author: HARPER, J.

text:
    RONALD HOLLISTER v. EDNA THOMAS ET AL. RONALD HOLLISTER v. ACTION CONSTRUCTION, INC.
    (AC 28821)
    Flynn, C. J., and Harper and Beach, Js.

      Argued April 28
    officially released October 7, 2008

      Sandra L. Snaden, with whom, on the brief, was Hope C. Seeley, for the appellant (plaintiff).

      J. Kevin Golger, for the appellee (named defendant in the first case).

      Karen K. Clark, with whom, on the brief, was Frank G. Usseglio, for the appellees (defendant Stanley Brown in the first case and defendant in the second case).
   Opinion

HARPER, J.

In this consolidated personal injury action, the plaintiff, Ronald Hollister, appeals from the judgments of the trial court rendered in favor of the defendants Edna Thomas, Stanley Brown and Action Construction, Inc., after the court granted the defendants’ motions to strike portions of the plaintiffs complaints. On appeal, the plaintiff claims that the court improperly struck portions of his fourth amended complaint. We affirm the judgments of the trial court.

In his fourth amended complaint, dated January 3, 2007, the plaintiff alleged the following facts, which are relevant to our discussion of the issue on appeal. On January, 7, 2005, the plaintiff, a firefighter for the city of Danbury, was dispatched to a condominium at 14 Skrepo Road in Danbury, where a fire had been reported. That residence was owned and occupied by Thomas. At the time of the fire, Thomas was in the process of remodeling her bathroom. She had hired Brown, a licensed plumbing contractor, to perform the renovation. Brown agreed to perform the plumbing and pipe installation work associated with the project and subcontracted the tile work and other remodeling aspects of the project to his agent, Thomas Janesky. During the course of the renovation, some pipe valves unexpectedly leaked, and a flooding hazard arose. Rather than perform the plumbing repair work himself, however, Brown delegated it to Janesky. Thereafter, following Brown’s instructions, either Adam Janesky or Thomas Janesky used a plumber’s torch to repair some pipes and thereby ignited the January 7, 2005 fire to which the plaintiff responded.

After the fire began, rather than immediately calling for emergency services, Thomas delayed calling for help because she did not want the authorities to discover that she had failed to obtain permits for the remodeling project. Thomas also was concerned because she had an illegal structure in her condominium. Additionally, neither Adam Janesky nor Thomas Janesky immediately reported the fire. When the Danbury fire department did arrive, the fire had reached an advanced state, and an immediate physical danger was present to persons on the roof of the building. Seeing that danger, the plaintiff jumped from the fire truck and injured his knee. The plaintiff required surgery to treat his knee, and his injury likely is permanent in nature.

In his January 3, 2007 complaint, the plaintiff alleged, inter alia, negligence and recklessness on the part of Thomas, Adam Janesky and Thomas Janesky, and negligence on the part of Brown. In response to the plaintiffs complaint, Thomas filed a motion to strike the counts of the complaint that pertained to her. Likewise, Brown filed a motion to strike the counts of the complaint that pertained to him. On April 3, 2007, the court, Radcliffe, J., issued a memorandum of decision in which it granted each defendant’s motion to strike. As to Thomas, the court found that she did not owe a duty of care to the plaintiff. It noted that the allegations as to her were “too remote, as a matter of law, to be a substantial factor causing injury to the firefighter.” The court further found that even if the injuries were foreseeable, public policy considerations barred any liability on the part of Thomas. As to Brown, the court adopted the reasoning set out by the court, Rodriguez, J., in its memorandum of decision granting the motion filed by Brown and Action Plumbing & Heating, Inc., to strike the counts contained in the amended complaint of January, 2006. The court, in that decision, reasoned that no relationship existed between Brown and either the Janeskys or Thomas such that a duty of care was created that would extend to the plaintiff. In its April 3, 2007 decision, the court also found that any additional allegations in the plaintiffs fourth amended complaint as to an agency relationship between Brown and the Janeskys did not cure the deficiencies contained in the earlier complaint. Following the court’s April 3, 2007 decision, Thomas, Brown and Action Plumbing & Heating, Inc., filed motions for judgment, which were granted by the court, Matasavage, J., on April 30, 2007. This appeal followed.

We begin by setting forth the legal principles that govern our review. “A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court’s ruling is plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. ... It is fundamental that in determining the sufficiency of a complaint challenged by a defendant’s motion to strike, all well-pleaded facts and those facts necessarily implied from the allegations are taken as admitted.” (Citation omitted; internal quotation marks omitted.) Doe v. Board of Education, 76 Conn. App. 296, 299-300, 819 A.2d 289 (2003).

The plaintiff claims that the court improperly struck the counts of his complaint that pertained to the conduct of Thomas and Brown. As to both Brown and Thomas, the plaintiff argues that the court improperly concluded that they did not owe a duty of care to the plaintiff. The plaintiff further argues that Brown was liable for the actions of Thomas Janesky under a theory of vicarious liability and that Brown was liable under a theory of negligence per se. We are not persuaded by any of the plaintiffs arguments.

I

We first address the plaintiffs argument as to the appropriate duty of care. Specifically, as to Brown, the plaintiff maintains that Brown owed a duty of care to the plaintiff to refrain from instructing unqualified individuals to perform plumbing work that could start a fire. As to Thomas, the plaintiff argues that she owed him a duty of care both to report the fire promptly once it began and to refrain from hiring unqualified and untrained individuals to perform repairs in her home. “The existence of a duty of care is a prerequisite to a finding of negligence.” Gomes v. Commercial Union Ins. Co., 258 Conn. 603, 614, 783 A.2d 462 (2001). “The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand.” (Internal quotation marks omitted.) Mendillo v. Board of Education, 246 Conn. 456, 483, 717 A.2d 1177 (1998). “If a court determines, as a matter of law, that a defendant owes no duty to a plaintiff, the plaintiff cannot recover in negligence from the defendant.” RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384-85, 650 A.2d 153 (1994).

Our Supreme Court has stated that “the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case.” (Internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 572, 717 A.2d 215 (1998).

“Our first step in an analysis of whether a duty exists and the extent of the defendants’] duty ... is to determine the foreseeability of the plaintiffs’] injury . . . .” (Internal quotation marks omitted.) Id. It is a well established tenet of our tort jurisprudence, however, that “[d]ue care does not require that one guard against eventualities which at best are too remote to be reasonably foreseeable. See Palsgraf v. Long Island R. Co., 248 N.Y. 339, 345, 162 N.E. 99 [1928] .... [A] defendant [is] not required to take precautions against hazards [that are] too remote to be reasonably foreseeable. . . . Due care is always predicated on the existing circumstances.” (Citations omitted; internal quotation marks omitted.) Lodge v. Arett Sales Corp., supra, 246 Conn. 575.

We conclude that the plaintiffs injuries were not a reasonably foreseeable consequence of the actions of either Brown or Thomas. Our Supreme Court’s decision in Lodge is helpful to our resolution of the plaintiffs claim. In Lodge, the plaintiffs were firefighters who were injured and the estates of firefighters who were killed in a collision that occurred while the firefighters were responding to a false alarm transmitted by the defendant companies. Id., 567-70. The collision directly was caused by a brake failure in the fire engine while the firefighters were en route to the location of the false alarm. Id. The court observed that “[i]t is impractical, if not impossible, to separate the question of duty from an analysis of the cause of the harm when the duty is asserted against one who is not the direct cause of the harm.” Id., 574. It then concluded that “[notwithstanding the retrospective foreseeability of the possibility of the engine’s brake failure . . . the harm suffered by the plaintiffs qualifies under the category of an unforeseeable consequence. Liability may not be imposed merely because it might have been foreseeable that some accident could have occurred; rather, liability attaches only for reasonably foreseeable consequences. ... In every case in which a defendant’s negligent conduct may be remotely related to a plaintiffs harm, the courts must draw a line, beyond which the law will not impose legal liability. Although that line is often amorphous and difficult to discern, we conclude that it has been crossed in this case.” (Citations omitted.) Id., 577-78.

Our Supreme Court likewise reached its conclusion in Lodge on the basis of public policy concerns favoring limited liability under such circumstances. “The potential benefit achieved from the imposition of liability in this case is limited to providing recovery for the plaintiffs from one other than the principal tortfeasor. The plaintiffs have already been compensated for their injuries by the city, as their employer, for injuries sustained in the course of their employment. The fact that the plaintiffs’ recovery against the defendants would exceed that which would be available as workers’ compensation benefits cannot justify the imposition of liability for an accident that was not a reasonably foreseeable consequence of the defendants’ negligent conduct. We have concluded that the public [rather than individual defendants] should compensate its safety officers both in pay that reflects the hazard of their work and in workers’ compensation benefits for injuries suffered when the risks inherent in the occupation materialize. . . . Because firefighters knowingly engage in a dangerous occupation, we have concluded that they are owed only the limited duty owed to licensees by landowners upon whose property they sustain injury in the course of performing their duty. . . . The policies supporting the application of a narrow scope of duty owed by individual landowners to firefighters counsels us to conclude that it would be inappropriate to establish a broad scope of duty owed by these defendants to guard against unforeseen consequences. It would be irrational to conclude that firefighters are owed a greater duty by individual members of the public while they are en route to the scene of an emergency than when they arrive at the scene. The plaintiffs have been compensated for their risk by society as a whole by way of workers’ compensation as well as other statutory benefits provided to injured firefighters. See General Statutes §§ 7-432 and 7-433b (providing disability and death benefits in addition to workers’ compensation for firefighters injured in course of employment). To impose additional liability on the defendants under these circumstances would impose an undue burden on individual members of the public.” (Citations omitted; internal quotation marks omitted.) Lodge v. Arett Sales Corp., supra, 246 Conn. 579-81.

Turning to the allegations as to Brown, like our Supreme Court in Lodge, we conclude that under the circumstances present in this case, the plaintiffs injury was not a reasonably foreseeable consequence of Brown’s conduct. First, it was not alleged that the fire itself caused the injury, but, rather, it was the fire’s advanced state that prompted the plaintiff to jump from the fire engine. A close reading of the fourth amended complaint reveals that the plaintiff jumped from the fire engine because the fire had reached an advanced state and that an “urgent situation” required the plaintiff and others to act with “greater haste” upon arriving at the scene. The advanced state of the fire, the plaintiff alleged, was caused by the failure of Thomas Janesky, Adam Janesky and Thomas to report it promptly. Therefore, implicit in the complaint is the understanding that if the fire had been reported promptly, the plaintiff would not have had to jump from the fire engine to respond but, rather, would have been able to employ a more measured response. Although it is alleged that Brown’s conduct certainly is related to the plaintiffs harm, as his advice to Thomas Janesky sparked the chain of events that led to the injury, the intervening delay in reporting the fire sufficiently removes the injury from the realm of reasonably foreseeable consequences as to Brown. Second, even if the delay in reporting had not been an intervening circumstance, Brown did not ignite the fire. He merely directed other, albeit, unqualified individuals to perform the plumbing work that ignited the fire. That fact alone significantly attenuates Brown’s conduct from the harm suffered. Last, the fact that the plaintiff sustained injuries after he jumped from the fire engine in an unorthodox and allegedly unsafe manner could not have been anticipated as a foreseeable consequence of Brown’s conduct.

As to Thomas, the harm suffered likewise was not a reasonably foreseeable consequence of her hiring of unqualified individuals to perform repair work at her condominium. Simply put, if Brown’s instruction to perform the plumbing work that caused the fire was too attenuated from the harm suffered to create a duty, Thomas’ act of hiring those individuals is even further removed from the harm suffered. With respect to her delay in reporting the fire, we have found no authority stating that a homeowner owes a duty of care to emergency personnel to report promptly a fire or any other emergency. As a matter of public policy, we additionally note that a finding of liability in response to a delay in reporting an emergency could deter an individual from reporting an emergency at all if that person thought that too much time had passed. As stated by the court, “[f]ear of a civil action should not deter a citizen from seeking aid in the event of a conflagration.”

Additionally, for reasons of public policy, neither Brown nor Thomas owed a duty of care to the plaintiff under these circumstances. As observed in Lodge, because the law imposes only limited liability on a homeowner once a firefighter has entered an individual’s property in response to an emergency, it would be illogical to conclude that firefighters are owed a greater duty by individual members of the public during the period of time in which they are responding to the emergency but before they have actually entered that property. See Lodge v. Arett Sales Corp., supra, 246 Conn. 580-81. On a more general level, our Supreme Court noted in the context of police officers that “[f]undamental concepts of justice prohibit a police officer from complaining of negligence in the creation of the very occasion for his engagement. . . . This fundamental concept rests on the assumption that governmental entities employ firefighters and police officers, at least in part, to deal with the hazards that may result from their taxpayers’ own future acts of negligence. Exposing the negligent taxpayer to liability for having summoned the police would impose upon him multiple burdens for that protection.” (Internal quotation marks omitted.) Kaminski v. Fairfield, 216 Conn. 29, 38-39, 578 A.2d 1048 (1990). For all of the foregoing reasons, we conclude that the plaintiffs fourth amended complaint failed to allege a duty of care on the part of either Brown or Thomas.

In reaching this conclusion, we note that this court, as well as our Supreme Court, has reached similar results when presented with situations in which the harm suffered is attenuated significantly from the conduct of a third party tortfeasor. In Gomes v. Commercial Union Ins. Co., supra, 258 Conn. 603, our Supreme Court held that there was no duty on the part of a hotel desk clerk, who, after telling a hotel guest that she would report fire caused by arsonists at a neighboring gasoline station, failed to do so. The court concluded that “[t]he attenuation between the hotel defendants’ conduct and the plaintiffs’ harm is too remote, as a matter of public policy, to impose a duty.” Id., 616-17; see also RK Constructors, Inc. v. Fusco Corp., supra, 231 Conn. 388 (affirming trial court’s striking of plaintiffs complaint as to defendant contractor when construction accident caused injury to plaintiffs employee, thereby raising plaintiffs workers’ compensation premiums, because “the nexus between [the harm] and the plaintiff and its lost profits is simply too tenuous to impose liability for such collateral consequences”); Demers v. Rosa, 102 Conn. App. 497, 500-506, 925 A.2d 1165 (when plaintiff police officer fell and injured himself on icy driveway after having responded to call regarding roaming dog, harm that befell plaintiff not reasonably foreseeable as matter of law as to defendant dog owner), cert. denied, 284 Conn. 907, 931 A.2d 262 (2007).

II

We next address the plaintiffs claim that the court improperly struck the counts of the complaint pertaining to Brown because it failed to adopt the argument that Brown was liable for the actions of Thomas Janesky under a theory of vicarious liability. Specifically, the plaintiff maintains that Thomas Janesky performed the plumbing work as Brown’s agent, thereby rendering Brown vicariously liable for the actions of Thomas Janesky in igniting the fire that caused the plaintiffs injury. We conclude that the plaintiffs fourth complaint fails to state a claim of agency between Thomas Janesky and Brown.

Our Supreme Court set forth the basic principles for determining the existence of an agency relationship in Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 543, 893 A.2d 389 (2006). “Under § 1 of 1 Restatement (Second) of Agency (1958), [a]gency is defined as the fiduciary relationship which results from manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act .... Thus, the three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking. . . . The existence of an agency relationship is a question of fact. . . . Some of the factors listed by the Second Restatement of Agency in assessing whether such a relationship exists include: whether the alleged principal has the right to direct and control the work of the agent; whether the agent is engaged in a distinct occupation; whether the principal or the agent supplies the instrumentalities, tools, and the place of work; and the method of paying the agent. ... In addition, [a]n essential ingredient of agency is that the agent is doing something at the behest and for the benefit of the principal. . . . Finally, the labels used by the parties in referring to their relationship are not determinative; rather, a court must look to the operative terms of then-agreement or understanding.” (Internal quotation marks omitted.) Id., 543-44.

Although the plaintiffs complaint alleged that Thomas Janesky acted as Brown’s agent, the complaint failed to allege the facts necessary to prove the existence of such a relationship. For example, there was no allegation that Brown had the right to control the work of Thomas Janesky. Rather, the fourth amended complaint alleged that Brown “instructed” Thomas Janesky that “the work was not that difficult for him to proceed with” and “directed him to carry out certain plumbing and piping installation responsibilities in accordance with that instruction.” A mere direction to perform a task does not imply control over the performance of that task. Likewise, the plaintiffs allegation that Brown “maintained control and responsibility for the plumbing and piping installation work” does not allege a right to control the work of Thomas Janesky.

Further, there were scant facts alleged that elaborate on the relationship between Thomas Janesky and Brown other than the use of the labels “agent” and “subcontractor.” As stated, “the labels used by the parties in referring to their relationship ar e not determinative; rather, a court must look to the operative terms of their agreement or understanding.” (Internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., supra, 277 Conn. 543-44. The operative complaint as to Brown was the plaintiffs fourth amended complaint; the plaintiff availed himself of several opportunities to amend his pleadings. It is telling that throughout the course of those pleadings, the plaintiff did not take advantage of those opportunities to allege further facts delineating the alleged agency relationship between Brown and Thomas Janesky. Accordingly, we conclude, as a matter of law, that the plaintiff failed to allege an agency relationship between Brown and Thomas Janesky.

Ill

The plaintiff finally claims that the court improperly struck the counts of the complaint pertaining to Brown because the court failed to find that the complaint alleged negligence per se. Specifically, the plaintiff asserts that Brown’s instruction to Thomas Janesky to perform plumbing work was negligent per se because Brown knew that Thomas Janesky was unlicensed and that plumbing and piping installation work is a regulated trade requiring licensure pursuant to General Statutes § 20-330 et seq. We decline to review this claim.

As noted by the plaintiff in his brief, the court’s April 3, 2007 memorandum of decision did not address the issue of negligence per se on the part of Brown. Because it is the duty of the appellant to provide this court with a record adequate for review, it was the plaintiffs responsibility to seek an articulation from the court as to this issue. “It is well established that [i]t is the appellant’s burden to provide an adequate record for review. ... It is, therefore, the responsibility of the appellant to move for an articulation or rectification of the record where the trial court has failed to state the basis of a decision ... to clarify the legal basis of a ruling ... or to ask the trial judge to rule on an overlooked matter. ... In the absence of any such attempts, we decline to review this issue.” (Internal quotation marks omitted.) Ravetto v. Triton Thalassic Technologies, Inc., 285 Conn. 716, 743 n.11, 941 A.2d 309 (2008); see also Practice Book §§ 60-5 and 66-5. Because this court “may not surmise or speculate as to the reasons why the trial court granted the motion to strike”; (internal quotation marks omitted) Conforti v. Christie, 59 Conn. App. 280, 281, 756 A.2d 330, cert. denied, 254 Conn. 942, 761 A.2d 759 (2000); we decline to reach the issue of whether the court acted properly as to the plaintiffs claim of negligence per se.

The judgments are affirmed.

In this opinion the other judges concurred.

       The complaint also named “Stanley Brown, d/b/a Action Plumbing & Heating” as a defendant. “[I]t appears well settled that the use of a fictitious or assumed business name does not create a separate legal entity . . . [and that] [t]he designation [doing business as] ... is merely descriptive of the person or corporation who does business under some other name .... [I]t signifies that the individual is the owner and operator of the business whose trade name follows his, and makes him personally liable for the torts and contracts of the business . . . .” (Internal quotation marks omitted.) Monti v. Wenkert, 287 Conn. 101, 135, 947 A.2d 261 (2008).

       The plaintiff brought two separate actions arising from the facts set forth in this opinion. One action was brought against Thomas, Adam Janesky, Thomas Janesky, Brown and Action Plumbing & Heating. The second action was brought against Action Construction, Inc. By agreement of the parties, the cases were consolidated by the court, Mintz, J., on April 2,2007. Thomas Janesky and Adam Janesky were named as defendants but are not parties to this appeal. The portions of the complaint that pertain to them still are pending. We also note that the city of Danbury requested permission to join the first action as an intervening plaintiff for workers’ compensation purposes. That motion was granted by the court on April 11, 2006. The city is not a party to this appeal.

       As previously noted herein, the plaintiff originally commenced two separate actions against the various defendants, with the matters consolidated thereafter. See footnote 2. The plaintiff, however, did not file an amended complaint combining the causes of action against the defendants, and, consequently, there are two sets of operative complaints and two separate judgments. The judgment as to the plaintiffs January 3, 2007 fourth amended complaint naming Thomas, Brown and Action Plumbing & Heating, is addressed in this opinion. The plaintiffs complaint against Action Construction, Inc., mirrors the counts in the January 3, 2007 complaint as to Brown and Action Plumbing & Heating. Following consolidation, the parties agreed that the court’s ruling as to the motions to strike filed by Brown, Thomas and Action Plumbing & Heating, likewise would apply to the motion to strike filed by Action Construction, Inc. As a result of that agreement, the court, Matasavage, J., also rendered judgment in favor of Action Construction, Inc., on April 30, 2007.
      Brown’s actions that formed the basis of the allegations against him in the first case were also attributed to Action Construction, Inc., in the second action. Our discussion of the claims against Brown is dispositive of the plaintiffs appeal in the second action.

       In Ms appellate brief, Brown argues that the plaintiff waived Ms right to challenge the court’s granting of his motion to strike because the plaintiff failed to “materially change or supplement the negligence allegations in his fourth amended complaint from the allegations contained in Ms previously stricken amended complaint . . . .” See Parsons v. United Technologies Corp., 243 Conn. 66, 74, 700 A.2d 655 (1997). Because “[t]he interpretation of pleadings is always a question of law for the court . . . interpretation of the pleadings therefore is plenary.” (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 573 n.12, 864 A.2d 1 (2005). Our review of the pleadings reveals that the plaintiffs fourth amended complaint contains sufficient further allegations such that he has not waived Ms right to challenge the court’s granting of the defendants’ motions to strike.

       In Furstein v. Hill, 218 Conn. 610, 615-16, 590 A.2d 939 (1991), our Supreme Court analyzed the firefighter rule, which gives a firefighter the status of a licensee in a personal injury action against a landowner for harm sustained during the course of duty. The firefighter rule is not directly applicable in this case because it does not involve an issue of premises liability. See Levandoski v. Cone, 267 Conn. 651, 661, 841 A.2d 208 (2004) (declining to extend firefighter rule beyond scope of premises liability). Even though the rule likewise was not applicable in Lodge, that court nevertheless observed that “[i]ts rationale is . . . instructive for understanding the policy issues relevant to compensation of firefighters injured in the line of duty. We concluded that limited liability was appropriate in Furstein v. Hill, supra, 615, and Roberts v. Rosenblatt, 146 Conn. 110, 112-13, 148 A.2d 142 (1959), because (1) the nature of a firefighter’s work is inherently hazardous and the choice of that occupation is akin to assumption of the risk, and (2) firefighters are adequately compensated for the job they perform and are able to recover workers’ compensation for injuries sustained in the course of their employment. Furstein v. Hill, supra, 617-20. Both of these public policy considerations are equally relevant to the question [presented in this case.]” Lodge v. Arett Sales Corp., supra, 246 Conn. 580 n.12.


source: Caselaw Access Project

author: BEACH, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. TANIA THOMAS
    (AC 27797)
    Gruendel, Beach and Pellegrino, Js.

      Argued May 19
    officially released October 7, 2008

      Darcy McGraw, special public defender, for the appellant (defendant).

      Christopher T. Godialis, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Christian M. Watson, assistant state’s attorney, for the appellee (state).
   Opinion

BEACH, J.

The defendant, Tania Thomas, appeals from the judgment of conviction, rendered after a jury trial, of assault in the first degree in violation of General Statutes § 53a-59 (a) (2) and assault in the third degree in violation of General Statutes § 53a-61 (a) (l). On appeal, the defendant claims that the trial court improperly precluded her from presenting relevant evidence and cross-examining witnesses. She further claims that the state engaged in prosecutorial impropriety in its questioning of two witnesses and that the evidence was insufficient to sustain her conviction of assault in the third degree. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the early evening of November 4, 2005, Jessica Wilson parked her white Nissan Maxima on the curb of Woodard Drive in Bristol, in front of the house of Jonathan Ortiz, the brother of her boyfriend, Moussay Ortiz. The defendant, who also was involved romantically with Moussay Ortiz, was already at the residence on Woodard Drive. Shortly after Wilson’s arrival at the Woodard Drive house, Wilson and the defendant engaged in a physical altercation. After both Wilson and the defendant had left Woodard Drive in separate vehicles, they engaged in another altercation in front of a children’s museum in Bristol. The defendant sustained some scratches to her face and body and a laceration to her leg during the altercations, and Wilson sustained serious injuries to her face and scalp that required extensive medical treatment. Following the incidents, police obtained voluntary written statements from both Wilson and the defendant.

On February 14, 2006, the state filed an amended information charging the defendant with assault in the first, second and third degrees. A trial to the jury was held over three days at which Wilson, Jonathan Ortiz, Moussay Ortiz and the defendant testified about the physical altercation that occurred between Wilson and the defendant. Two treating nurses and a plastic surgeon also testified regarding the injuries Wilson had sustained in the fight. Much of the testimony adduced at trial as to the details of the altercations was disputed. Nevertheless, both women admitted at trial that they had fought numerous times over the course of the several months preceding November 4, 2005, and both admitted that they had been arrested for that activity.

Regarding the altercation on Woodard Drive, Wilson testified that she went to Jonathan Ortiz’ house to speak with him about repairing her car and that only after she parked her vehicle did she see that the defendant was at the house. She further testified that shortly after she parked her vehicle, the defendant “came and she swung at me,” and engaged her in a fight. The defendant, on the other hand, testified that after Wilson had arrived at the house, Wilson screamed obscenities at her, spat at her and instigated the physical altercation. Jonathan Ortiz testified that he saw Wilson drive past the house once, while the defendant was outside engaged with him in conversation, before returning and parking in front of the curb. He further testified that Wilson exited her car and began arguing with the defendant. Specifically, he testified that “she ran over to [the defendant] and spat on her and began hitting her [and that she] ran up to her and attacked her.” Following the fight, Jonathan Ortiz testified, Wilson and the defendant “were both covered in blood.”

As to the altercation near the children’s museum, Wilson testified that after she left Woodard Drive, she was traveling to a friend’s house and that along the way she picked up Moussay Ortiz, who sat in the passenger seat. The defendant testified that she was in the area of the children’s museum to use a local automated teller machine when she saw Wilson and Moussay Ortiz in Wilson’s vehicle. On the street just beyond the entrance to the museum, the defendant stopped her vehicle alongside the curb, and immediately thereafter, Wilson stopped her car next to that of the defendant. The defendant then got out of her car and leaned into the passenger side window of Wilson’s vehicle. A bystander who was near the entrance to the museum testified that she could hear yelling and that she saw arms flailing. The bystander then testified that “[w]e saw the white car start to take off. The girl that was hanging out of the white car got pinned between her door and the white car. . . . And so the white car sped off with the girl hanging out of it and then turned the comer . . . .”

Wilson testified that after the defendant came through the passenger side window, the defendant fought with Moussay Ortiz and pulled Wilson’s hair. The defendant testified that she did not fight with Wilson in the car but rather attempted to retrieve her house keys from Moussay Ortiz. Shortly following the confrontation, the defendant was transported to a hospital in an ambulance. Wilson testified that she drove to a friend’s house and that her friend had another person drive her to the hospital.

Once at the hospital, Wilson was treated for several injuries, the most serious of which was a partial amputation of her nose caused by a human bite. A nurse who treated Wilson testified that “[s]he came in with facial trauma from an assault. . . . She was missing—a large piece of her nose was avulsed. It was completely off. She had facial lacerations, scalp lacerations and a laceration behind her ear.” Wilson’s plastic surgeon also testified at trial that Wilson had undergone surgery to reconstruct the right side of her nose and that she would require further surgery to complete the reconstruction.

On February 17, 2006, the jury returned a verdict of guilty on all counts charged. The defendant was sentenced on April 18, 2006, to a total effective term of ten years incarceration, suspended after two years, and five years probation. This appeal followed. Additional facts will be set forth as necessary.

I

The defendant first claims that the court violated her constitutional right to present a defense when it precluded her from presenting evidence that Wilson had a motive to act as the aggressor. The defendant maintains that the exclusion of this evidence was harmful because it was material to her claim of self-defense. We agree that the exclusion of the evidence was improper but conclude that the error was harmless.

The following additional facts are relevant to our discussion of the defendant’s claim. During its case-in-chief, the state called Wilson to testify. The state then elicited testimony from Wilson that she had lied in her statement to police about where the altercations had occurred. In her statement, Wilson maintained that the fight had occurred in front of the children’s museum; she made no mention of the incidents occurring at Woodard Drive. On both direct and cross-examination, Wilson explained that she had lied to avoid arrest.

Thereafter, defense counsel inquired in cross-examination of Wilson if she had any children. Wilson responded that she has one child who is six years old. Later in the cross-examination, defense counsel asked her if she had custody of a child named Evelyn. The state objected on the ground that the question was beyond the scope of direct examination, and the court agreed. Defense counsel then asked Wilson if she had “ever heard of Isabelle Wilson.” Wilson responded that “[t]here is no Isabelle Wilson.” The state again objected, and the court sustained its objection.

Immediately following the objection and outside of the presence of the jury, defense counsel argued that the line of inquiry was relevant to Wilson’s credibility. He asserted that Wilson had lied under oath about how many children she had and that the defense had information to believe that one of Wilson’s children may have been sold for drug money. The state objected to the inquiry on the ground of relevance, and the court sustained the state’s objection.

On the third day of trial, after the state had rested its case, defense counsel asked the court to recall Wilson as a witness. At that point, outside of the presence of the jury, the state requested a proffer as to “why he is recalling her when he could have asked her these questions on cross-examination.” The state further argued that any line of inquiry as to Wilson’s alleged “other child” should be excluded as irrelevant. Defense counsel maintained that the evidence was relevant to Wilson’s motive to instigate the altercations. Specifically, he stated: “I plan to present evidence that [Wilson’s] motive for . . . lying to the police about what had occurred ... on Woodard Drive is to silence my client because my client had spoken with [Wilson] with regard to this illegitimate child that she is denying. This whole motive is to quiet and to get revenge because my client has physical evidence of a child that [Wilson] had given birth to that may or may not be [Moussay Ortiz’] child. That’s the entire crux of this whole altercation. [It] [h]as to do with an illegitimate child that my client was trying to expose, and that’s the motive . . . for [Wilson’s] making up the testimony to try to get her behind bars for . . . revenge and to . . . silence her. It goes directly to . . . this [charge of] assault [in the first degree] and [Wilson’s] fabrication, which she admitted on the [witness] stand.” In response to the state’s claim that the line of inquiry was not relevant to the issue of self-defense, defense counsel asserted that “my defense is that [Wilson] attacked [the defendant] because of this information. This is the crux of the case here. This information is damaging ... if it comes to light, [it] is absolutely mind-blowing. We have . . . evidence of a child that she denied on the [witness] stand, which we believe is [Moussay Ortiz’] child, and which was the subject of numerous conversations between [the defendant] and [Wilson] and [Moussay Ortiz], and which is at the heart of this issue.” The defendant then made her offer of proof, which included a social security card for Isabelle Nora Wilson and a department of public health parent notice for Isabelle Nora Wilson. Defense counsel added that the defendant “had evidence of a baby . . . that she has information and belief was sold on the black market for money to a person who—we believe we have that person’s name as well.”

The court responded to the defendant’s arguments by noting that “motive is something that the jury will be instructed on. However, I do not frankly see the relevance of a love child, and I think the jury, when they get to their deliberations, will be instructed as to what to put the weight toward. And I don’t think, in light of the concerns I have about the rights of victims [that I will] allow a side show as to a love child.” Following a brief recess, the court sustained the state’s objection “basically, on the basis of relevancy . . . .” The court stated no other reason on which it based its decision.

We begin our analysis by setting forth the legal principles that govern our review. “As we recently observed, [a] defendant’s right to present a defense does not include a right to present evidence that properly is excluded under the rules of evidence. . . . The sixth amendment to the United States constitution require [s] that criminal defendants be afforded a meaningful opportunity to present a complete defense. . . . The defendant’s sixth amendment right, however, does not require the trial court to forgo completely restraints on the admissibility of evidence. . . . Generally, [a defendant] must comply with established rules of procedure and evidence in exercising his right to present a defense. ... A defendant, therefore, may introduce only relevant evidence, and, if the proffered evidence is not relevant, its exclusion is proper and the defendant’s right is not violated. . . .

“The standard of review we apply to a trial court’s evidentiary rulings is well settled. Such rulings are entitled to great deference. . . . The trial court is given broad latitude in ruling on the admissibility of evidence, and we will not disturb such a ruling unless it is shown that the ruling amounted to an abuse of discretion. . . . Even when a trial court’s evidentiary ruling is deemed to be improper, we must determine whether that ruling was so harmful as to require a new trial. ... In other words, an evidentiary ruling will result in a new trial only if the ruling was both wrong and harmful. ... In our review, we make every reasonable presumption in favor of upholding the trial court’s ruling. . . .

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . Evidence is relevant if it tends to make the existence or nonexistence of any other fact more probable or less probable than it would be without such evidence. ... To be relevant, the evidence need not exclude all other possibilities; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree. . . . The determination of whether a matter is relevant to a material issue rests within the sound discretion of the trial court.” (Internal quotation marks omitted.) State v. Abreu, 106 Conn. App. 278, 282-83, 941 A.2d 974, cert. denied, 286 Conn. 919, 946 A.2d 1249 (2008); see also State v. Cerreta, 260 Conn. 251, 260-61, 796 A.2d 1176 (2002).

We conclude that the court improperly excluded evidence relevant to Wilson’s alleged motive to attack the defendant. Because the defendant raised the defense of self-defense at trial, the determination of whether Wilson or the defendant was the initial aggressor was material. See General Statutes § 53a-19. Although the proffered evidence may have strained credulity, it tended to corroborate the defendant’s assertion that Wilson initially attacked her because it tended to show that Wilson had a motive to attack the defendant to prevent her from relaying information about Wilson’s child to Moussay Ortiz. “To be relevant, the evidence need not exclude all other possibilities; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree.” (Internal quotation marks omitted.) State v. Miller, 95 Conn. App. 362, 387-88, 896 A.2d 844, cert. denied, 279 Conn. 907, 901 A.2d 1228 (2006). The odd nature of the offer does not detract from its ability to support the conclusion for which it was offered. Accordingly, we conclude that the evidence was relevant and that its exclusion constituted an abuse of the court’s discretion.

Having reached that conclusion, we turn now to the question of whether the court’s improper exclusion of the evidence entitles the defendant to a new trial. The defendant claims that the impropriety is of a constitutional dimension, as it deprived her of her right to present a defense under the sixth and fourteenth amendments to the federal constitution. We disagree and conclude that the exclusion of the evidence in question did not deprive the defendant of her opportunity to present a complete defense. As noted, the defendant’s theory regarding Wilson’s alleged second child, if admitted, would have supported the defendant’s claim that Wilson was motivated to attack her. Any evidence tending to show that the defendant was not the initial aggressor would lend support to the defendant’s self-defense claim. Nevertheless, evidence was introduced at trial regarding Wilson’s motive to attack the defendant. For example, evidence was adduced that the two women were bitter rivals, that they had fought for the attentions of Moussay Ortiz and that they had been arrested several times for fighting with each other. Wilson acknowledged in her testimony that she previously had fought with the defendant and called her “a black bitch.” Because the theory in question provided at most merely one more motivation to attack, its exclusion did not foreclose an entire defense theory and, therefore, did not rise to the level of a constitutional violation.

“When an improper evidentiary ruling is not constitutional in nature, the defendant bears the burden of demonstrating that the error was harmful.” (Internal quotation marks omitted.) State v. Outlaw, 108 Conn. App. 772, 785, 949 A.2d 544, cert. denied, 289 Conn. 915, 957 A.2d 880 (2008). As our Supreme Court recently has noted, “a nonconstitutional error is harmless when an appellate court has a fair assurance that the error did not substantially affect the verdict. . . . [0]ur determination that the defendant was harmed by the trial court’s [evidentiary rulings] is guided by the various factors that we have articulated as relevant [to] the inquiry of evidentiary harmlessness . . . such as the importance of the [evidence] in the prosecution’s case, whether the [evidence] was cumulative, the presence or absence of evidence corroborating or contradicting the [evidence] on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case. . . . Most importantly, we must examine the impact of the evidence on the trier of fact and the result of the trial.” (Internal quotation marks omitted.) State v. Jacobson, 283 Conn. 618, 641-42, 930 A.2d 628 (2007).

Here, the defendant has failed to persuade us that the exclusion of the evidence substantially affected the verdict. In fact, the only statement in the defendant’s brief arguably relating to harmfulness is that “[t]he jury obviously was entitled to information so crucial to its evaluation of the witness’ credibility.” Wilson’s credibility, however, already had been called into question when she admitted that she had lied in her statement about what had happened. Even apart from questions of credibility, we reiterate that the defendant was able to introduce evidence at trial regarding a motive on the part of Wilson to attack her. Any further evidence in that regard most likely would not have made a difference in the verdict. Accordingly, we conclude that the exclusion of evidence as to Wilson’s alleged second child was harmless and that the defendant is not entitled to a new trial.

II

The defendant next claims that the court improperly precluded her from cross-examining Wilson about Wilson’s use of crack cocaine. We disagree.

During the defendant’s cross-examination of Wilson, the following colloquy occurred:

“[Defense Counsel]: You are a little shaky today. Are you under the influence of anything today?
“[The Witness]: No.
“[Defense Counsel]: Are you under the influence of any alcohol or drugs that will affect your ability?
“[The Witness]: No.
“[Defense Counsel]: Have you smoked anything, or—
“[The Prosecutor]: This is absurd at this point to be quite honest with you.
“The Court: Yeah, I sustain it.”

At that point, defense counsel requested a further hearing on the matter, and the jury was excused. Thereafter, defense counsel argued that “[u]pon information and belief, [Wilson] is constantly under the influence of crack cocaine.” He further argued that her alleged addiction was relevant to her state of mind and her ability to perceive. The court initially observed that defense counsel had ambushed the witness with “rapid fire” questions. It then concluded that defense counsel “can ask and she can answer . . . but if it’s ‘no,’ she denies it, then you would have to use other witnesses to, basically, attack her credibility.” Upon further objection from the state, the court also restricted the form of the defendant’s questions regarding Wilson’s alleged addiction to “yes or no” questions. When defense counsel resumed his cross-examination of Wilson, he did not inquire about Wilson’s drug use. Later, during his direct examination of Wilson, defense counsel inquired briefly whether she was under the influence of drugs on the day of the altercations or the day before. Wilson responded “no” to both questions.

“Our standard of review of a claim that the court improperly limited the cross-examination of a witness is one of abuse of discretion. . . . [I]n . . . matters pertaining to control over cross-examination, a considerable latitude of discretion is allowed. . . . The determination of whether a matter is relevant or collateral, and the scope and extent of cross-examination of a witness, generally rests within the sound discretion of the trial court. . . . Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. . . .

“The court’s discretion, however, comes into play only after the defendant has been permitted cross-examination sufficient to satisfy the sixth amendment [to the United States constitution], . . . The sixth amendment . . . guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination .... As an appropriate and potentially vital function of cross-examination, exposure of a witness’ motive, interest, bias or prejudice may not be unduly restricted. . . . Compliance with the constitutionally guaranteed right to cross-examination requires that the defendant be allowed to present the jury with facts from which it could appropriately draw inferences relating to the witness’ reliability. . . . [Preclusion of sufficient inquiry into a particular matter tending to show motive, bias and interest may result in a violation of the constitutional requirements of the sixth amendment. ... In determining whether such a violation occurred, [w]e consider the nature of the excluded inquiry, whether the field of inquiry was adequately covered by other questions that were allowed, and the overall quality of the cross-examination viewed in relation to the issues actually litigated at trial.” (Internal quotation marks omitted.) State v. Holbrook, 97 Conn. App. 490, 497-98, 906 A.2d 4, cert. denied, 280 Conn. 935, 909 A.2d 962 (2006).

We conclude that the defendant’s cross-examination of Wilson was not unduly restricted. Although the court limited the manner in which defense counsel could inquire about Wilson’s drug use, it did not prohibit such an inquiry. In all, during his entire examination of Wilson, defense counsel was able to inquire whether she was under the influence of drugs both at the time of the incident and at trial. Wilson responded negatively to all questions posed on the subject. Furthermore, following argument before the court, the defendant did not avail herself of the opportunity to pursue the topic on cross-examination. We fail to see how the defendant effectively could have pursued the subject in any event, given Wilson’s negative responses to all questions posed. Additionally, even if the court abused its discretion, any impropriety was harmless, as the defendant was able to introduce rebuttal testimony through Moussay Ortiz that Wilson had smoked crack cocaine on the night before the altercations. The court did not abuse its discretion, and, therefore, the defendant’s claim fails.

Ill

The defendant next claims that the prosecutor committed impropriety in the questioning of two witnesses. Specifically, the defendant maintains that the prosecutor improperly made himself a witness by referring to pretrial conversations he had had with Wilson and Jonathan Ortiz while he was examining them at trial. We are not persuaded.

“In analyzing claims of prosecutorial [impropriety], we engage in a two step analytical process. The two steps are separate and distinct: (1) whether [impropriety] occurred in the first instance; and (2) whether that [impropriety] deprived a defendant of his due process right to a fair trial. . . . Only if we conclude that prosecutorial [impropriety] has occurred do we then determine whether the defendant was deprived of his due process right to a fair trial.” (Citation omitted; internal quotation marks omitted.) State v. Gordon, 104 Conn. App. 69, 73-74, 931 A.2d 939, cert. denied, 284 Conn. 937, 937 A.2d 695 (2007).

Although the defendant asserts that the “prosecutor injected himself as a witness by asking questions about conversations they had with him during interviews in the prosecutor’s office,” we can discern no impropriety in the examinations cited by the defendant. The defendant refers to the prosecutor’s rehabilitation of Wilson and his questioning of Jonathan Ortiz concerning a prior inconsistent statement as improper. We have reviewed the examinations in question and see no improper expression of opinion as to the witnesses’ credibility, or appeals to the emotions or prejudices of the jury. See State v. Salamon, 287 Conn. 509, 564, 949 A.2d 1092 (2008) (prosecutor may not seek to sway jury by unfair appeals to emotion and prejudice or express opinion, directly or indirectly as to credibility of witnesses). Contrary to the defendant’s assertions, the testimony in question as to Wilson appears to be a straightforward example of witness rehabilitation. As to Jonathan Ortiz, it is not apparent that the testimony revealed any prior inconsistent statement. See footnote 5. Furthermore, the defendant has not cited any case in which this court or our Supreme Court has determined that a prosecutor’s mere reference to a prior conversation with that witness during the course of examining that witness, without more, renders the prosecutor an unsworn witness in the case. Because we conclude that the prosecutor’s questioning of Wilson and Jonathan Ortiz was not improper, we reject the defendant’s claim.

IV

The defendant finally claims that the evidence was insufficient to support the conviction as to the charge of assault in the third degree stemming from her conduct near the children’s museum in Bristol. We disagree.

“In reviewing a sufficiency of the evidence claim, we apply a two-part test. 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 [finder of fact] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. John B., 102 Conn. App. 453, 469, 925 A.2d 1235, cert. denied, 284 Conn. 906, 931 A.2d 267 (2007). A person is guilty of assault in the third degree in violation of § 53a-61 (a) (1) when “[w]ith intent to cause physical injury to another person, he causes such injury to such person . . . .” General Statutes § 53a-61 (a) (1),

The defendant argues that the evidence was insufficient to demonstrate that she assaulted Wilson near the children’s museum. In support of her argument, the defendant asserts that the only testimony adduced at trial supporting her conviction of assault in the third degree was from Wilson. The defendant maintains that because Wilson admitted to lying in her statement to police about the fact that an altercation had occurred at Woodard Drive, her testimony about what had occurred in her car by the children’s museum necessarily must be false. The defendant’s claim, although clothed in sufficiency of the evidence language, in reality challenges the credibility of Wilson’s testimony.

“Our task is to view the evidence in the light most favorable to sustaining the verdict before determining if the jury reasonably could have concluded that such evidence established guilt beyond a reasonable doubt. . . . We assume that the jury credited the evidence that supports the conviction if it could reasonably have done so. Questions of whether to believe or to disbelieve a competent witness are beyond our review. As a reviewing corurt, we may not retry the case or pass on the credibility of witnesses. . . . Our review of factual determinations is limited to whether those findings are clearly erroneous. . . . We must defer to the trier of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Citation omitted; internal quotation marks omitted.) State v. Osoria, 86 Conn. App. 507, 514-15, 861 A.2d 1207 (2004), cert. denied, 273 Conn. 910, 870 A.2d 1082 (2005). Wilson testified both on direct and cross-examination that during the incident by the children’s museum, the defendant leaned into the passenger window of her vehicle and pulled her hair. The state also entered into evidence a clump of bloodied hair found in Wilson’s vehicle, as well as a photograph depicting the clump of hair on the floor of the vehicle. On the record before us, the jury was free to credit Wilson’s testimony. Because we cannot decide issues of credibility, the defendant’s claim must fail.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury also returned a guilty verdict on one count of assault in the second degree in violation of General Statutes § 53a-60 (a) (1). At sentencing, that count was merged with the defendant’s conviction of assault in the first degree.

       An avulsion is defined as “[a] tearing away or forcible separation.” Stedman’s Medical Dictionary (27th Ed. 2000) p. 175.

       Interwoven with the defendant’s argument regarding the cross-examination of Wilson is the defendant’s argument that the court improperly restricted defense counsel’s direct examination of her witness, Moussay Ortiz, regarding Wilson’s drug use. The record reveals that Moussay Ortiz did testify as to Wilson’s drug use on the day before the altercations but that the court sustained an objection as to how many times he had seen Wilson ingest illegal drugs on the ground of relevance. “[T]he trial court’s ruling on the relevancy of . . . evidence will be reversed on appeal only if the court has abused its discretion or an injustice appears to have been done.” (Internal quotation marks omitted.) State v. Rodriguez, 107 Conn. App. 685, 710, 946 A.2d 294, cert. denied, 288 Conn. 904, 953 A.2d 650 (2008).
      We agree with the court that the only relevant time periods regarding Wilson’s alleged intoxication are at the time of the altercations and at the time of trial. See id., 710-11 (“We agree with the court that whether [the witness] used drugs when he was in high school was not relevant to whether [the witness] purchased drugs ... on the night in question. When asked, [the witness] denied using drugs. It was for the jury to decide if [the witness] was telling the truth. We conclude that the court did not abuse its discretion or deny the defendant a constitutional right.”).

       Although the defendant’s claim of prosecutorial impropriety was not preserved at trial, it may be reviewed utilizing the two-pronged analysis that we have applied in the past. See State v. Stevenson, 269 Conn. 563, 572-73, 849 A.2d 626 (2004) (unpreserved claims of prosecutorial impropriety reviewable without seeking review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 [1989]).

       A portion of the examination of Wilson, as cited by the defendant, is as follows:
      “[The Prosecutor]: When you met with me the first time and I spoke with you, what did you say?
      “[The Witness]: I told you the same story.
      “[The Prosecutor]: That’s in your statement.
      “[The Witness]: Yes.
      “[The Prosecutor]: And the same story meaning where the incident occurred?
      “[The Witness]: Yes.
      “[The Prosecutor]: Okay. And you told me it occurred in the car.
      “[The Witness]: Yes.

        “[The Prosecutor]: Okay. And when you met with me the second time, what did you do, Ms. Wilson?
      “[The Witness]: I came and told you the truth.
      “[The Prosecutor]: Why did you do that, Ms. Wilson?
      “[The Witness]: Because you had made a comment the first time I had spoke with you about any little thing—me not telling the truth could get [the defendant] off of what she did to me, and so I felt that I needed to come clean and tell you the truth. Because I didn’t want her to get off on some little lie.”
      A portion of the examination of Jonathan Ortiz, as cited by the defendant, is as follows:
      “[The Prosecutor]: Do you remember when you came and you spoke with me in my office?
      “[The Witness]: Yes.
      “[The Prosecutor]: What did you tell me—or do you remember telling me about this fight, meaning sometimes you win, sometimes you lose? Do you remember saying that?
      “[The Witness]: Yeah. . . . Yes.
      “[The Prosecutor]: What did you mean by that?
      “[The Witness]: I mean, when someone fights—I mean, I am a street fighter. You’ve got to carry two bags, one to take and one to give out. Sometimes you win. Sometimes you lose. That’s what I told him.
      “[The Prosecutor]: Do you remember telling me in my office that . . . Wilson lost this fight?
      “[The Witness]: I said, yes, that I thought [Wilson] had lost the fight because she left.
      “[The Prosecutor]: Didn’t you just testify on direct examination that you thought it was an even match?
      “[The Witness]: Yeah, it was an even fight, but then she left. . . . Prom the experience that I have as a street fighter, he who walks away loses."

       Our rejection of the defendant’s claim, on the grounds raised in this court, and in the absence of objection in the trial court, is not to be construed as an endorsement of the questioning.


author: ROBINSON, J.

text:
    BRUCE E. DRISKA v. JEFFREY D. PIERCE ET AL.
    (AC 28891)
    Gruendel, Robinson and Borden, Js.
    Argued June 3

    officially released October 7, 2008

      Michael F. Dowley, for the appellants (defendants).

      Timothy P. Lynch, deputy city attorney, for the appellee (plaintiff).

       The case originally was scheduled for oral argument before this court on May 29, 2008, at which time the defendants’ counsel presented his oral argument. The plaintiffs counsel did not appear on that date, and we permitted him to present his oral argument on June 3, 2008, at which time counsel for the defendants presented his rebuttal.

   Opinion

ROBINSON, J.

The defendants, Jeffrey D. Pierce and Linda Pierce, appeal from the judgment of the trial court that issued a permanent injunction, preventing them from operating an all terrain vehicle (ATV) park on their property. On appeal, the defendants challenge certain legal conclusions and the evidentiary findings of the court. We affirm the judgment of the trial court.

The following factual and procedural history is relevant for our discussion. On September 22, 2006, the plaintiff, Bruce E. Driska, the zoning enforcement officer for the city of Middletown, issued a cease and desist order to the defendants. The order stated that the defendants were in violation of Middletown zoning code §§ 10.03.01 and 21 by conducting a “commercial business (outdoor recreation)” on their property. The defendants had been operating an ATV park, charging $30 per day for adult riders and $15 per day for riders younger than age eighteen.

On January 3, 2007, the plaintiff filed an application for a temporary injunction, alleging that the defendants had failed to comply with the cease and desist order. On January 29, 2007, the court held a hearing on the plaintiffs application. The defendants offered to stipulate that they were no longer charging riders to use their property. The plaintiff responded that “it’s our position that even if [the defendants] are not charging, it’s still violative of the code.” The court then issued a temporary injunction preventing the commercial use of the defendants’ property with respect to the operation of an ATV park.

On February 20, 2007, the parties submitted simultaneous trial briefs to the court. On February 26, 2007, the court heard testimony from the plaintiff and Jeffrey Pierce, who testified that after he had received the cease and desist order, he immediately stopped charging riders for using his property. He further stated that he had instructed his son, who operated and maintained an Internet site advertising the ATV park, to remove “any reference to money.” Jeffrey Pierce also acknowledged that he had accepted donations, ranging from $4 to $30, from ATV riders for legal expenses.

On March 6, 2007, the court issued a memorandum of decision granting a permanent injunction preventing the defendants from allowing their property to be used as an ATV park. The court set forth two separate reasons for granting the injunction. First, the court found that the defendants’ property was located within a residential zone. The court then determined that due to its location in a residential zone, a special use permit would be required to use it as an ATV park. The court then observed that the defendants had not obtained a special use permit.

The second basis for the court’s decision constituted the remainder of its memorandum and was discussed in greater detail than the first. The court found that “the defendants’ continued advertisement of [the] property as a commercial ATV park and collection of a ‘donation’ from each individual ATV user constitutes ‘commercial business.’ ” It further found that the defendants had not wilfully violated the temporary injunction or the cease and desist order. The court issued the following order: “The defendants are permanently enjoined from operating an ATV park on their property .... The defendants are eryoined from advertising that their property is available for ATV use or in any way facilitating the use of their property by nonfamily members as an ATV park.” This appeal followed.

On appeal, the defendants claim that the court (1) improperly found that they were conducting a commercial business by accepting donations from patrons of the ATV park, (2) improperly found that they were conducting a commercial business by advertising on the Internet, (3) abused its discretion by ordering that defendants were prohibited from facilitating the use of the property by nonfamily members as an ATV park, (4) failed to take into consideration certain statutes applicable to the use of ATVs and (5) abused its discretion by awarding a remedy beyond the scope requested by the plaintiff or those available through administrative remedies and in accordance with zoning regulations.

The plaintiff responds that the court properly found that the defendants were operating a commercial ATV park in a residential zone. He further contends that the Middletown zoning code prohibits the defendants from using the property, which is located in a residential zone, as an ATV park. In other words, the plaintiff argues that we need not reach the issue of whether the use of the property was commercial. Instead, we need only conclude that the court properly determined that the use of the property as an ATV park was a sufficient basis to affirm the judgment of the trial court.

I

In our view, the dispositive question in this appeal is whether the operation of an ATV park is permitted in a residential zone located in Middletown. We agree with the plaintiffs argument and conclude that such a use is not permitted, absent a special use permit. Accordingly, the court properly granted the injunction on this basis. As a result of this conclusion, we decline to consider the propriety of the court’s conclusion that “commercial business (outdoor recreation)” is defined as “charging a fee for the recreational use of [the defendants’] property for ATVs.”

At the outset, we identify the applicable standard of review. The plaintiffs argument requires us to interpret the Middletown zoning regulations. This poses a question of law, and, therefore, our review is plenary. Enfield v. Enfield Shade Tobacco, 265 Conn. 376, 380, 828 A.2d 596 (2003); see also 200 Associates, LLC v. Planning & Zoning Commission, 83 Conn. App. 167, 175, 851 A.2d 1175, cert. denied, 271 Conn. 906, 859 A.2d 567 (2004). We further note that “zoning regulations are local legislative enactments . . . and, therefore, their interpretation is governed by the same principles that apply to the construction of statutes. . . . Moreover, regulations must be interpreted in accordance with the principle that a reasonable and rational result was intended .... The process of statutory interpretation involves the determination of the meaning of the statutory language [or . . . the relevant zoning regulation] as applied to the facts of the case, including the question of whether the language does so apply. ” (Internal quotation marks omitted.) Trumbull Falls, LLC v. Planning & Zoning Commission, 97 Conn. App. 17, 21-22, 902 A.2d 706, cert. denied, 280 Conn. 923, 908 A.2d 545 (2006).

Our starting point is the language of the relevant section of the Middletown zoning regulations. Section 21.01A of the Middletown zoning code provides in relevant part: “No land shall be used . . . except for any use which is indicated in the R-l columns of the Use Schedule, Section 60 of the Middletown zoning code and shall be subjected to such provisions as referred to in that column.” Section 60.00 of the Middletown zoning code provides in relevant part: “No Land shall be used or occupied and no structure shall be erected, constructed, reconstructed, altered or used, except for any use of the following permitted uses, special exception uses, accessory use, permitted Residential Unit Business Pursuit uses or uses by temporary uses.”

As we noted previously, the court found that the defendants’ property is located in a residential zone. Neither party disputed or challenged this finding. According to the Middletown zoning code, the only uses permitted in a residential zone are those set forth in § 60 of the zoning code. Section 60.01 of the Middle-town zoning code states that single-family dwelling, detached, two-family dwelling, farming or other agriculture, residential unit business pursuit, business and profession offices and certain assisted elderly housing are the permitted uses in a residential zone. The defendants’ use of the property as an ATV park, whether commercial or not, does not fit into any of these categories. Furthermore, according to the zoning code, a use that is not expressly permitted is prohibited. Section 60.06 of the Middletown zoning code expressly prohibits “[a]ny use not specified as a permitted use, special exception, accessory use, permitted home occupation use or use by temporary permit . . . .”

We note that outdoor recreation is permitted by a special exception in residential zones. See Middletown Zoning Code § 60.02.27. It is undisputed, however, that the defendants never requested a special exception to use the property as an ATV park. Accordingly, we conclude that the defendants’ use of their property, located in a residential zone, as an ATV park is not permitted by the Middletown zoning code.

II

The defendants also claim that the permanent injunction issued by the court exceeded the scope of the relief requested by the plaintiff and the relief available through administrative remedies and the zoning regulations. They maintain that the granting of such relief constitutes an abuse of discretion by the court. We do not agree.

Our Supreme Court has stated: “In seeking an injunction pursuant to [General Statutes] § 8-12, the town is relieved of the normal burden of proving irreparable harm and the lack of an adequate remedy at law because § 8-12 by implication assumes that no adequate alternative remedy exists and that the injury was irreparable. . . . The town need prove only that the statutes or ordinances were violated.” (Internal quotation marks omitted.) Bauer v. Waste Management of Connecticut, Inc., 239 Conn. 515, 532-33, 686 A.2d 481 (1996). “A prayer for injunctive relief is addressed to the sound discretion of the court and the court’s ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous statement of law or an abuse of discretion. . . . Therefore, unless the trial court has abused its discretion, or failed to exercise its discretion . . . the trial court’s decision must stand.” (Internal quotation marks omitted.) Host America Corp. v. Ramsey, 107 Conn. App. 849, 854, 947 A.2d 957, cert. denied, 289 Conn. 904, 957 A.2d 870 (2008); see also Maritime Ventures, LLC v. Norwalk, 277 Conn. 800, 807-808, 894 A.2d 946 (2006).

The defendants argue that the court lacked the authority to “prohibit private property owners from allowing nonfamily members to use their land for ATV riding or from prohibiting private property owners from advertising that their property is available for such use.” That statement does not accurately represent the injunction issued by the court. The court enjoined the defendants from “ operating an ATV park on their property [and] from advertising that their property is available for ATV use, or in any way facilitating the use of their property by nonfamily members as an ATV park.” (Emphasis added.) This order prevents the defendants from using their property in a manner that is prohibited by the Middletown zoning code. We conclude that the issuance of the permanent injunction did not constitute an abuse of the court’s discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       Pursuant to General Statutes § 8-12, the plaintiff, as the zoning enforcement officer, is vested with the power to enforce the city’s zoning code. See Enfield v. Enfield Shade Tobacco, LLC, 265 Conn. 376, 378, 828 A.2d 596 (2003).

       The plaintiff had presented two alternative arguments to the court in support of his request for injunctive relief. First, that the defendants had continued to operate a commercial enterprise by charging ATV riders for the use of property. Second, even if the defendants did not charge riders, the use of the property as an ATV park was prohibited under the zoning code.

       At oral argument before this court, counsel for the defendants strenuously claimed that the issue of whether operating an ATV park was permitted in a residential zone was not set forth in the pleadings and, therefore, was outside the scope of the proceedings before the trial court and the present appeal. This claim, however, was not presented in the defendants’ brief. We therefore decline to consider it because “[i]t is well settled that claims on appeal must be adequately briefed . . . and cannot be raised for the first time at oral argument before the reviewing court.” (Internal quotation marks omitted.) Breen v. Synthes-Stratec, Inc., 108 Conn. App. 105, 110 n.4, 947 A.2d 383 (2008); see also Gallo v. Barile, 284 Conn. 459, 478 n.15, 935 A.2d 103 (2007).
      We do note, however, that in his brief submitted to the trial court on February 20, 2007, the plaintiff argued: “The property at issue is located in a residential zone. Permitted uses within residential zones are as follows: single-family dwelling, two family dwelling, fanning, residential business, and assisted elderly housing. ‘Outdoor recreation’ is permitted within residential zones as a special exception use. Middletown Zoning Code § 21. . . . The defendants have not applied for a special exception for the ATV park use.”
      Furthermore, at the outset of the February 26, 2007 hearing, counsel for the plaintiff stated: “We contend that that’s irrelevant, whether they’re charging or not. This activity isn’t allowed in this zone. . . . [T]his type of activity isn’t allowed in residential zones. . . . Now, this is allowed by special exception . . . but the defendants haven’t applied for a special exception to conduct this activity. . . . But, yes, if [the] defendants are holding their property open and allowing other people to come and utilise it as an ATV park, even without charging, that would be a violation of the code.” (Emphasis added.)

       On the basis of this finding, the court denied the plaintiffs request for costs and attorney’s fees.

       Section 10.03.01 of the Middletown zoning code provides: “No building, structure, or land shall hereafter be used or occupied; and no building or structure or part thereof shall hereafter be erected, constructed, reconstructed, moved or structurally altered except in conformity with all of the regulations herein specified for the zone in which it is located.”

       Section 21.00A of the Middletown zoning code sets forth the following description of residential zones: “This zone is composed of certain land so situated as to be suitable for a certain quiet low density residential area. Accordingly, the regulations for this zone are designed to stabilize and protect the essential characteristics of the zone, to promote and encourage a suitable environment for family life and provide certain enumerated nonresidential activities that make a complete neighborhood. To these ends development is limited to a relatively low concentration and permitted uses are limited basically to a single detached dwelling units plus certain additional uses such as school, churches, park land and certain non-residents of the zone plus public institutions.”

       See § 21.01A of the Middletown zoning code.

       See also § 10.03.01 of the Middletown zoning code, which provides: “No building, structure, or land shall hereafter be used . . . except in conformity with all of the regulations herein specified for the zone in which it is located. ”

       Section 60.02.27 of the Middletown zoning code provides: “Outdoor Recreational uses such as: Parks, Playgrounds, Playfields, Golf courses, Boating areas, Community buildings, Developed open space, such as Arboreta, Botanical and Zoological gardens and similar recreational uses.”

       We note that the defendants did not raise the issues of accessory uses, permitted residential unit business pursuit uses or uses by temporary uses before the trial court. We therefore do not address or consider these issues on appeal, as we generally are limited to matters raised before the trial court. See Moran v. Morneau, 100 Conn. App. 169, 171, 917 A.2d 1003 (2007) (appellate review limited to matters in record; reviewing court cannot hear matters for first time on appeal). For this reason, we also decline to consider the claim set forth in the defendants’ appellate brief that the court’s decision is violative of the legislative intent set forth in General Statutes §§ 52-557Í through 52-557f. We likewise decline to consider the defendants’ claim, raised for the first time on appeal, that the court should have found that they were in compliance with General Statutes § 14-387 (5) and that the court failed to consider General Statutes § 14-390.

       The defendants also appear to argue that the court could grant only a civil penalty not to exceed $2500, an injunction prohibiting commercial business (outdoor recreation) and costs, pursuant to § 8-12. This argument was not presented to the trial court, and we decline to consider it on appeal. See footnote 11. We do note, however, that § 8-12 does not prohibit injunctive relief, and such relief as is appropriate when a zoning ordinance is being violated.


text:
    JO ANNE C. SCHWEIGER v. AMICA MUTUAL INSURANCE COMPANY
    (AC 28644)
    Flynn, C. J., and Beach and Dupont, Js.
    Argued June 2
    officially released October 7, 2008

      Donald J. McCarthy, Jr., for the appellant (plaintiff).

      Steven L. Seligman, for the appellee (defendant).
   Opinion

BEACH, J.

The plaintiff, Jo Anne C. Schweiger, appeals from the judgment of the trial court rendered after it granted a motion for a directed verdict filed by the defendant, Arnica Mutual Insurance Company, pursuant to Practice Book § 16-37. On appeal, the plaintiff claims that the court improperly concluded that she failed to present sufficient evidence to remove the issues of negligence and proximate cause from the realm of conjecture, speculation or surmise so as to survive the defendant’s motion for a directed verdict for failure to establish a prima facie case. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. On May 24, 2003, the plaintiff was operating her motor vehicle in an easterly direction on Route 44 in Avon. She was driving in the left lane of two lanes on Route 44 when she slowed and brought her car to a stop behind a line of traffic that was waiting for a car ahead to make a left turn across the westbound lanes of Route 44. The plaintiff considered switching to the right lane but decided against it because of the heavy traffic conditions that she observed. After being stopped for a total of approximately four to five seconds, the plaintiffs car was struck in the rear by a car operated by the alleged tortfeasor, Brianna-Marie Blodgett. The plaintiff described the impact as a hard jolt. She further testified that she did not observe the car that struck her, either before or after the accident. The plaintiff also testified that she did not speak with Blodgett after the accident.

The plaintiff subsequently filed this uninsured-under-insured motorist action against the defendant, alleging liability for the negligent operation of the motor vehicle driven by Blodgett. A jury trial was held in December, 2005. The only evidence presented by the plaintiff addressing the issue of liability was her testimony regarding the incident and photographs of the damage to her car. Neither Blodgett nor any other witnesses to the accident testified. Following the presentation of the plaintiffs case-in-chief, the defendant moved for a directed verdict. The court reserved judgment on the motion and submitted the case to the jury. After the jury announced that it was deadlocked, the defendant filed a motion pursuant to § 16-37 for judgment in accordance with its motion for a directed verdict, which the court granted. The court concluded that “[t]he evidence in this case is insufficient to remove the issue of how this automobile accident occurred from the realm of speculation, conjecture or surmise.” This appeal followed.

We begin our analysis by setting forth the legal principles that govern our review of the plaintiffs claim. “The standards for appellate review of a directed verdict are well settled. Directed verdicts are not favored. ... A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion. ... In reviewing the trial court’s decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff. . . . Although it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation. ... A directed verdict is justified if . . . the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party.” (Internal quotation marks omitted.) Riccio v. Harbour Village Condominium Assn., Inc., 281 Conn. 160, 163, 914 A.2d 529 (2007). “A verdict may be directed . . . where the claim is that there is insufficient evidence to sustain a favorable verdict.” (Internal quotation marks omitted.) Beale v. Yale-New Haven Hospital, 89 Conn. App. 556, 565-66, 874 A.2d 259 (2005).

“ [T] o establish a prima facie case, the proponent must submit evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove. . . . [T]he evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to [the plaintiff], and every reasonable inference is to be drawn in [the plaintiffs] favor.” (Internal quotation marks omitted.) Cadle Co. v. Errato, 71 Conn. App. 447, 455-56, 802 A.2d 887, cert. denied, 262 Conn. 918, 812 A.2d 861 (2002). “[Wjhether the plaintiff has established a prima facie case is a question of law, over which our review is plenary.” (Internal quotation marks omitted.) John H. Kolb & Sons, Inc. v. G & L Excavating, Inc., 76 Conn. App. 599, 605, 821 A.2d 774, cert. denied, 264 Conn. 919, 828 A.2d 617 (2003).

“Negligence involves the violation of a legal duty which one owes to another, in respect to care for the safety of the person or property of that other.” Sharkey v. Skilton, 83 Conn. 503, 508, 77 A. 950 (1910). The “essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.” (Internal quotation marks omitted.) Jagger v. Mohawk Mountain Ski Area, Inc., 269 Conn. 672, 687 n.13, 849 A.2d 813 (2004).

“To prevail on a negligence claim, a plaintiff must establish that the defendant’s conduct legally caused the injuries. . . . The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct. . . . The second component of legal cause is proximate cause .... [T]he test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiffs injuries. . . . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendant’s conduct]. . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection. . . . This causal connection must be based upon more than conjecture and surmise.” (Citations omitted; internal quotation marks omitted.) Paige v. St. Andrew’s Roman Catholic Church Corp., 250 Conn. 14, 24-26, 734 A.2d 85 (1999). “An actual cause that is a substantial factor in the resulting harm is a proximate cause of that harm. . . . The finding of actual cause is thus a requisite for any finding of proximate cause.” (Citations omitted; internal quotation marks omitted.) Boehm v. Kish, 201 Conn. 385, 391-92, 517 A.2d 624 (1986).

The plaintiff claims that the court improperly concluded that she failed to present sufficient evidence to remove the issues of negligence and proximate cause from the realm of conjecture, speculation or surmise so as to survive the defendant’s motion for a directed verdict. We disagree.

In an automobile accident case, “[a] plaintiff cannot merely prove that a collision occurred and then call upon the defendant operator to come forward with evidence that the collision was not a proximate consequence of negligence on his part. Nor is it sufficient for a plaintiff to prove that a defendant operator might have been negligent in a manner which would, or might have been, a proximate cause of the collision. A plaintiff must remove the issues of negligence and proximate cause from the field of conjecture and speculation.” (Internal quotation mar ks omitted.) O’Brien v. Cordova, 171 Conn. 303, 306, 370 A.2d 933 (1976).

Recently, in Winn v. Posades, 281 Conn. 50, 913 A.2d 407 (2007), our Supreme Court affirmed the trial court’s judgment of dismissal in an automobile accident case in which no evidence existed regarding liability beyond the fact that the collision had occurred and that the defendant operator had been traveling at an unreasonable, even reckless, speed when he struck the vehicle of the plaintiffs decedent. Id., 52-56. The defendant was the only surviving eyewitness to the accident, and he testified that he recalled nothing of the accident or how it occurred. Id., 52. The Supreme Court concluded that “[although the plaintiffs evidence showed that [the defendant] had been negligent or reckless in operating his [vehicle] through the intersection at a highly excessive rate of speed, there was no evidence that his speed actually had caused the collision.” Id., 60. The Supreme Court, therefore, concluded that insufficient evidence existed to establish legal cause. Id., 64.

The plaintiff in the present case similarly failed to present sufficient evidence regarding negligence and proximate cause to remove the issues from the field of speculation or conjecture. The plaintiff introduced no evidence beyond the fact that her vehicle was struck by Blodgett’s vehicle, perhaps with some force. The fact that there was a collision by itself is insufficient to establish legal cause. See O’Brien v. Cordova, supra, 171 Conn. 306 (“[c]ommon experience shows that motor vehicle accidents are not all due to driver negligence”). No one testified as to the actual circumstances that caused Blodgett’s vehicle to strike the plaintiffs vehicle, and the plaintiff testified that she did not see Blodgett’s vehicle strike her vehicle. There remains a number of factual possibilities that could explain how the accident occurred. See Palmieri v. Macero, 146 Conn. 705, 707-708, 155 A.2d 750 (1959).

Beyond the fact that there was a collision, the plaintiff also argues that the jury reasonably could have inferred negligence, on the basis of the apparent force of the collision and the fact that there was no impediment to Blodgett’s stopping her vehicle at the rear of the line of cars as the plaintiff had without any problem. The plaintiff argues that the jury also reasonably could have inferred that Blodgett was traveling at an excessive rate of speed, was following too closely, failed to keep a proper lookout, failed to take evasive action and failed to keep her vehicle under reasonable and proper control. Although the jury may make reasonable inferences when determining negligence and causation, the plaintiff must present sufficient evidence from which such inferences maybe made. See O’Brien v. Cordova, supra, 171 Conn. 305-306. In the present case, the plaintiff presented insufficient facts from which such inferences reasonably could have been drawn. “[P]roof of excessive speed by the operator of a motor vehicle is insufficient, standing alone, to establish legal cause.” Winn v. Posades, supra, 281 Conn. 64. Moreover, in Winn, the plaintiff established the defendant operator’s excessive and even reckless speed by way of testimony from the investigating officer of the accident, and that fact, by itself, was insufficient to establish legal causation. Id., 55. In the present case, there is even less evidence than the amount deemed insufficient in Winn. See id., 64. Accordingly, we reject the plaintiff’s claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 16-37 provides in pertinent part as follows: “Whenever a motion for a directed verdict made at any time after the close of the plaintiffs case in chief is denied or for any reason is not granted, the judicial authority is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. . . . [I]f a verdict was not returned [a party who has moved for a directed verdict] may move for judgment in accordance with his or her motion for a directed verdict within [ten days] after the jury have been discharged from consideration of the case. ... If no verdict was returned the judicial authority may direct the entry of judgment as if the requested verdict had been directed . . . .”

       The plaintiff argues that her case is analogous to Terminal Taxi Co. v. Flynn, 156 Conn. 313, 317-18, 240 A.2d 881 (1968), in which the Supreme Court found that sufficient evidence existed to remove the issue of proximate cause from the realm of speculation or conjecture. That case, however, is distinguishable because additional evidence, beyond the fact that there was a collision, existed from which the court could conclude that “there [was] little doubt about the manner in which the accident occurred.” Id., 317.