he knew, or should have known, that because the neighborhood was a high crime area, third persons might use the overgrowth to conceal the peipe-tration of crimes against pedestrians. She asserted that, butfor the overgrowth of vegetation, the area wouldhave been visible to passing motorists and pedestrians and, consequently, the overgrowth caused and contributed to the assault and its duration.

Several witnesses also testified that another rape had occurred in a neighborhood building three months prior to this rape; that some fourteen months prior to the incident, the defendant’s ninety year old mother was bound, gagged and robbed in the package store located at the front of the building on the defendant’s property; that prostitution and drug dealing were more prevalent in that area than in other sections of the city; and that street people slept in the area and police frequently removed intoxicated persons from the area. Testimony was offered that the site of the assault violated the housing code because of the presence of the overgrowth of sumac trees and brush, together with discarded liquor bottles and other debris. The city sent the defendant notices of the violations, but the violations went uncorrected. Following a general verdict for the plaintiff, the trial court granted the defendant’s motion to set aside the verdict on the ground that the plaintiff had not established proximate cause as a matter of law. On appeal, the Supreme Court held that the trial court had properly concluded, as a matter of law, that the jury could not find that the defendant’s failure to remove the overgrowth was a substantial factor in producing the plaintiffs injuries and that the plaintiff had, thus, failed to establish proximate cause.

The Doe court found that the § 442B exception did not apply to the defendant landowner because “[a] prudent person who owns land abutting a public way would not . . . infer from his ordinary experience the possibility that overgrown vegetation [would] prompt or catalyze a violent criminal act.” Doe v. Manheimer, supra, 212 Conn. 762. The court also found persuasive that, while the defendant may have been aware of nonviolent activity on his property, such as vagrancy and public consumption of alcohol, there was no evidence of prior crimes of violence.

In Stewart, the plaintiffs decedent was shopping in the defendant’s department store. After shopping, she returned to her car, which was parked on the ground floor of the store’s garage. While she was placing packages in her trunk, a stranger, approached her intending to rob her. When she resisted, the robber repeatedly stabbed her, took her purse, packages and watch, and left her to die on the garage floor.

No security guard was on duty at the garage. The lighting was dim, with 300 inoperative fluorescent light fixtures. There were no gates at the entrances, nor was the garage fully fenced or enclosed at ground level. The store and garage were located in a high crime area. Violence in the area ranged from larceny and robbery to rape and murder. There had been over 1000 serious crimes reported within a two block radius of the garage, as well as numerous knifepoint robberies, larcenies from parked cars, theft and vandalism.

The defendant’s employees repeatedly requested that management increase the security in the garage. The defendant, however, took no steps to provide additional security. The defendant was informed of remedial steps necessary to correct the security problem in the garage, but management rejected its security manager’s recommendation to hire an additional guard and to enclose the garage with fencing.

During its deliberations, the jury answered four interrogatories. It found the defendant negligent because it failed to provide the requisite level of security in its garage; the defendant’s negligence was a substantial factor in causing harm to the plaintiffs decedent; the defendant’s failure to use reasonable care in guarding the safety of its patrons within its garage created or increased the likelihood of injury to a customer as a result of a criminal act within the garage; and the harm caused was within the scope of the risk created by the defendant’s negligence. After judgment was rendered on the verdict, the defendant appealed, challenging various instructions given by the trial court and challenging the denial of its motion for a directed verdict filed on the ground that the robber’s actions were not within the scope of risk foreseeable to it, i.e., the decedent’s death was not reasonably foreseeable because there were no prior incidents of murder within the garage. On this claim, the Supreme Court agreed with the trial court and concluded that a jury could reasonably have found, by a preponderance of the evidence, that the harm that befell the plaintiffs decedent had been reasonably foreseeable and within the scope of the risk created by the defendant’s negligence.

The Stewart court found the facts strikingly different from those presented in Doe. That court concluded that “the jury reasonably could have found that the particular harm involved, [the plaintiffs decedent’s] robbery and murder, had been within the foreseeable scope of the risk because the prior robberies that occurred in the garage were crimes with a natural propensity to escalate into physical violence, including murder. . . . [G]iven the criminal statistics that were available to the defendant, and the recommendations of its own security supervisor and other employees, and the past violent crimes that had occurred within the garage and its immediate vicinity, the jury reasonably could have found that the defendant had been aware or should have been aware of the dangers of larceny, robbery, rape, felony murder and other similar crimes that are prevalent in shadowy, isolated places, such as the dim parking garage in question.” Stewart v. Federated Dept. Stores, Inc., supra, 234 Conn. 613. The Stewart court also concluded that the intervention of the felon had been within the foreseeable scope of the risk created by the defendant’s negligent conduct. Id. “[T]he constant presence of individuals, encumbered with their purchases, returning to their vehicles in a parking structure that was not enclosed and that was either unguarded or insufficiently guarded, served as an invitation to criminals, an invitation that had been accepted on several previous occasions.” Id.

We conclude that the present case is more analogous to Doe than to Stewart.

We note that although the question of the existence of proximate cause is essentially a question of fact to be decided by the trier of fact; see Doe v. Manheimer, supra, 212 Conn. 756; “it becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion . . . .” Trzcinski v. Richey, 190 Conn. 285, 295, 460 A.2d 1269 (1983). Even if we assume, arguendo, that a duty existed that was breached, unless Jones’ entering the building and hiding in the third floor apartment where the locks and knobs were missing was reasonably foreseeable or unless the injury suffered by the plaintiff as a result of the shooting was within the scope of risk of the defendants’ conduct in the maintenance of the building, there was a lack of proximate cause and the action must fail.

In their argument as to foreseeability, the defendants concede that if they were negligent and their negligence created the risk of a particular harm and was a substantial factor in causing that harm, the fact that the harm was brought about through the intervention of another force does not necessarily relieve them from liability. They hasten to point out, however, the general rule that where the harm is intentionally caused by a third person and is not within the scope of risk created by the actor’s conduct, the actor is not liable. See 2 Restatement (Second), supra, § 442B.

The first question to be resolved is whether the criminal conduct of Jones was a reasonably foreseeable consequence of the defendants’ negligence. We conclude that the intervention of Jones was not foreseeable as a matter of law and, therefore, we reverse the jury’s determination.

Some additional facts are necessary. The building, containing thirteen apartments, had been subject to four inspections by the housing department between May, 1990, and June, 1991. These inspections revealed, inter alia, exterior doors without doorknobs and locks in violation of the city housing code. An abatement order regarding an inspection on June 7, 1990, was sent to the defendant Argilagos on June 21, 1990. An abatement order dated November 2, 1990, was sent to both defendants regarding an inspection on October 19, 1990, containing eighty-four violations of the housing code. An inspection on June 3 and June 4,1991, resulted in another abatement order. One of the violations found was that the rear door to one apartment needed repair. The conditions were never remedied.

The defendants knew that the building was in a high crime area that it was frequented by vandals and drug dealers, and that the police came to the property in pursuit of or to investigate persons suspected of criminal activity. Between June, 1990, and August, 1991, the police responded to seventy-six calls concerning the property. Two days before the incident at issue in this case, Argilagos made a complaint to the police regarding unwanted people in the vacant third floor apartment where the shooting took place.

While the recent history of the property and the conduct of the defendants is cause for concern, the fact that the shooting occurred in the defendants’ building is, at most, incidental. If the felon had not run into the building, he could just as easily have shot the plaintiff wherever the felon was cornered. The absence of locks and knobs on the building’s doors may be said to be a cause in fact, sometimes referred to as an actual cause. Therefore, the defendant’s conduct may have “caused” the plaintiffs injury. See Stewart v. Federated Dept. Stares, Inc., supra, 234 Conn. 605, citing W. Prosser & W. Keeton, supra, § 41. “Philosophically, cause in fact is limitless; ‘but for’ the creation of this world, no crime or injury would ever have occurred. . . . Lines must be drawn determining how far down the causal continuum individuals will be held liable for the consequences of their actions.” (Citations omitted.) Stewart v. Federated Dept. Stores, Inc., supra, 605-606, citing W. Prosser & W. Keeton, supra, § 42. This line is labeled “proximate cause.” Stewart v. Federated Dept. Stores, Inc., supra, 605-606.

By allowing apartments in their building to be without locks in a high crime area, the defendants may well have foreseen that a felon might enter and steal items. It was not foreseeable, however, that a felon, walking on Tilley Street, would be confronted by a policeman having in his possession a warrant for the felon’s arrest that indicated that the felon was armed, and that, upon seeing the policeman, the felon would run through the unlocked rear door of a building to which he had been invited by a tenant, run up to the vacant third floor apartment and obtain access to the apartment to conceal himself, all because the building had no locks on the door. Further, it was not foreseeable that the policeman would pursue the felon to that apartment and that the felon would shoot the policeman. “To hold otherwise would be to convert the imperfect vision of reasonable foreseeability into the perfect vision of hindsight.” Burns v. Gleason Plant Security, Inc., supra, 10 Conn. App. 486.

Even if we assume, arguendo, that the incident was reasonably foreseeable, the plaintiff must still show by a fair preponderance of the evidence that harm intentionally caused by a third person is within the scope of the risk created by the defendant’s negligent conduct. Stewart v. Federated Dept. Stores, Inc., supra, 234 Conn. 607. Here, the defendants’ negligent conduct is the failure to install locks and knobs on the doors of their building. The question to be answered is whether the plaintiffs injury, which was caused by the third party felon, was within the scope of risk created by the absence of the locks and knobs on the doors.

The plaintiff asserts that the evidence demonstrates that the harm caused by the intervening act is within the scope of risk of the defendants’ conduct and, therefore, satisfies the § 442B exception to the general rule. He argues that the evidence shows continuous criminal activity on the premises, including violent activity such as assaults and burglaries. “Our cases make it clear that, to be within the ‘scope of the risk,’ the harm actually suffered must be of the same ‘general type’ as that which makes the defendant’s conduct negligent in the first instance.” (Emphasis added.) Doe v. Manheimer, supra, 212 Conn. 764. It is the general nature of the crime that defines the breadth of the scope of the risk. Stewart v. Federated Dept. Stores, Inc., supra, 234 Conn. 611.

The evidence presented at trial demonstrated that the tenants in the building left the doors open despite the fact that locks were installed on some doors. Jones was an invited guest of a tenant and, thus, was granted permission by the tenant to enter the premises. We cannot ignore the fact that “[v]iolent crimes are actuated by a host of social and psychological factors. Although, as a matter of fact, it may be true that one of those actuating factors is mere opportunity for concealment, common experience informs us that such a factor is at most incidental.” Doe v. Manheimer, supra, 212 Conn. 762.

The jury could not reasonably conclude from the evidence presented that the defendants’ allegedly negligent conduct, i.e., the absence of locks and knobs on the third floor apartment door, created a risk of the type of harm actually suffered by the plaintiff. Therefore, the plaintiff has failed to establish the necessary causal relationship. See id., 764.

II

The defendants next claim that the trial court improperly denied their motion to set aside the verdict as to the plaintiffs CUTPA claim. The defendants argue that as a matter of law the plaintiff failed to establish an unfair trade practice under CUTPA and failed to establish a sufficient relationship between the plaintiff and the defendants to support a CUTPA claim.

“In determining whether a verdict should be set aside, the court is obligated first to review the evidence giving it a construction most favorable to sustaining the jury’s verdict. Kalleher v. Orr, 183 Conn. 125, 126-27, 438 A.2d 843 (1981). In addition, the trial court’s refusal to disturb the jury’s verdict is entitled to great weight, and every reasonable presumption should be given in favor of its correctness. Waldron v. Raccio, 166 Conn. 608, 618, 353 A.2d 770 (1974); Shenefield v. Greenwich Hospital Assn., 10 Conn. App. 239, 247, 522 A.2d 829 (1987). In reviewing this issue, our sole responsibility is to decide whether, on the evidence presented, the jury could fairly reach the conclusion they did. Wu v. Fairfield, 204 Conn. 435, 440, 528 A.2d 364 (1987).” Pagani v. BT II, Ltd. Partnership, 24 Conn. App. 739, 747-48, 592 A.2d 397, cert. dismissed, 220 Conn. 902, 593 A.2d 968 (1991). “ ‘The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion.’ ” John T. Brady & Co. v. Stamford, supra, 220 Conn. 441; Iseli Co. v. Connecticut Light & Power Co., supra, 211 Conn. 140.

CUTPA provides that “[n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or business.” General Statutes § 42-110b (a). “The policy behind CUTPA is to encourage litigants to act as private attorneys general and to bring actions for unfair or deceptive trade practices.” Hernandez v. Monterey Village Associates Ltd. Partnership, 17 Conn. App. 421, 425, 553 A.2d 617 (1989). CUTPA, however, is limited to “[a]ny person who suffers any ascertainable loss of money or property, real or personal, as a result o/the use or employment of a [prohibited] method, act or practice . . . .” (Emphasis added.) General Statutes § 42-1 lOg (a). The plain language of § 42-1 lOg (a) requires that the plaintiff suffer an ascertainable loss that was caused by the alleged unfair trade practice. Haesche v. Kissner, 229 Conn. 213, 223-24, 640 A.2d 89 (1994). In the present case, no CUTPA violation exists because, as we determined in part I, the plaintiff failed to show that he suffered harm “as a result of’ the alleged violation. Therefore, the trial court improperly denied the defendants’ motion to set aside the verdict as to the plaintiffs CUTPA claim.

The judgment is reversed and the case is remanded with direction to render judgment for the defendants.

In this opinion the other judges concurred.

       The defendants also claim that the trial court improperly failed to charge the jury on the doctrine of superseding cause. Because we agree with the defendants that the trial court improperly denied the motion for a directed verdict, the motion to set aside the verdict, and the motion for judgment notwithstanding the verdict on the plaintiffs negligence claim, the defendants’ failure to charge claim is moot and, thus, will not be addressed. State v. Smith, 207 Conn. 152, 178, 540 A.2d 679 (1988).
      The defendants finally claim that the trial court improperly permitted the jury to consider the CUTPA claim and that the jury charge given was improper. Because our determination on the issue of proximate cause is dispositive on the CUTPA issue, we need not reach these claims.

       In his brief, the plaintiff argues that because the defendants failed to file a timely motion to set aside the verdict, the defendants’ claims should be limited to plain error review. See Saporoso v. Aetna Life & Casualty Co., 221 Conn. 356, 363, 603 A.2d 1160 (1992). At oral argument, however, all parties conceded that the limited review is no longer the rule of law because in Santopietro v. New Haven, 239 Conn. 207, 211-21, 682 A.2d 106 (1996), the Supreme Court concluded that properly preserved claims of error need not be presented a second time in a motion to set aside the verdict to be afforded plenary review on appeal.

       The plaintiffs further allege that such conduct was in violation oí CUTPA.

       Section 423.4 of the New London housing code provides: “Every exterior door, door hinge, and door latch shall be maintained in good condition.”

       Criminal activity included threats, burglary, suspicious persons, assaults, fights, narcotics, trespassing, disturbances, domestic violence, and one dead body.

       In view of this conclusion, it, is unnecessary to determine whether the plaintiff is a “consumer” within the definition of CUTPA.


source: Caselaw Access Project

author: O’CONNELL, J.

license: Public Domain

text:
    ROBERT CARRIERO v. BOROUGH OF NAUGATUCK ET AL.
    (14862)
    O’Connell, Foti and Hennessy, Js.
    Argued September 16
    officially released December 17, 1996

      Jayne Elser Welch, with whom, on the brief, was Peter E. Mariano, for the appellant (named defendant).

      David J. Morrissey, for the appellee (plaintiff).

      Frank A. May filed a brief for the cities of Hartford and Bridgeport as amici curiae.
   O’CONNELL, J.

The defendant borough of Nauga-tuck appeals from the decision by the compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner). Naugatuck claims that the board incorrectly determined that the “cap” established by General Statutes § 7-433b (b), which limits the amount of heart and hypertension benefits a retired municipal police officer may receive under General Statutes § 7-433c, does not apply to pension benefits for years of service as provided in a union contract with the municipality.

The commissioner found the following facts. The plaintiff is a retired Naugatuck police officer. In January, 1991, in accordance with its contract with the police union, Naugatuck awarded the plaintiff a pension based solely on his thirty years of service with its police department. This pension was unrelated to his hypertension claim under § 7-433c, and his disability was not an issue or a consideration in Naugatuck’s decision to grant the pension.

The commissioner further found that on March 1, 1991, the plaintiff was awarded permanent partial disability benefits because of a 42.5 percent disability of his heart. These disability benefits were awarded pursuant to § 7-433c.

The commissioner held that the statutory cap of § 7-433b (b) did not apply in the present case because the plaintiffs pension was not being paid under § 7-433c but rather was a retirement pension based on years of service. Naugatuck appealed to the board, which affirmed the commissioner’s decision. Naugatuck now appeals the board’s decision to this court.

The question before us is whether a pension that was not given under the heart and hypertension statute, § 7-433c, is affected by the limitation of § 7-433b (b). We conclude that it is not affected and, therefore, we affirm the board’s decision.

“Under the provisions of § 7-433c, qualifying members are entitled to receive (1) a retirement allowance from the municipal or state retirement system in an amount equal to what they would receive for a disability that arose out of and in the course of employment, and (2) compensation and medical care from the municipal employer in the same amount and in the same manner as provided for under the workers’ compensation law.” Lundgren v. Stratford, 12 Conn. App. 138, 144, 530 A.2d 183, cert. denied, 205 Conn. 808, 532 A.2d 76 (1987). Historically, the total of those two benefits could exceed the amount a police officer would have received if he were still working. 20 H.R. Proc., Pt. 5, 1977 Sess., p. 1817; 20 H.R. Proc., Pt. 14, 1977 Sess., p. 6049. In 1977, however, the legislature enacted Public Acts 1977, No. 77-520, § 2, now General Statutes § 7-433b (b), which placed a 100 percent ceiling or cap on the total payments that could be received under § 7-433c. Lambert v. Bridgeport, 204 Conn. 563, 569, 529 A.2d 184 (1987). No longer could anyone receive a disability pension and hypertension benefits exceeding 100 percent of an active police officer’s pay.

Naugatuck argues that all retirement benefits and pensions are included in the limitation of § 7-433b (b), not only those paid under § 7-433c. The plaintiff argues that if the legislature had intended to include within the § 7-433b (b) cap retirement benefits other than disability benefits payable under § 7-433c, it could have easily drafted § 7-433b (b) to read, “compensation under 7-433c and all retirement or survivors benefits shall be adjusted . . . .” “ ‘[W]hen the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.’ ” Lawson v. Whitey’s Frame Shop, 42 Conn. App. 599, 615, 682 A.2d 1016 (1996). Accordingly, we conclude that “retirement or survivors benefits under 7-433c” refers solely to disability pension and permanent partial disability benefits established in that statute.

Naugatuck argues that the plaintiff is receiving a windfall by collecting both his regular pension and the permanent partial disability benefit under § 7-433c. Nau-gatuck claims that this double recovery is contrary to the legislative intent of § 7-433b (b) because both benefits arose from the same cause, i.e., the 42.5 percent disability of the plaintiffs heart.

As a general rule, if two governmental benefits arise from the same cause, a person cannot be entitled to both benefits. Middletown v. Local Union No. 1073, 1 Conn. App. 58, 64, 467 A.2d 1258 (1983), cert. dismissed, 192 Conn. 803, 471 A.2d 244 (1984). The aim of the legislature when it enacted § 7-433c was to limit the payment of dual governmental benefits arising from the same cause, i.e., heart disease. Id.

Here, the commissioner specifically found that the plaintiff was awarded a retirement pension based solely on his length of service and that he was eligible for that pension regardless of his disability. In addition, the commissioner found that the plaintiff suffered a disability to his heart that entitled him to permanent partial disability benefits under § 7-433c. These are separate and distinct benefits. The pension and the disability benefits do not arise from the same cause and, therefore, do not implicate the limitation of § 7-433b (b). The statute prohibits only the receipt of hypertension disability benefits and a hypertension pension that together exceed 100 percent of an active duty officer’s compensation. A pension for long years of service is not a factor in the calculation.

This court is satisfied that this interpretation is consistent with the language of the statute and equitable to a longtime service officer who becomes disabled. A thirty year veteran of the police department, vested with pension rights, should not be limited to the same benefits as a disabled rookie.

Finally, this court must give due deference to the board’s interpretation of the statutes it enforces. “Although the interpretation of statutes is ultimately a question of law ... it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement.” (Internal quotation marks omitted.) Board of Labor Relations v. Freedom of Information Commission, 43 Conn. App. 133, 138, 682 A.2d 1068 (1996), citing Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986).

The board determined that the ceiling of § 7-433b (b) applied solely to the two benefits under § 7-433c, that is, the permanent partial disability benefits and the disability pension. The board’s decision relied on Costello v. Fairfield, 214 Conn. 189, 193, 571 A.2d 93 (1990). The Supreme Court in Costello affirmed the board’s decision to allow a supplemental award of specific indemnity payments, holding that “[b]ecause the Heart and Hypertension Act is remedial legislation, we should not ourselves enlarge upon the limitations it imposes on recovery.” Id., 194, citing Kinney v. State, 231 Conn. 54, 59, 566 A.2d 670 (1989); see also Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988). Similarly, this court will not limit the plaintiffs recovery beyond the clear and specific mandates of § 7-433b (b).

We conclude that the purpose of § 7-433b (b) is to prevent collection of both a disability retirement under § 7-433c and compensation benefits under § 7-433c when the total of those benefits would exceed 100 percent of the earnings of an active duty police officer in the same position as the plaintiff. This section is not applicable where, as here, the plaintiffs pension was not awarded “under Section 7-433c” but was a regular pension for long years of service.

The decision of the compensation review board is affirmed.

In this opinion the other judges concurred.

       The second injury fund was also named as a defendant because the plaintiff went to work for a private employer subsequent to his retirement from the Naugatuck police department. The second injury fund did not participate in the appeal.

       General Statutes § 7-433b (b) provides in pertinent part: “[T]he cumulative payments, not including payments for medical care, for compensation and retirement or survivors benefits under section 7-433c shall be acjjusted so that the total of such cumulative payments received by such member or his dependents or survivors shall not exceed one hundred per cent of the weekly compensation being paid, during their compensable period, to members of such department in the same position which was held by such member at the time of his'death or retirement. . . .” (Emphasis added.)

       General Statutes § 7-433c provides in pertinent part: “(a) In recognition of the peculiar problems of . . . regular members of paid police departments, and in recognition of the unusual risks . . . including an unusually high degree of susceptibility to heart disease and hypertension ... in the event a uniformed member . . . suffers either off duty or on duty any condition or impairment of health . . . or his temporary or permanent, total or partial disability, he . . . shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment . . . .”


author: HEIMAN, J.

text:
    HALINA M. CALNAN v. ADMINISTRATOR, UNEMPLOYMENT COMPENSATION ACT, ET AL.
    (15654)
    Dupont, C. J., and Heiman and Hennessy, Js.
    Submitted on briefs October 28
    officially released December 17, 1996

      Richard Blumenthal, attorney general, and Richard T. Sponzo and Charles A. Overend, assistant attorneys general, filed a brief for the appellant (named defendant).

      Halina M. Calnan, pro se, the appellee (plaintiff), filed a brief.
   HEIMAN, J.

The defendant administrator of the unemployment compensation act (administrator) appeals from the judgment of the trial court sustaining the plaintiffs appeal from the determination by the board of review of the employment security appeals division (board) that the plaintiff lacked sufficient cause to leave her job and its denial of unemployment compensation benefits. On appeal, the administrator asserts that the trial court improperly reviewed the board’s findings of fact for support in the evidence because, as a matter of law, the trial court was bound by the board’s findings of fact. Moreover, the administrator claims that even if the trial court had a right to review the board’s factual findings, the board’s findings of fact were supported by the evidence presented at the hearing before the appeals referee.

The following facts are pertinent to our resolution of this appeal. The plaintiff was employed by the defendant Greater Hartford Association for Retarded Citizens, Inc. (employer), as a fiscal specialist from March 22, 1993, to April 1, 1994. The duties of a fiscal specialist included payroll operations, accounts payable work and accounts receivable work. The plaintiff initially performed duties related to payroll operations and accounts receivable.

On Friday, April 1, 1994, the plaintiff was informed by her employer that another person was working on accounts receivable and that the plaintiff was to be reassigned to accounts payable. The plaintiff advised her employer that she regarded this reassignment as a demotion because accounts payable was less demanding than accounts receivable. The employer advised the plaintiff that accounts receivable required more attention to detail and more speed than she could handle. The plaintiff advised the employer that she would not return to work on the following Monday.

The plaintiff sought unemployment compensation benefits claiming that the work to which she had been reassigned was below her experience and training. The administrator determined that the plaintiff was entitled to receive unemployment compensation benefits effec-five April 3, 1994. The employer appealed the decision of the administrator to the employment security appeals division. The appeals referee affirmed the decision of the administrator on the issue of a voluntary leaving and affirmed the award of benefits.

The employer appealed the decision of the referee to the board of review. The board reviewed the record, including the tape recording of the hearing before the referee. On the basis of the record, the board determined that the employer had established at the hearing before the referee that the plaintiffs reassignment did not involve a loss in pay and that analytical work at a higher professional level was available for the plaintiff along with the accounts payable duties. It also determined that the employer had established that at the time the fiscal specialist positions were created in 1987, it was intended that the fiscal specialists would move from one function to another.

The board further determined, on the basis of the record, that the plaintiff did not establish that there was a breach of the contract of hire, that her lateral reassignment to accounts payable involved a loss of professional status, or that her reassignment was an adverse or substantial change in her working conditions. The board also determined that the employer had established that it reassigned the plaintiff to perform another function within her job description for which the employer believed she was better suited and that did not involve a change in her compensation or hours.

The board also determined, on the basis of on the record before it, that the plaintiff had failed to explore reasonable alternatives that might have preserved the employment relationship. Finally, the board concluded that the plaintiff did not have sufficient cause to leave her employment, and reversed the decision of the referee.

The plaintiff appealed the decision of the board to the Superior Court pursuant to General Statutes § 31-249b. The trial court, after reviewing a transcript of the evidence before the referee, found that the modified findings made by the board were not supported by the evidence presented before the referee and accordingly reversed the decision of the board. This appeal follows.

The administrator’s sole claim on appeal is that the trial court improperly reviewed the board’s findings of fact when, as a matter of law, the trial court was bound by the findings of fact and should not have reviewed those findings for support in the evidence. The administrator posits that the plaintiff failed to file a motion with the board to correct its findings and that the filing of such a motion is a condition precedent to pursue a challenge to the board’s findings. We agree with the administrator and reverse the judgment of the trial court.

We begin our analysis by noting that appeals from the board to the Superior Court are specifically exempted from governance by General Statutes § 4-166 et seq., the Uniform Administrative Procedure Act. All appeals from the board to the court are controlled by § 31-249b. Section 31-249b specifically provides that any finding of the board “shall be subject to correction only to the extent provided by section 519 of the Connecticut Practice Book. . . ,” Practice Book § 519 (a) specifies that the trial court “does not retry the facts or hear evidence. It considers no evidence other than that certified to it by the board, and then for the limited purpose of determining whether . . . there was any evidence to support in law the conclusions reached. [The court] cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses. . . .”

Practice Book § 515A provides the mechanism for the correction of the board’s findings. If the appellant desires that the findings be corrected, the appellant must, within two weeks of the filing of the record in the Superior Court, file with the board a motion for correction of the findings.

In appeals of this nature, “the Superior Court does not try the matter de novo. It is not its function to adjudicate questions of fact. Nor may it substitute its own conclusions for those of the [board].” Guevara v. Administrator, Unemployment Compensation Act, 172 Conn. 492, 495, 374 A.2d 1101 (1977). Rather, it is the function of the court to determine, on the record, “whether there is a logical and rational basis for the decision of the [board] or whether, in the light of the evidence, [the board] has acted illegally or in abuse of [its] discretion.” Taminski v. Administrator, Unemployment Compensation Act, 168 Conn. 324, 326, 362 A.2d 868 (1975).

Here, the plaintiff failed to file a motion with the board for correction of the findings, a necessary prerequisite to a challenge to the board’s decision. Furthermore, in examining the board’s decision, the trial court failed to apply the correct standard of review. The trial court improperly reviewed the evidence to determine its weight and the credibility of witnesses, and then substituted its own conclusions for those of the board. Moreover, our review of the proceedings convinces us that the decision of the board was logically and rationally supported by the evidence, and was not unreasonable, arbitrary, illegal or an abuse of the board’s discretion. See id., 326; Stamford v. Administrator, Unemployment Compensation Act, 15 Conn. App. 738, 742-43, 546 A.2d 335, cert. denied, 209 Conn. 814, 550 A.2d 1082 (1988).

The judgment is reversed and the case is remanded with direction to render judgment dismissing the plaintiffs appeal.

In this opinion the other judges concurred.

       General Statutes § 31-249b provides: “At any time before the board’s decision has become final, any party, including the administrator, may appeal to the superior court for the judicial district of Hartford-New Britain or for the judicial district wherein the appellant resides. Any or all parties similarly situated may join in one appeal. In such judicial proceeding the original and five copies of a petition, which shall state the grounds on which a review is sought, shall be filed in the office of the board. The chairman of the board shall, within the third business day thereafter, cause the original petition or petitions to be mailed to the clerk of the superior court and copy or copies thereof to the administrator and to each other party to the proceeding in which such appeal was taken; and said clerk shall docket such appeal as returned to the next return day after the receipt of such petition or petitions. In all cases, the board shall certify the record to the court. The record shall consist of the notice of appeal to the referee and the board, the notices of hearing before them, the referee’s findings of fact and decision, the findings and decision of the board, all documents admitted into evidence before the referee and the board or both and all other evidentiary material accepted by them. Upon request of the court, the board shall (1) in cases in which its decision was rendered on the record of such hearing before the referee, prepare and verify to the court a transcript of such hearing before the referee; and (2) in cases in which its decision was rendered on the record of its own evidentiary hearing, provide and verify to the court a transcript of such hearing of the board. In any appeal, any finding of the referee or the board shall be subject to correction only to the extent provided by section 519 of the Connecticut Practice Book. Such appeals shall be claimed for the short calendar unless the court shall order the appeal placed on the trial list. An appeal may be taken from the decision of the superior court to the appellate court in the same manner as is provided in section 51-197b. It shall not be necessary in any judicial proceeding under this section that exceptions to the rulings of the board shall have been made or entered and no bond shall be required for entering an appeal to the superior court. Unless the court shall otherwise order after motion and hearing, the final decision of the court shall be the decision as to all parties to the original proceeding. In any appeal in which one of the parties is not represented by counsel and in which the party taking the appeal does not claim the case for the short calendar or trial within a reasonable time after the return day, the court may of its own motion dismiss the appeal, or the party ready to proceed may move for nonsuit or default as appropriate. When an appeal is taken to the superior court, the clerk thereof shall by writing notify the board of any action of the court thereon and of the disposition of such appeal whether by judgment, remand, withdrawal or otherwise and shall, upon the decision on the appeal, furnish the board with a copy of such decision. The court may remand the case to the board for proceedings de novo, or for further proceedings on the record, or for such limited purposes as the court may prescribe. The court also may order the board to remand the case to a referee for any further proceedings deemed necessary by the court. The court may retain jurisdiction by ordering a return to the court of the proceedings conducted in accordance with the order of the court or the court may order final disposition. A party aggrieved by a final disposition made in compliance with an order of the superior court, by the filing of an appropriate motion, may request the court to review the disposition of the case.”

       General Statutes § 4-186 (a) provides: ‘‘Appeals from the decisions of the administrator of the Unemployment Compensation Act, appeals from decisions of the employment security appeals referees to the board of review, and appeals from decisions of the Employment Security Board of Review to the courts, as is provided in chapter 567, and appeals from the commissioner of revenue services to the courts, as provided in chapters 207 to 212a, inclusive, 214, 215, 219, 221, 222, 224 and 225 are excepted from the provisions of this chapter.”

       See footnote 1.

       Practice Book § 519 provides in pertinent part: “(a) Such appeals are heard by the court upon the certified copy of the record filed by the board. The court does not retry the facts or hear evidence. It considers no evidence other than that certified to it by the board, and then for the limited purpose of determining whether the finding should be corrected, or whether there was any evidence to support in law the conclusions reached. It cannot review the conclusions of the board when these depend upon the weight of the evidence and the credibility of witnesses. . . .
      “(b) Corrections by the court of the board’s finding will only be made upon the refusal to find a material fact which was an admitted or undisputed fact, upon the finding of a fact in language of doubtful meaning so that its real significance may not clearly appear, or upon the finding of a material fact without evidence.”

       Practice Book § 515A provides in pertinent part: “If the appellant desires to have the finding of the board corrected he or she must, within two weeks after the record has been filed in the superior court, unless the time is extended for cause by the board, file with the board a motion for the correction of the finding and with it such portions of the evidence as he or she deems relevant and material to the corrections asked for, certified by the stenographer who took it; but if the appellant claims that substantially all the evidence is relevant and material to the corrections sought, he or she may file all of it, so certified, indicating in the motion so far as possible the portion applicable to each correction sought. ...”


text:
    STATE OF CONNECTICUT v. COREY SABRE
    (13809)
    Foü, Lavery and Heiman, Js.

      Argued October 1
    officially released December 17, 1996

      Frederick D. Paoletti, Jr., with whom, on the brief, were Paul C. Gusmano and Jerome J. Larracuenle, for the appellant (defendant).

      John C. Smriga, senior assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Stephen J. Sedensky, assistant state’s attorney, for the appellee (state).
   HEIMAN, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of two counts of sexual assault in the second degree in violation of General Statutes § 53a~71 (a) (l), three counts of risk of injuiy to a child in violation of General Statutes § 53-21, one count of attempted sexual assault in the second degree in violation of General Statutes §§ 53a-71 (a) (1) and 53a-49 (a) (2), and one count of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2). The defendant was acquitted of one count of sexual assault in the first degree, one count of sexual assault in the second degree, and two counts of risk of injury to a child. On appeal, the defendant claims that the trial court improperly (1) denied his motion for a judgment of acquittal as to the charge of sexual assault in the first degree when the evidence was insufficient to establish that the victim was under thirteen years of age at the time of the alleged offense, (2) permitted the defendant’s conviction of sexual assault in the first and second degrees to stand when the evidence was insufficient to establish the element of penetration, (3) charged the jury by failing to specify that penetration is required to complete fellatio in both first and second degree sexual assault, (4) charged the jury by reading the statutory definition of sexual intercourse, and (5) instructed the jury as to the charge of risk of injury to a child. We affirm the judgment of the trial court.

The jury could reasonably have found the following facts. Over a period of three years, the defendant repeatedly had sexual contact with the younger sister of his girlfriend D. During the period of repeated sexual contact, the defendant was between twenty-two and twenty-six years of age and the victim, who was bom on December 3, 1978, was between ten and fourteen years of age. The sexual contact began in the spring of 1989 when the defendant rubbed the victim’s chest under her clothing while the victim was spending the night at the Bridgeport condominium that belonged to D and the defendant, who was D’s boyfriend.

During the spring of 1990, the defendant and D were living together at the victim’s parents’ home in Fairfield. In the spring of 1990, when the defendant and the victim were alone in the house, the defendant compelled the victim to perform fellatio on him. The defendant put his penis into the victim’s mouth, pushed her head back and forth with his hand, and ejaculated in her mouth. The victim went into the bathroom and vomited.

In late November or December, 1992, the victim, her friend, S, the defendant and D were watching videos at the victim’s parents’ home. The defendant and the victim left in the defendant’s car to return the videos and to retrieve some of D’s clothing from the condominium that she shared with the defendant. After returning the videos, the defendant proceeded to his condominium at 103 Huntington Turnpike. The defendant and the victim entered the condominium. Once inside, the defendant called the victim into the bedroom and compelled her to perform fellatio on him. The defendant ejaculated in the victim’s mouth, again causing the victim to vomit. The defendant then expressed his desire to have vaginal intercourse with the victim. When the victim refused, the defendant inserted his finger into her vagina and then proceeded to make an unsuccessful attempt to penetrate her vagina with his penis. The defendant then drove the victim back to her parents’ home. Upon her return home, the victim was shaking and expressed a desire to go to bed. S asked the victim what was wrong, and the victim told S that the defendant had “done stuff’ to her.

In May, 1993, D, the defendant, and the victim’s friend, C, were at the victim’s parents’ home. The defendant offered to drive C home. The defendant, C and the victim left in the defendant’s car and dropped C off at her house. The defendant then proceeded to a parking lot between Pequot and Center Streets in Fairfield. While sitting in the car, the defendant compelled the victim to performing fellatio on him. The victim put her mouth on the defendant’s penis while the defendant pushed her head up and down.

About one month after the May, 1993 parking lot incident, during a seventh grade gym class, the victim confided to her friend C that the defendant had been having sexual contact with her and that it made her uncomfortable. C told her mother who informed the victim’s mother. After a discussion among the victim, her sister D and their mother, the police were informed. The victim subsequently gave a written statement about the sexual assaults to Detective William Young of the Fairfield police department, and also discussed the assaults with her school guidance counselor, William Bosch.

On April 21, 1994, the defendant was found guilty as previously set forth and sentenced on May 8, 1994, in accordance with his conviction. This appeal follows.

I

The defendant first claims that because the victim gave conflicting testimony regarding when the sexual assault in the first degree occurred, the evidence was insufficient to prove beyond a reasonable doubt that the victim was under thirteen years of age at the time of the offense, a necessary element of the crime of sexual assault in the first degree. The defendant further claims that the trial court violated his due process rights under the United States and Connecticut constitutions to be acquitted unless proven guilty of all essential elements of the crime charged. We are unpersuaded.

“When called on to review a challenge to the sufficiency of the evidence to support a conviction, we undertake a two part analysis. . . . First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .” (Citations omitted; internal quotation marks omitted.) State v. Cintron, 39 Conn. App. 110, 118, 665 A.2d 95 (1995).

Having carefully reviewed the evidence, we conclude that it was sufficient to support the jury’s determination that the victim was under the age of thirteen at the time of the sexual assault in the first degree. At trial, the evidence disclosed that the victim was born on December 3, 1978. The evidence further disclosed that the victim performed fellatio on the defendant at her home in Fairfield. At the outset of her testimony, the victim expressed uncertainty as to the exact date of this incident. She testified, however, that she thought it took place a short time after the defendant had rubbed her chest in the spring of 1989 when the victim was ten years old. She thought she was in “about fifth or sixth” grade at the time but she was “not quite sure.” When asked directly whether she remembered the year during which this act occurred, she indicated that it was in the spring of 1990 while she was in the fourth grade and eleven years old.

The jury “determines with finality the credibility of witnesses and the weight to be accorded their testimony. . . . Any part of a witness’ testimony may be believed or disbelieved by [the jury].” (Citation omitted; internal quotation marks omitted.) State v. Taylor, 23 Conn. App. 426, 429, 580 A.2d 1004 (1990). “[I]n viewing evidence which could yield contrary inferences, the jury is not barred from drawing those inferences consistent with guilt and is not required to draw only those inferences consistent with innocence. The rule is that the jury’s function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical. . . . We do not sit as a [seventh] juror who may cast a vote against the verdict based upon our feeling that some doubt of guilt is shown by the cold printed record. We have not had the jury’s opportunity to observe the conduct, demeanor, and attitude of the witnesses and to gauge their credibility.” (Citations omitted; internal quotation marks omitted.) State v. Cintron, supra, 39 Conn. App. 119.

“In considering the evidence introduced in a case, [j]uries are not required to leave common sense at the courtroom door . . . nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts in hand, to the end that their action may be intelligent and their conclusions correct.” (Internal quotation marks omitted.) Id. “[W]e rely on the good sense and judgment of American juries to weigh evidence with some element of untrustworthiness since such evidence is customary grist for the jury mill.” (Internal quotation marks omitted.) State v. Rivera, 32 Conn. App. 193, 203, 628 A.2d 996, cert. denied, 227 Conn. 920, 632 A.2d 698 (1993).

From the evidence, the jury could have reasonably concluded that the victim was under the age of thirteen at the time of the sexual assault in the first degree. Thus, the defendant’s claim that there was insufficient evidence to find him guilty of sexual assault in the first degree is without merit.

II

The defendant next asserts that there was insufficient evidence for the jury reasonably to find that the state had established beyond a reasonable doubt the element of penetration, an element necessary to prove the commission of sexual assault in the first and second degrees. The defendant further asserts that his convictions of sexual assault in both the first and second degrees deprived him of his due process rights under the United States and Connecticut constitutions to be acquitted unless proven guilty of each element of the charged offense beyond a reasonable doubt. We are unpersuaded.

The defendant concedes that this claim was not properly preserved at trial, and thus seeks review of this claim under the doctrine of State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We review this unpreserved claim because this court has previously held that “[u]npreserved sufficiency claims are reviewable on appeal because such claims implicate a defendant’s federal constitutional right not to be convicted of a crime upon insufficient proof.” State v. Laws, 37 Conn. App. 276, 281, 655 A.2d 1131, cert. denied, 234 Conn. 907, 659 A.2d 1210 (1995).

We will not repeat the standard of review applied to a challenge to the sufficiency of the evidence, as that standard was fully set out in our analysis of the defendant’s first; claim.

The defendant claims that because the victim did not use the term “fellatio” while testifying in court, and never asserted that the defendant’s penis entered her mouth or that the defendant’s penis was in her mouth at the times of the ejaculations, the element of penetration was not established. We disagree.

With regard to each count of sexual assault, the victim testified that she had oral sex with the defendant, specifying that she “put [her] mouth on his penis” and he pushed her head “up and down” or “back and forth.” Moreover, the prosecutor directly asked the victim, “Now you indicated that he put his penis in your mouth?” and the victim responded “Yes.” General Statutes § 53a-65 (2) provides: “Penetration, however slight, is sufficient to complete . . . fellatio and does not require the emission of semen. . . Nonetheless, regarding the spring, 1990 and November or December 1992 counts of sexual assault, there was evidence that the defendant ejaculated into the victim’s mouth, causing her to “throw up.”

The jury could have reasonably concluded from the evidence that the penetration element of the crime of sexual assault had been established beyond a reasonable doubt. Thus, the defendant’s claim that the evidence was insufficient to find him guilty of sexual assault is without merit.

III

The defendant next asserts that the trial court improperly charged the jury on the counts charging sexual assault in the first and second degrees by failing to inform the jury that penetration is necessary to complete fellatio. We disagree.

The defendant raises this issue for the first time on appeal. At trial, the defendant failed to request a charge on this issue or to take exception to the court’s instructions. The defendant concedes that this claim was not properly preserved and thus seeks review of this claim under the doctrine of State v. Golding, supra, 213 Conn. 233.

When the defendant claims that the court’s instructions failed to inform the jury adequately of all the essential elements of the crime charged, a limited review is warranted, as it raises the possibility of a due process violation affecting the fairness of the trial. See State v. Lanier, 39 Conn. App. 478, 484, 664 A.2d 1202, cert. denied, 235 Conn. 931, 667 A.2d 1269 (1995).

Certain additional facts are necessary for a resolution of this claim. During the course of its charge, the trial court instructed the jury that sexual intercourse must be established beyond a reasonable doubt to justify a verdict of guilty on the charge of sexual assault in the second degree. “Insofar as it is relevant to this case, the term ‘sexual intercourse’ means vaginal intercourse or fellatio between persons. The word ‘fellatio’ comes from the Latin. It means oral stimulation of the penis. Penetration, however slight, is sufficient to complete sexual intercourse and does not require emission of semen.”

The trial court further instructed the jury that sexual intercourse with another person must be established beyond a reasonable doubt in order to justify a verdict of guilty on the charge of sexual assault in the first degree. “As it’s relevant here, sexual intercourse means fellatio between persons, certainly includes—perhaps is a better word—fellatio. Penetration, however slight, is sufficient to complete sexual intercourse and does not require emission of semen.”

“[T]he standard of review to be applied to the defendant’s constitutional claim is whether it is reasonably possible that the jury was misled. ... In determining whether it was indeed reasonably possible that the jury was misled by the trial court’s instructions, the charge to the jury is not to be critically dissected for the purpose of discovering possible inaccuracies of statement, but it is to be considered rather as to its probable effect upon the jury in guiding them to a correct verdict in the case. . . . The charge is to be read as a whole and individual instructions are not to be judged in artificial isolation from the overall charge. . . . The test to be applied to any part of a charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” (Citations omitted; internal quotation marks omitted.) State v. Prioleau, 235 Conn. 274, 284, 664 A.2d 743 (1995).

The defendant is correct that the trial court did not specifically utter the words “penetration is necessary to complete fellatio.” The trial court did, however, repeatedly instruct the jury that (1) sexual intercourse is an essential element of sexual assault, (2) sexual intercourse means fellatio, and (3) penetration, however slight, is necessary to complete sexual intercourse. Our review of the charge as a whole leads us to conclude that the trial court adequately informed the jury that penetration was required to complete fellatio and thus presented the case to the jury so that no injustice resulted.

IV

The defendant next claims that, in light of evidence proffered at trial that the defendant inserted his finger into the victim’s vagina, and the fact that no claim of digital vaginal penetration was alleged in the final long form information used in the prosecution of the defendant, the trial court improperly charged the jury by reading the statutory definition of sexual intercourse, including the last sentence of the definition, which provides that “penetration may be committed by an object manipulated . . . into the genital . . . opening of the victim’s body.” General Statutes § 53a-65 (2). The defendant argues that the trial court’s reading of the last sentence of the statute constituted prejudicial surprise in that it “placed a new assault ‘in play’ for the first time,” thereby expanding “the information to allege a new, separate and distinct crime.” The defendant further argues that the trial court’s reading of the last sentence of the statutory definition of sexual intercourse violated his state and federal due process rights to be informed of the charges against him. We disagree.

The defendant concedes that this issue was not properly preserved at trial. The defendant again claims entitlement to review of this unpreserved claim pursuant to the doctrine of State v. Golding, supra, 213 Conn. 233. We also note that the evidence regarding the digital vaginal penetration was not objected to at trial, nor was it the subject of a motion to strike.

The amended long form information charges the defendant with sexual assault in the first and second degrees and attempted sexual assault in the second degree in violation of §§ 53a-71 (a) (l), 53-70 (a) (2) and 53a-49 (a) (2). “The fact that the information was in long form and cited . . . provision[s] in the General Statutes pertaining generically to . . . sexual intercourse afforded the defendant constitutionally adequate notice of the possibility that the trial court could ultimately incorporate the . . . statutory definition of sexual intercourse in its charge to the jury.” State v. Milardo, 224 Conn. 397, 414-15, 618 A.2d 1347 (1993). The defendant “was clearly afforded notice of the offense with which he was charged and his defense suffered no prejudice because of the trial court’s reading of the [statutory] definition of sexual intercourse. Where the defendant can demonstrate neither unfair surprise nor prejudice, he cannot claim an infringement of his constitutional right to fair notice of the crimes with which he is charged . . . .” Id., 414.

We conclude that the trial court’s instructing the jury on the statutory definition of sexual intercourse did not, in the circumstances of this case, violate the defendant’s constitutional right to be informed of the charges against him, and thus the defendant has failed to satisfy the third prong of Golding.

V

Finally, the defendant asserts that the trial court improperly instructed the jury on the charge of risk of injury to a child by stating that “[t]he deliberate touching of the private parts of a child under the age of sixteen in a sexual and indecent manner is violative of [§ 53-21],” The defendant claims that this erroneous jury instruction deprived him of his due process rights by lessening the state’s burden to prove each and every element of the charged offense beyond a reasonable doubt. We are unpersuaded.

Although the state’s request to charge contained similar language, the defendant failed to file a request of his own nor did he except to the charge as given. Thus, the defendant seeks review of this unpreserved claim under the doctrine of State v. Golding, supra, 213 Conn. 239-40.

In State v. Schriver, 207 Conn. 456, 542 A.2d 686 (1988), our Supreme Court examined the constitutionality of § 53-21. The Supreme Court held that, on its face, § 53-21 fails to articulate a definite standard for determining whether the conduct of a defendant is likely to impair the morals of a minor. Id., 461. The extensive judicial gloss on the language of the statute in State v. Pickering, 180 Conn. 54, 428 A.2d 322 (1980), however, made it clear “ ‘that the deliberate touching of the private parts of a child under the age of sixteen in a sexual and indecent manner is violative of [§ 53-21].’ ” State v. Schriver, supra, 463. Our Supreme Court further concluded that Pickering defines the confines of § 53-21 and “furnishes the standard by which to test whether the defendant has violated § 53-21 . . . .” Id., 463.

Here, the trial court instructed the jury on the charge of risk of injury to a child by quoting the actual language of § 53-21 in conjunction with the authoritative judicial gloss of Pickering. See id. As our Supreme Court has held that Pickering both establishes the boundaries of § 53-21 and furnishes the standard by which to test whether the defendant has violated § 53-21, we conclude that the trial court’s instructions did not violate the defendant’s constitutional right to due process, and thus the defendant has failed to satisfy the third prong of Golding.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes 8 53a-71 (a) provides in pertinent part: “A person is guilty of sexual assault in the second degree when such person engages in sexual intercourse with another person and: (1) Such other person is thirteen years of age or older but under sixteen years of age and the actor is more than two years older than such person . . .

       General Statutes § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured or its morals are likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       General Statutes § 53a-49 (a) provides in pertinent part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he ... (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned 1o culminate in his commission of the crime.”

       General Statutes 8 53a-70 (a) provides in pertinent part: “A person is guilty of sexual assault in the first degree when such person . . . (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . .

       The victim repeated second grade, which explains why she was eleven years of age in the fourth grade.

       “The first two conditions [of Golding] are determinations of whether a defendant's claim will be reviewed, and the third condition involves a review of the claim itself.” State v. Graham, 33 Conn. App. 432, 442, 636 A.2d 852, cert. denied, 229 Conn. 906, 640 A.2d 117 (1994).

       Regarding the spring, 1990 incident, the victim testified as follows:
      “Victim: He asked me to give him a blow. ... He made me put my mouth on his penis. . . .
      "Prosecutor: Now you indicated that he put his penis in your mouth?
      "Victim: Yes.
      “Prosecutor: What did he do then?
      “Victim: He started pushing my head on to it. . . . Pushing my head back and forth. . . .”
      The victim testified that in November or December of 1992, the defendant again asked her “to give him oral sex,” and she gave him oral sex.
      As to the May, 1993 incident in the parking lot, the victim testified on direct examination as follows:

        “Victim: We were sitting in the car and he asked me to have oral sex with him again. And he said this would be the last time.
      “Prosecutor: Now, you said he aslced you to have oral sex. I mean was he using that term, oral sex?
      “Victim: No.
      “Prosecutor: What’s he saying?
      “Victim: He asked me to give him a blow.
      “Prosecutor: And what happened. . .
      “Victim: I . . . had oral sex with him. ... I put my mouth on his penis and then he started pushing my head up and down. . . .”

       Regarding the spring, 1990 sexual assault incident, the victim testified in relevant part:
      “Victim: [H]e came in my mouth. And then I went and spit it out and then I started getting sick.
      “Prosecutor: Now, you say he came in—came in your mouth.
      “Victim: Yeah.
      “Prosecutor: You mean he ejaculated?
      “Victim: Yes.
      “Prosecutor: And after he did that, what did you do?
      “Victim: I went into the bathroom and then I started getting sick. ... I was throwing up.”
      With regard to the November or December, 1992 sexual assault incident, the victim testified in relevant part: “I gave him oral—He—He—I had to give him oral sex. And then after that he came in my mouth and then I got sick again.”

       See footnote 6.

       General Statutes § 53a-65 (2) provides: “ ‘Sexual intercourse’ means vaginal intercourse, anal intercourse, fellatio or cunnilingus between persons regardless of sex. Its meaning is limited to persons not married to each other. Penetration however slight, is sufficient to complete vaginal intercourse, anal intercourse or fellatio and does not require emission of semen. Penetration may be committed by an object manipulated by the actor into the genital or anal opening of the victim’s body.”

       See footnote 6.

       See footnote 1.

       See footnote 4.

       See footnote 3.

       The third prong of Golding states: “[T]he alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial . . . .” State v. Golding, supra, 213 Conn. 240.

       See footnote 2.

       See footnote 6.

       See footnote 15.


author: PER CURIAM.

text:
    CITY OF HARTFORD v. LOCAL 1716, COUNCIL 4, AFSCME, AFL-CIO
    (15649)
    Foti, Laveiy and Cretella, Js.
    Argued November 4
    officially released December 24, 1996

      J. William Gagne, Jr., for the appellant (defendant).

      Karen K. Buffin, assistant corporation counsel, with whom, on the brief, was Kevin G. Dubay, corporation counsel, for the appellee (plaintiff).
   PER CURIAM.

The defendant union appeals from the judgment of the trial court vacating an arbitration award that had been rendered by the state board of mediation and arbitration (board). The defendant claims that there was insufficient evidence to prove (1) misconduct by the board, (2) prejudice to the plaintiff, (3) that one of the arbitrators imperfectly exercised her powers, and (4) that the award was untimely under General Statutes § 31-98. We affirm the judgment of the trial court.

Our examination of the record and briefs of the parties persuades us that the judgment of the trial court should be affirmed. In its comprehensive memorandum of decision, the trial court analyzed the law in a manner consistent with a proper interpretation of General Statutes § 52-418 and consistent with case precedent relating to the confirmation or vacating of arbitration awards. See O & G/O’Connell Joint Venture v. Chase Family Ltd. Partnership No. 3,203 Conn. 133, 523 A.2d 1271 (1987).

The trial court’s memorandum of decision; Hartford v. Local 1716, Council 4, AFSCME, 44 Conn. Sup. 312, 688 A.2d 882 (1996), addresses all of the arguments raised in this appeal, and we adopt that well reasoned decision as a statement of the applicable law on these issues.

The judgment is affirmed.