text:
    Joseph Askinazi v. Andree Askinazi
    (11602)
    O’Connell, Heiman and Spear, Js.
    Argued January 4
    decision released May 10, 1994

      Carolyn Richter, with whom was Claudine Siegel, for the appellant (defendant).

      Richard G. Kent, for the appellee (plaintiff).
   Spear, J.

In this appeal from the judgment rendered in a marital dissolution action, the defendant claims that (1) the trial court’s financial orders are inconsistent with its underlying findings, (2) the trial court improperly terminated the defendant’s survivorship interest in the plaintiffs pension (survivorship benefit) because it erroneously construed such an interest as alimony rather than property, and (3) the trial court’s financial orders failed to protect the interests of the financially disadvantaged defendant. We disagree with all of the defendant’s claims and affirm the trial court’s judgment.

The trial court made the following findings. The parties were married on December 28, 1980, at Cedarhurst, New York, and there were no children of the marriage. Both parties contributed to the breakdown of the eleven year marriage, but the court ascribed more blame to the plaintiff than to the defendant. Although the plaintiff brought a substantially higher income to the marriage, he used significant joint funds to pay his gambling losses during the marriage.

The court entered the following property distribution and alimony orders. The defendant was awarded the leasehold interest in the premises occupied by the parties in Fairfield together with the cash deposit held by the lessor, a 1983 AMC automobile, her jewelry, fur coats and gold bracelets, a money market fund valued at $2323.21, her individual retirement account (IRA) in the amount of $24,131.47, an inheritance of $4622.11, her interest in a bank account entitled “Claudette Stark in Trust for Andree Askinazi,” and numerous items of furniture and household furnishings. The court also awarded her 15 percent of the plaintiff’s United States government pension as alimony to be paid monthly (approximately $400 per month).

The plaintiff was awarded his 1986 Buick Century automobile, his checking account balance in the amount of $6076.21 and certain household furnishings and items of personal property. Neither party was awarded counsel fees.

The trial court’s memorandum of decision did not specifically mention the survivorship benefit that was a part of the plaintiff’s pension plan. In response to the defendant’s motion for articulation, the trial court stated that it had denied the defendant’s request that she be awarded a survivorship interest in the plaintiff’s pension.

I

The defendant first claims that the trial court abused its discretion because the financial orders are inconsistent with the court’s findings and unreasonable under the statutory criteria for property and alimony awards set forth in General Statutes §§ 46b-81 (c) and 46b-82. We are unpersuaded.

“Our standard of review in domestic relations cases is clear. We will not reverse a trial court’s rulings regarding financial orders unless the court incorrectly applied the law or could not reasonably have concluded as it did.” Watson v. Watson, 20 Conn. App. 551, 553-54, 568 A.2d 1044 (1990). “A fundamental principie in dissolution actions is that a trial court may exercise broad discretion in awarding alimony and dividing property as long as it considers all relevant statutory criteria.” Debowsky v. Debowsky, 12 Conn. App. 525, 526, 532 A.2d 591 (1987). In exercising that discretion pursuant to General Statutes § 46b-81, a trial court may assign to either spouse all or any part of the property owned by the other spouse. Id. “Pursuant to General Statutes § 46b-82, a trial court has similar discretion to award alimony to either spouse. These statutory provisions for the award of alimony and assignment of property are permissive, not mandatory. Such awards rest in the sound discretion of the trial court and will not be interfered with unless it appears that such discretion has been abused.” Id. “A reviewing court must indulge every reasonable presumption in favor of the correctness of the trial court’s action to determine ultimately whether the court could reasonably conclude as it did. . . . This standard of review reflects the sound policy that the trial court has the opportunity to view the parties first hand and is therefore in the best position to assess all of the circumstances surrounding a dissolution action, in which such personal factors such as the demeanor and the attitude of the parties are so significant.” (Citation omitted; internal quotation marks omitted.) Fiddelman v. Redmon, 31 Conn. App. 201, 206, 623 A.2d 1064 (1993).

The defendant claims that she was subjected to menace, threats, physical force and vile and abusive language by the plaintiff. The defendant argues that this is one of the reasons why she should have received more favorable financial orders. The court found, however, that both parties had contributed to the breakdown of the marriage by their “mental and physical actions and reactions.” The court went on to find that on some occasions the plaintiff used vile and abusive language when communicating with the defendant as well as physical force, both of which she returned in a lesser degree. Thus, the trial court found that the defendant had engaged in the same kind of behavior that she complains of with respect to the plaintiff.

The defendant also claims that she was entitled to more favorable financial orders because the plaintiff dissipated their assets through gambling. The plaintiff testified that he and the defendant spent 95 percent of their Saturdays at Jai-Alai. He further testified that, although the defendant bet on the games only once, she loved it and eagerly shared in his winnings. The defendant denied these assertions, except that she admitted to having attended Jai-Alai with her husband. Whether the defendant tacitly approved of the gambling by her conduct, and the weight, if any, to be given to that conduct in its assessment of the causes of the breakdown of the marriage were issues for the trial court to resolve. The trial court reasonably could have found such approval from the conflicting evidence and could have concluded that the defendant, therefore, bore some responsibility for the gambling losses.

The defendant further asserts that with respect to the likelihood of future employment, the court did not properly consider that (1) the defendant is four years older than the plaintiff, (2) the plaintiff had a significantly higher earning capacity than the defendant, and (3) the defendant’s social security would abate if she found employment, while the plaintiff’s pension would be unaffected by future employment.

The court, in its articulation, stated that it weighed and considered the parties’ ages and employability. “The court is not obligated to make express findings on each of these [General Statutes §§ 46b-81 and 46b-82] criteria.” Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982). Furthermore, the defendant conceded in her brief that the trial court accurately stated at the hearing on the motion for articulation that “neither one of them is a youngster, and employment does not come easily.” Our review of the record and the transcripts reveals no evidence from which the court could have made a finding as to the abatement of the defendant’s social security if she found employment.

The defendant next argues that the alimony order leaves her impoverished and the plaintiff in a better financial position than he was in during the marriage. This claim is based on a comparison of the plaintiff’s monthly gross income after the dissolution with the parties’ joint monthly gross income before dissolution. This comparison is not useful because it does not consider any deductions from gross income or compare the parties’ (presumably lower) joint living expenses before their separation with the total of their separate living expenses following the dissolution. The plaintiff’s financial affidavit shows significantly higher living expenses than shown by the defendant’s, a “need” that the trial court was required to consider pursuant to General Statutes § 46b-82. Neither party will have enough income to meet the monthly expenses claimed in their respective affidavits. The alimony order reduced the defendant’s monthly deficit significantly and increased the plaintiff’s monthly deficit. In view of the plaintiff’s considerably higher living expenses, we cannot say that this order was inconsistent with the court’s findings or unreasonable in light of the statutory criteria.

The defendant also argues that by leaving her with only the assets that she possessed at the time of the dissolution, with the exception of the survivorship benefit, the court apparently felt that she was entitled to those assets only and could make no claim to the assets “appropriated” by the plaintiff. The defendant goes on to argue that the court apparently did not consider the statutory criteria in “this non-allocation-let-everything-sit-where-it-is way of ‘distributing’ assets.” In its memorandum of decision, the trial court specifically points out that the plaintiff had used “significant joint sums” for gambling losses, that he had appropriated about $23,000 for his own use and that the court considered that factor in arriving at its property division. “It is often the case that the appellant, in arguing abuse of discretion, would in reality have this court vary either the weight placed upon specific statutory criteria or the weight placed upon documentary or testimonial evidence. . . . Such an excursion by this court into the domain of the trier is unacceptable. Carpenter v. Carpenter, 188 Conn. 736, 741-42, 453 A.2d 1151 (1982).” (Citation omitted; internal quotation marks omitted.) Ashton v. Ashton, 31 Conn. App. 736, 743, 627 A.2d 943 (1993). The defendant’s claims here, despite her insistence to the contrary, would have us exercise our discretion in place of that exercised by the trial court.

Although the results of the trial court’s decision might have been to leave the parties, except for the survivorship benefit, in approximately the same positions that they occupied at the time of the dissolution, the memorandum of decision clearly indicates that the court considered the statutory criteria in doing so. The trial court, therefore, did not abuse its discretion because it reasonably could have concluded as it did.

II

The defendant next claims that the trial court improperly terminated her survivorship interest in the plaintiffs pension. We disagree.

A

Federal statutes allow a retired federal employee, such as the plaintiff, to provide a survivorship pension benefit for his or her surviving spouse. Ten percent of the retiree’s pay is deducted each month to help fund this annuity, but upon a dissolution of the marriage, this benefit ends unless the trial court orders that it be continued.

She argues that the court mistakenly characterized the survivorship benefit as alimony rather than property and then, without considering the merits of the defendant’s request, terminated the benefit pursuant to the court’s arbitrary rule against continuing alimony after the death of the payor. The defendant also claims that by treating the benefit as alimony, the trial court could not have properly considered “the opportunity of each for future acquisition of capital assets and income” and “the contribution of each of the parties to the acquisition, preservation or appreciation of their respective estates” pursuant to General Statutes § 46b-81 (c). These factors are to be considered in the division of property in a marriage dissolution, but not in awarding alimony pursuant to § 46b-82.

The defendant’s argument that the court considered the survivorship benefit as alimony rests solely on a colloquy that occurred during argument on the plaintiff’s motion for clarification and the defendant’s motion for articulation. Our review of that colloquy, however, reveals that the trial court never addressed the survivorship benefit but was considering only the pension itself. This conclusion is also supported by testimony of the plaintiff and a discussion between the court and counsel during trial.

The court’s statement that it did not usually extend alimony beyond the payor’s death presumes that there is an existing award capable of being extended. The trial court awarded the defendant “as alimony the sum of 15 percent of the plaintiff’s United States government pension.” The court’s comment that it saw no reason to extend the alimony, even if the government had to pay, refers to continuing the alimony award based on the pension itself.

The defendant simply assumes that the court was referring to the survivorship benefit rather than to the termination of the alimony award upon the plaintiff’s death. The trial court did not, however, mention the survivorship benefit during the colloquy on which the defendant relies.

B

Even if we were to accept the defendant’s interpretation of the colloquy as showing that the court treated the benefit as alimony, we find her claim of harm unpersuasive for the following reasons: (1) the trial court did not commit error in construing the benefit as a potential source of alimony, rather than as property, under the circumstances of this case; (2) although the trial court stated its practice of not extending alimony beyond the payor’s death, our review satisfies us that the court did not arbitrarily apply such a rule, but rather considered all of the relevant factors in arriving at its decision; and (3) we are satisfied that the court properly considered all of the relevant factors under General Statutes § 46b-82 in ordering that the benefit be terminated.

The defendant offers no authority for her claim that the survivorship benefit is in fact property rather than alimony. The defendant relies on Thompson v. Thompson, 183 Conn. 96, 438 A.2d 839 (1981), which she concedes offers only minimal guidance on this issue. In Thompson, our Supreme Court noted that vested pension benefits are a “nonforfeitable right”; id., 100 n.3; and that such benefits have a quantifiable present value. Id., 101. The defendant argues that “both of these qualities are more applicable to property than to alimony.”

The issue before the court in Thompson was whether the court’s conclusion that the plaintiff would receive certain pension income if she continued working at her job until age sixty-five was too uncertain and speculative to be considered by the court in fashioning property and alimony orders. Id., 100. In upholding the trial court’s financial awards, which took the plaintiff’s future pension benefits into account, our Supreme Court stated that “[pjension benefits represent a form of deferred compensation for services rendered. . . . As such they are conceptually similar to wages. General Statutes §§ 46b-81 (c) and 46b-82 both require the trial court to consider, inter alia, the occupation and the amount and sources of income of each of the parties when ordering property assignments and alimony. Just as current and future wages are properly taken into account under these statutes, so may unaccrued pension benefits, a source of future income, be considered.” (Citations omitted; emphasis added.) Id.

While the court in Thompson was not called upon to decide whether pension benefits are property or a source of alimony, the language of the Supreme Court’s decision militates against the defendant’s position that the survivorship benefit must be treated as property. In Thompson, the court pointed out that the key factors to be considered under both the alimony and the property statutes were “the occupation and the amount and sources of income of each of the parties.” Id. The trial court considered those factors in the present case. Indeed, the trial court’s articulation states that the court intended to deny the benefit and that it had considered all of the statutory factors under both of the relevant statutes.

Perhaps the reason that Connecticut courts have not directly addressed this issue is that the classification of pension benefits as alimony or property is usually not necessary. “Just as a pension benefit may be viewed as an asset subject to division; it may also be viewed as a source of income from which present or future alimony or support payments may be made. Neither the legislature nor the courts have indicated any preference for one view or the other. The approach which best suits a particular case will depend upon the individual circumstances.” 7 A. Rutkin, Connecticut Practice § 25.10, p. 377.

Given the court’s consideration of the circumstances of this case and all of the factors under both the alimony and property statutes, we cannot conclude that it was improper for the court to view the benefit as a potential source of future alimony rather than as property.

During the hearing on the motions to articulate and clarify, the trial court stated that its practice was not to extend alimony beyond the life of the payor. The defendant claims that the application of this arbitrary rule prevented the court from properly considering the survivorship benefit.

Use of an arbitrary rule under circumstances that require the exercise of the court’s discretion is an abuse of discretion. “Discretion . . . imports something more than leeway in decision-making. It denotes the absence of a hard and fast rule or a mandatory procedure regardless of varying circumstances.” (Citation omitted; internal quotation marks omitted.) State v. Corchado, 200 Conn. 453, 464, 512 A.2d 183 (1986). Here, although the trial court did state that it rarely extended alimony beyond the life of the payor, its memorandum of decision and articulation show that the court properly considered the circumstances and statutory factors in terminating the survivorship benefit. In light of this, we are not persuaded that the court actually applied such an arbitrary rule here. In marital dissolution matters, “the action of the trial court will not be disturbed unless it abused its legal discretion, and in determining this the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness. ” (Emphasis added.) Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979); see also Knock v. Knock, 224 Conn. 776, 795, 621 A.2d 267 (1993); Rostain v. Rostain, 214 Conn. 713, 716, 573 A.2d 710 (1990); Blake v. Blake, 207 Conn. 217, 229, 541 A.2d 1201 (1988). We do not find an abuse of discretion.

C

The defendant also claims that the trial court failed to consider properly two factors under the property statute because of its view that the survivorship benefit was alimony. Those factors are (1) the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates, and (2) the opportunity of each party for future acquisition of capital assets and income. We are unpersuaded.

In its memorandum of decision, the trial court specifically discussed the factor of the parties’ contributions to the acquisition, preservation and appreciation of their respective estates: the court discussed the monetary contributions of each party, the stock accounts they set up jointly and the withdrawals therefrom. In addition, the court awarded the defendant the IRA in her name notwithstanding that the court could have found that the plaintiff had contributed from $6000 to $10,000 of the $24,137.47 in that account at the time of the dissolution. The court stated that it considered these facts in “arriving at its property division.” Also, at the hearing on September 4, 1992, there was a discussion of the opportunities of each of the parties to acquire income through future employment. The defendant’s interest in a bank account held in trust for her by her daughter is a potential source of income for the defendant.

The only statutory property factor about which there is not a specific discussion, or an award indicating that the factor was considered, is the opportunity of each party for future acquisition of capital assets. The trial court, however, is not required to list and discuss each of the statutory factors. Weiman v. Weiman, supra, 188 Conn. 232. The trial court stated in its articulation that it had considered all of the statutory factors under both of the relevant statutes. Furthermore, the defendant conceded in her brief that neither party is likely to have much opportunity to increase income or assets in the future.

The issues were hotly contested in this case. Each side claimed, and the court found, physical and mental abuse by the other. The parties could not agree on the division of even small household items and the court had to divide all of the property, including washcloths and napkins. “The trial court has the best opportunity to observe the parties, pass on the credibility of witnesses, and weigh and interpret the evidence. ... In this action, the trial court acted within the broad parameters of discretion necessary to arrive at resolutions of the deep seated and often emotionally charged issues inherent in most dissolution actions. . . .We cannot, absent a manifest abuse of discretion, intrude in this intricate process even where we disagree with the result.” (Citation omitted.) Bonelli v. Bonelli, 22 Conn. App. 248, 252, 576 A.2d 587, cert. denied, 216 Conn. 819, 581 A.2d 1054 (1990).

Our review of the record and the transcripts persuades us that the court terminated the survivorship benefit after carefully considering all of the relevant statutory factors. That consideration is apparent on the face of the memorandum of decision. “On appeal, the defendant bears the burden of proving to this court that the trial court did not consider the proper criteria . . . .” Mihalyak v. Mihalyak, 11 Conn. App. 610, 620, 529 A.2d 213 (1987); see also Siracusa v. Siracusa, 30 Conn. App. 560, 567-68, 621 A.2d 309 (1993). The defendant has not carried that burden.

Ill

The defendant’s last claim is that the trial court had a duty to protect the defendant under the rationale of Sweet v. Sweet, 190 Conn. 657, 664, 462 A.2d 1031 (1983), which states that “[t]he court has a duty to shape its orders so that the family, especially those who are economically at risk, are given protection.” The facts of Sweet v. Sweet, supra, 657, are very different from the present facts. In Sweet, the court awarded the family home, which represented about 90 percent of all the family assets, to the plaintiff. The court did so because it was proper to “protect the mother and children by giving them shelter and some financial security for the future.” Id., 664. Here, in contrast, the defendant concedes that, with the exception of the annuity, the parties received “relatively equal shares of the estate.” Such a distribution could hardly be said to violate any duty of the court to protect the defendant.

The defendant’s further argument, that without the annuity she will be at risk of needing public support if she survives the plaintiff, is completely speculative. The defendant is four years older than the plaintiff and may not survive him. Moreover, the evidence of periodic cash gifts to the defendant from her family, the trust fund set up for the defendant by her daughter, and the apparent lack of any need to draw on her IRA, although eligible to do so, indicate that the defendant will probably not need to seek public assistance should she survive the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

       The amount of this account was not stated in the decision. There was testimony at the trial about withdrawals from this account but there was no evidence of the balance.

       General Statutes § 46b-81 (c) provides in relevant part: “In fixing the nature and value of the property, if any, to be assigned, the court . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties and the opportunity of each for future acquisition of capital assets and income. The court shall also consider the contribution of each of the parties in the acquisition, preservation or appreciation in value of their respective estates.”

       General Statutes § 46b-82 provides in relevant part: “At the time of entering the decree . . . the court . . . shall consider the length of the marriage, the causes for the . . . dissolution of the marriage . . . the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate and needs of each of the parties and the award, if any, which the court may make pursuant to section 46b-81 . . . .”

       At the September 4, 1992 hearing on the plaintiff’s motion for clarification and the defendant’s motion for articulation, there was a colloquy between the defendant’s counsel and the trial court. The court acknowledged on the record that it was responding to the motion for articulation. The transcript, however, was not signed. Practice Book § 4059 provides for the filing of a signed transcript of an oral decision. The parties relied on this transcript in their briefs and at oral argument. While we do not condone this deviation from the rules of practice, we may disregard certain procedural irregularities and treat the case as the parties have treated and presented it. We do so here. See, e.g., Lambrakos v. Carson, 174 Conn. 482, 485, 391 A.2d 142 (1978); State v. Beauton, 170 Conn. 234, 237, 365 A.2d 1105 (1976); Fratzel v. Fratzel, 155 Conn. 699, 700, 236 A.2d 83 (1967).

       See footnote 3.

       Title 5 of the United States Code, § 8339 (j) (1) provides in relevant part: “The annuity . . . for an employee . . . who is married at the time of retiring ... is reduced ... in order to provide a survivor annuity for the spouse . . . .”

       Title 5 of the United States Code, § 8339 (j) (5) (A) provides in relevant part: “Any reduction in an annuity for the purpose of providing a survivor annuity for the current spouse of a retired employee . . , shall be terminated . . . (ii) after the dissolution of the spouse’s marriage . . . .”

       Title 5 of the United States Code, § 8341 (h) (1) provides in relevant part: “[A] former spouse of a deceased employee ... is entitled to a survivor annuity under this subsection, if and to the extent expressly provided for ... in the terms of any decree of divorce or annulment or any court order or court-approved property settlement agreement incident to such decree.”

       See footnote 2.

       See footnote 3.

       “The Court: Now, I got the impression in listening to you . . . that any award of alimony which involved his pension would survive his death. I got that impression from you when you were arguing.
      “[Defense Counsel]: Your Honor, I certainly did not intend to give that impression. Your Honor, what I was asking of the court is that the court award the survivorship interest . . . If at any time my arguments or statements implied that that would happen without a court order, I had no intention of making that statement because it doesn’t—
      “The Court: The fact is that I have, except in rare cases where it was agreed to, not extended alimony beyond the death of the payor. In all cases. And I don’t see any reason to do that, even if it’s the United States government that has to make the payment.
      * ** *
      “[Defense Counsel]: And the court did then intend that that would end with his death because—
      “The Court: That is right. Because the court does not and hasn’t — and only, as I say, in rare instances where it’s agreed to — extended it so that the estate becomes liable. Which would be the instance here.”

       The motion for clarification asked whether the court intended for the contingencies of death, the defendant’s remarriage, or cohabitation to apply to the alimony award. The motion for articulation asked whether the court intended to deny the defendant the pension annuity and asked for the weight given to certain statutory factors under General Statutes §§ 46b-81 (c) and 46b-82.

       “The Court: Well, if you can clear it up for me before the case ends because as near as I can make out, that if he passes on before her and doesn’t make her his spousal recipient then she gets nothing.
      “[Plaintiff’s Counsel]: That’s correct, Your Honor.
      “[Defense Counsel]: We’re talking about two different things.

      “The Court: I understand.
      “[Defense Counsel]: I think that makes clear the survivorship but there’s also the question of the pension itself.

      “The Court: However the pension itself would go to nobody if she didn’t remain as the spousal nominee.
      “[Defense Counsel]: That’s correct.” (Emphasis added.)

       A decision as to whether a pension benefit is property may well be necessary when a marriage is dissolved in a community property state as illustrated in Valdez v. Ramirez, 558 S.W.2d 88 (Tex. 1977), rev’d on other grounds, 574 S.W.2d 748 (Tex. 1978). In that case the court held that a survivorship pension, under the same federal statutes involved here, was indeed community property. Id., 93.

       General Statutes § 46b-81 (c), set forth in footnote 2.

       “The Court: — There isn’t any question that the plaintiff’s . . . employ-ability is in like measure to that of the defendant who has had a succession of jobs. The court gave weight to both of their employabilities, realizing, of course, that she’s — neither one of them is a youngster, and employment doesn’t come easily, and so that it accepted at this time neither one is employed. And so on that basis, the decision was rendered.”


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    Myroslaw Dragan v. Connecticut Medical Examining Board et al.
    (7878)
    Dupont, C. J., O’Connell and Heiman, Js.

      Argued September 14, 1993
    decision released May 10, 1994

      Henry Saltón, assistant attorney general, with whom were Paul J. Lahey, assistant attorney general, and on the brief, Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellants-appellees (defendants).

      Wesley W. Horton, with whom, on the brief, were Susan M. Cormier and Christy L. Scott, legal intern, for the appellee-appellant (plaintiff).
   O’Connell, J.

This administrative appeal is before us on remand from the Supreme Court. The plaintiff is a physician licensed to practice medicine in Connecticut and the defendants are the Connecticut department of health services (department) and the Connecticut medical examining board (board). Both defendants are state agencies within the meaning of the Uniform Administrative Procedure Act (UAPA). General Statutes § 4-166 et seq.

The plaintiff’s prolonged journey through the legal system commenced in May, 1983, when the board, on motion of the department, brought charges against him and summarily suspended his medical license pursuant to General Statutes §§ 4-182 (c) and 19a-17 (c). The charges pertain to the plaintiff’s treatment of a patient for drug addiction. License revocation hearings commenced on June 1, 1983, and continued on June 7, 1983, August 2, 1983, August 28, 1984, and culminated in a board meeting on October 23, 1985, when the board voted to revoke the plaintiff’s license.

The plaintiff appealed the board’s decision to the Superior Court which reversed the decision and remanded the case to the board for a new hearing. The defendants appealed to this court. We considered the case in Dragan v. Connecticut Medical Examining Board, 24 Conn. App. 662, 591 A.2d 150 (1991), wherein we affirmed the trial court’s decision that the plaintiff had been denied his right to cross-examine the board’s chief witness and had also been denied discovery of witnesses’ prehearing statements. Because we believed those issues dispositive of the appeal, we did not reach the defendants’ remaining appellate claims or the plaintiff’s cross appeal.

The Supreme Court granted certification and reversed this court’s decision, concluding that the plaintiff had waived his right of cross-examination as well as his right to challenge the nondisclosure of witnesses’ prior statements. Dragan v. Connecticut Medical Examining Board, 223 Conn. 618, 613 A.2d 739 (1992). The Supreme Court remanded the case to this court to consider the sole remaining issue in the defendants’ appeal and the issues in the plaintiff’s cross appeal. Id.

Appeal

The defendants claim that the trial court, in remanding the case for a new hearing, improperly held that the board was required to indicate either in its minutes or in its memorandum of decision that voting members who had not heard the case had nonetheless familiarized themselves with the record. We reverse the decision of the trial court and remand the case for further proceedings.

The following facts are necessary for disposition of this issue. The board received evidence at hearings on June 1,1983, June 7,1983, and August 28,1984. Sometime after the last hearing, the board referred the matter to Assistant Attorney General Paul J. Lahey to prepare a memorandum of decision. On October 23, 1985, the board met and voted to accept the memorandum of decision that Lahey had prepared. Only four board members were present and voting at this meeting. Of these four, only the board chairman, Henry J. Mannix, Jr., had attended all four hearings. Shirley Y. Williams missed the August 28,1984 hearing. Joan H. Blakeslee missed the August 2, 1983 hearing and Harvey A. Katz missed all three of the 1983 hearings. The record does not indicate whether Williams, Blakeslee and Katz, pursuant to General Statutes (Rev. to 1983) § 4-179, read the record of the hearings they missed or otherwise familiarized themselves with the evidence that was received in their absence.

Our Supreme Court recently decided Pet v. Dept. of Health Services, 228 Conn. 651, 638 A.2d 6 (1994), which involved the identical question of voting by board members who had not attended all of the board hearings. In Pet, the Supreme Court concluded, on facts virtually identical to those of the present case, that the record did not disclose “whether the board was sufficiently familiar with the record of [the case] to make an informed judgment in compliance with § 4-179. The trial court, therefore, lacked any basis for determining whether the board had complied with the mandates of the UAPA.” (Emphasis in original.) Id., 682. Consequently, the Supreme Court remanded Pet to the trial court for supplementation of the record.

The trial court record in this case, as in Pet, is silent as to whether the board members properly apprised themselves of the administrative record so as to fulfill their duties under the UAPA. On the basis of the record’s silence, the trial court remanded the case to the board for a new hearing, concluding that the plaintiff was “entitled to a clear showing by the board, either in the minutes of the meeting or its memorandum decision that all members voting on the decision . . . had read the record of the case prior to voting on it.” Under the ruling of Pet, the trial court’s remand to the board for a new hearing in this case was premature. Pet instructs that the trial court must first supplement the record in order to provide a basis for determining the issue of whether the board members had sufficiently familiarized themselves with the record. Accordingly, we reverse the judgment of the trial court and remand the case to the trial court for further proceedings consistent with this opinion.

Cross Appeal

The plaintiff raises the following issues in his cross appeal: (1) Does the board have the burden of proving that the missing portion of the administrative record was harmless? (2) Should the trial court have permitted the plaintiff to introduce additional evidence? (3) Was the evidence sufficient to find the plaintiff guilty of the charges made against him?

The following facts are necessary to the disposition of the first issue. On the plaintiffs appeal from the board’s decision, the board made its return of record to the Superior Court in accordance with General Statutes (Rev. to 1983) § 4-183 (d). Because the board’s return of record did not contain at least seven exhibits entered into evidence during the license revocation hearing, the plaintiff moved for default. The trial court denied this motion. Thereafter, the board, with the cooperation of plaintiff’s counsel, received copies of six of the seven exhibits missing from the record. The lone missing exhibit, which neither of the parties could find or reconstruct, contained the plaintiff’s handwritten notes relating to his treatment of Collette Conor, the person who provided the basis for the charges brought against the plaintiff. The plaintiff argues that the board has the burden of proving that the missing exhibit did not prejudice his case.

Pet is helpful in the disposition of this issue. In Pet, the plaintiff alleged that the administrative record on which the board voted was incomplete because of missing exhibits. Pet concluded that without further evidence concerning the missing exhibits, the trial court could not determine their impact on the board’s decision. In this case, the record does not reveal when the exhibit was lost. Accordingly, we do not know whether “the importance and timing of the loss of the records impacted on the board’s ability to be fully informed of the issues before it . . . .” Id., 682. In light of the exhibit’s potential importance and in the absence of an explicit finding by the trial court that the missing exhibit did not impact the board’s decision, we remand the case to the trial court for supplementation of the record on this issue.

In his second claim, the plaintiff argues that he should have been allowed to present additional evidence before the trial court concerning a witness’ board certification and two prescriptions written by that witness that might have contradicted the witness’ testimony. We note the holding of Pet that “a license to practice medicine is a recognized property right and may only be revoked under procedures that comport with constitutional due process of law. . . . [Wjhen the government seeks to deprive a person of life, liberty or property, [due process requires] that the thoroughness of the procedure by which the deprivation is effected must be balanced against the gravity of the potential loss and the interests at stake, and . . . that the procedure involved must be appropriate to the nature of the case. ...” (Citations omitted; internal quotation marks omitted.) Id., 682-83. We conclude that because of the gravity of the potential loss to the plaintiff in this case, the trial court should have allowed the plaintiff to present his additional evidence. We agree with the reasoning of Pet that “because of the potentially crucial impact of the plaintiff’s claims of procedural irregularities on the propriety of the board’s decision, we conclude that the trial court abused its discretion in denying the plaintiff the opportunity to present evidence that would supplement the agency record.” Id., 684.

Until the trial court has conducted the proceedings required under our remand, it would be premature for us to examine the record in an attempt to determine whether there was a substantial basis to support the defendant’s decision. Accordingly, we do not reach the plaintiff’s third claim on his cross appeal.

The judgment is reversed on both the appeal and the cross appeal and the case is remanded to the trial court to allow supplementation of the record and for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       General Statutes § 4-182 (c) provides: “No revocation, suspension, annulment or withdrawal of any license is lawful unless, prior to the institution of agency proceedings, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention of the license. If the agency finds that public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.”
      General Statutes § 19a-17 (c) provides: “[The Connecticut medical examining board or the department of health services] where appropriate may summarily suspend a practitioner’s license or permit in advance of a final adjudication or during the appeals process if such board or commission or the department finds that a practitioner or permittee represents a clear and immediate danger to the public health and safety if he is allowed to continue to practice.”

       At the August 2, 1983 hearing, the board permitted the plaintiff to resume practicing medicine subject to limitations and conditions that are not relevant here. Further stays have allowed the plaintiff to remain in practice until the present time. See Dragan v. Connecticut Medical Examining Board, 24 Conn. App. 622, 669-70, 591 A.2d 150 (1991).

       The minutes of the meeting of October 23 regarding this matter read: “Myroslaw Dragan, M.D. - Presentation of Memorandum of Decision by Assistant Attorney General Paul J. Lahey. Attorney Katz made a motion to accept the Decision. Dr. Williams seconded the motion. All Board members present voted in favor of the motion with Attorney Clarke abstaining. Dr. Mannix signed the Memorandum of Decision.”

       No evidence was taken at the August 2, 1983 hearing. Rather, the plaintiff requested and received a stay of the license revocation proceeding until the resolution of the criminal charges brought against him. Dragan v. Connecticut Medical Examining Board, supra, 223 Conn. 624-25.

       The members present during the hearings and final board meeting were:
      Date Members Present
      June 1, 1983 hearing Mannix (Chairman) Savary McLeod Williams Blakeslee
      June 7, 1983 hearing Mannix (Chairman) Savary McLeod Williams Blakeslee
      August 2, 1983 hearing Mannix (Chairman) Savary McLeod Williams

        August 28, 1984 hearing Mannix (Chairman) McLeod Blakeslee Katz Spackman
      October 23, 1985 board meeting Mannix (Chairman) Williams Blakeslee Katz Clarke (abstaining)

       General Statutes (Rev. to 1983) § 4-179 provides: “When in a contested case a majority of the officials of the agency who are to render the final decision have not heard the case or read the record, the decision, if adverse to a party to the proceeding other than the agency itself, shall not be made until a proposal for decision is served upon the parties, and an opportunity is afforded to each party adversely affected to file exceptions and present briefs and oral argument to the officials who are to render the decision. The proposal for decision shall contain a statement of the reasons therefor and of each issue of fact or law necessary to the proposed decision, prepared by the person who conducted the hearing or one who has read the record. The parties by written stipulation may waive compliance with this section.”

       Board members Savary, McLeod and Spackman were present on various dates when evidence was received but did not participate in the final vote or decision.

       Because we hold that the trial court must supplement the record in an effort to develop an adequate basis to determine whether the board members sufficiently familiarized themselves with the record, we need not decide whether the trial court, in granting a new hearing, improperly held that the plaintiff is entitled to an affirmative showing by the board that its voting members had read the record.

       General Statutes (Rev. to 1983) § 4-183 (d) provides: “Within thirty days after the service of the petition, or within such further time as may be allowed by the court, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceedings appealed from, which shall include the agency’s findings of fact and conclusions of law, separately stated. . . . The court may require or permit subsequent corrections or additions to the record.”


text:
    Nelseco Navigation Company et al. v. Department of Liquor Control
    (10121)
    Dupont, C. J., O’Connell and Lavery, Js.
    Submitted on briefs October 26, 1993
    decision released May 17, 1994

      Richard E. Grushin filed a brief for the appellants (plaintiffs).

      Richard Blumenthal, attorney general, and Martin Rosenfeld and Robert Vacchelli, assistant attorneys general, filed a brief for the appellee (defendant).
   O’Connell, J.

This matter is now before us on remand from the Supreme Court. Previously, in Nelseco Navigation Co. v. Dept. of Liquor Control, 27 Conn. App. 614, 608 A.2d 707 (1992), we concluded that the defendant department of liquor control did not have jurisdiction over a private party on premises covered by a liquor permit when there was no sale or delivery of liquor by the permittee or its agent. The Supreme Court granted certification, reversed our judgment and remanded the case to this court for consideration of other issues raised by the plaintiffs. Nelseco Navigation Co. v. Dept. of Liquor Control, 226 Conn. 418, 627 A.2d 939 (1993).

The facts are set forth in full in our prior decision and a detailed repetition here would serve no useful purpose. A brief summary is sufficient for this appeal. The defendant suspended the plaintiffs’ boat liquor permit because it found that the plaintiff had permitted intoxicated persons to loiter on the premises and had permitted “a disturbance, brawl, unnecessary noises and unlawful conduct upon the permit premises and permitted it to be conducted in such a manner as to constitute a nuisance.” The charges arose out of a private charter of the plaintiffs’ ship, the Anna C., for a rock concert, during the course of which the unlawful conduct was found to have taken place. The plaintiffs appealed the defendant’s decision to suspend the plaintiffs’ boat liquor permit to the Superior Court, which affirmed the defendant’s decision and dismissed the appeal.

I

We commence by noting the standard of review applicable to this case. The plaintiff brought this administrative appeal to the trial court pursuant to General Statutes § 4-183 (a). In reviewing an administrative decision, it is not the function of the trial court to retry the case. The court is forbidden by statute from substituting its judgment for that of the agency as to the weight of the evidence on questions of fact. General Statutes § 4-183 (j). The question before the trial court is not whether it would have reached the same conclusions but whether the record before the agency supports the action taken. Altholtz v. Dental Commission, 4 Conn. App. 307, 310, 493 A.2d 917 (1985).

“The substantial evidence rule governs judicial review of administrative factfinding under ... § 4-183 (g). . . . An administrative finding is supported by substantial evidence if the record affords a substantial basis of fact from which the fact in issue can be reasonably inferred. . . . Such a standard of review allows less room for judicial scrutiny than does the weight of the evidence rule or the clearly erroneous rule. ... In determining whether an administrative finding is supported by substantial evidence, a court must defer to the agency’s assessment of the credibility of the witnesses and to the agency’s right to believe or disbelieve the evidence presented by any witness . . . .’’(Internal quotation marks omitted.) Connecticut Building Wrecking Co. v. Carothers, 218 Conn. 580, 593, 590 A.2d 447 (1991).

“When reviewing the trial court’s decision, we seek to determine whether it comports with the Uniform Administrative Procedure Act. ... We look to see if the [trial] court reviewing the administrative agency acted unreasonably, illegally, or in abuse of discretion.” (Citation omitted; internal quotation marks omitted.) Vicino v. Zoning Board of Appeals, 28 Conn. App. 500, 506-507, 611 A.2d 444 (1992). The trial court’s decision must be affirmed unless we find that substantial rights of the plaintiffs have been prejudiced because the administrative findings, inferences, conclusions or decisions are, inter alia, clearly erroneous in view of the reliable, probative and substantial evidence in the whole record. General Statutes § 4-183 (j) (5). We conclude that the trial court, in affirming the defendant’s decision and dismissing the appeal, improperly determined that there was reliable, probative, or substantial evidence on the record to support the defendant’s decision.

II

We turn first to the two charges of permitting intoxicated persons to loiter on the permit premises. Words are to be construed according to their commonly approved usage. General Statutes § 1-1 (a). “The word loitering is in common use. Webster defines [loiter]: to be slow in moving; to delay; to linger; to be dilatory; to spend time idly; to saunter; to lag behind.” (Internal quotation marks omitted.) State v. Tobin, 90 Conn. 58, 62, 96 A. 312 (1915).

The first charge of loitering involved an unconscious young female who was taken to a hospital by paramedics. Assuming arguendo that the young woman really was intoxicated, we are unable to conclude that the failure of an unconscious person to move constitutes loitering. Accordingly, there was no evidence to support the defendant’s conclusion with respect to that loitering charge.

In connection with the second charge of permitting intoxicated persons to loiter on the premises, we ask: where were they to be ordered to go? We commence our analysis by noting that the permit premises was a ship at sea. It was not a neighborhood bar from which offenders could easily be ejected. In this situation, the equivalent of immediate ejection from the premises would be dropping the miscreants overboard. This modern version of forcing the offenders to walk the plank is obviously more bizarre than even the staunchest supporters of strict liquor law enforcement could ask.

The record discloses that the two most disruptive and intoxicated individuals were locked in the men’s room and the ship’s captain immediately turned the ship around and brought it back into port in order that they might be turned over to the police. Nelseco v. Dept. of Liquor Control, supra, 27 Conn. App. 617. In port, the local (New London) police were invited aboard and, despite observing the passengers in varying degrees of sobriety, made no arrests other than the two serious offenders.

Furthermore, although the word loiter generally has a pejorative connotation, we must consider it in the setting of this cruise. The passengers had paid admission for passage on this rock concert cruise, the very purpose of which was to afford passengers an opportunity to relax, linger and stand around while listening to the music. To find that the passengers on this ship were loitering would mean that patrons of all concerts are loitering. We will not extend the definition of loitering that far. The record discloses no facts to support the conclusion that any intoxicated persons were bitering.

Under the circumstances existing at the time of the alleged violation, the defendant may have properly concluded that some of the passengers were intoxicated, but there is no evidence from which the defendant could have concluded that they were loitering.

Ill

We next consider the charge that the plaintiffs permitted a “disturbance, brawl, unnecessary noises, unlawful conduct upon the premises and did permit the premises to be conducted in such a manner as to constitute a nuisance.”

The transcript discloses that the Anna C. was not the scene of the bacchanalian orgy and battle that the defendant would have us believe. Of the estimated 1000 to 1500 passengers, witnesses estimated that between fifteen and “more than twenty” were involved in a commotion. The trouble was caused by Gary Linkner and William Linkner, two very violent and badly behaving brothers. It is not disputed that the Linkner brothers ran amok throughout the ship, assaulting passengers, urinating on two of them and attempting to touch one or more women in a vulgar and obscene manner. It is not surprising that the Linkners’ abusive conduct generated chaos, a disturbance of the peace and pushing and shoving. Security personnel, however, had the situation in hand in five minutes at most when they locked the Linkners in the men’s room. The record discloses no further tumultuous activity once the Linkners were removed from circulation nor does it disclose that anyone was assaulted by anyone other than the Linkners.

The issue is whether the plaintiffs “permitted” the conduct to take place and thereby “permitted” the premises to be conducted in such manner as to constitute a nuisance. The defendant found that the plaintiffs did “permit” the conduct to take place and the trial court affirmed the defendant’s decision.

The facts and inferences that may be drawn from the evidence in the present case do not support a conclusion that the plaintiffs “permitted” the conduct to take place and thereby “permitted” the premises to be conducted in such manner as to constitute a nuisance. To the contrary, the evidence shows that the plaintiffs, through the onboard security personnel, took swift and positive action to squelch the disturbance. Once the disturbance was stopped, the plaintiffs, acting through the ship’s captain, returned the vessel to port for the purpose of removing the Linkners from the ship. What more could reasonably have been done?

The defendant contends that there is no fact presented in the record that supports the plaintiffs’ argument that the ship’s security personnel acted quickly to deal with the situation. This ignores the testimony of Sarah Gallagher that the security guards responded quickly and effectively to her complaint and confronted the Linkner brothers. It also ignores the testimony of Laura Derwin that the disturbance was of short duration “because security guards got them and locked them in the [men’s room].”

The defendant argues that the security personnel were not capable of controlling a large and potentially unruly crowd. This conjecture ignores the fact that a problem did arise and the regular security force, augmented by security personnel provided by the charter group, proved more than adequate to meet the needs of the situation.

A statement by Sergeant John Mattson of the New London police department concerning the number of security personnel controlling the situation is of little value. First, Mattson admitted that he did not know how many security personnel were onboard and then opined that they were insufficient in number to control the ship. This opinion is contradicted by the testimony, set forth above, of the ship’s passengers. Mattson also testified that he did not think the ship should return to sea. Despite his opinion, Mattson made no attempt to prevent the ship from resuming its cruise. No other disturbances were reported once the Linkners were expelled from the Anna C.

Second, Mattson describes the passengers with a peculiar use of the word “disorderly.” He testified that “they were not disorderly in the sense that they were angry, but disorderly because most of them seemed to be happy.” He describes the passengers as boisterous, but happy. Mattson also testified that the Linkner brothers’ expulsion from the ship elicited a round of applause from the remaining passengers, indicating that the passengers were happy that the “disorderly” persons had been removed.

We conclude having considered the record as a whole and the inferences that may reasonably be drawn therefrom that there was not substantial evidence to support the defendant’s finding that the plaintiffs permitted a disturbance, brawl, unnecessary noises, and unlawful conduct on the premises and permitted the premises to be conducted in such a manner as to constitute a nuisance. The plaintiffs’ liquor permit should not, therefore, have been suspended. In light of this conclusion, we need not address the plaintiffs’ other claim on appeal.

The judgment of the trial court dismissing the appeal is reversed and the case is remanded with direction to render judgment sustaining the appeal.

In this opinion the other judges concurred.

       These issues are (1) whether the defendant acted arbitrarily in suspending the plaintiffs’ liquor permit after finding that the plaintiffs had violated § 30-6-A24 (a) and (c) of the Regulations of Connecticut State Agencies and (2) whether the plaintiffs’ due process rights were violated because of the vagueness of the foregoing regulations.

       General Statutes § 4-183 (a) provides in pertinent part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. . . .”

       The evidence showed that the unconscious female had one drink at most while on the ship and remained hospitalized for at least three days. In its findings, the defendant stated that the female’s condition was such that the police were unable to get a statement from her until “several days” after the incident. We may infer from her prolonged hospital stay that she was unconscious from causes other than intoxication. The defendant did not introduce hospital records to support its claim that she was intoxicated when she was taken off the ship.

       “The ship’s capacity was 1600 persons. No evidence of the exact number of the passengers on the cruise was offered, nor was there evidence of the number of tickets sold. The 1000 to 1500 passenger figure stems from testimony of witnesses whose qualifications to make accurate estimates of this type were not established.” Nelseco Navigation Co. v. Dept. of Liquor Control, supra, 27 Conn. App. 617 n.6.

       The notice of decision issued by the defendant included the following finding, which shows that no one other than the Linkner brothers was the source of any trouble on the ship. “Laura Derwin, Lisa Grady, Sarah Gallagher, and Anthony Partridge all testified to being on the boat for a period of one hour or more. A fight broke out on the boat which involved more than ten persons. Two brothers named Linkner were involved in the fight and both appeared to be very intoxicated in that they were staggering around and slurring their speech. Grady saw one of the brothers throw a can of beer. Things became so bad on the boat that the brothers had to be locked in the men’s room and the boat had to return to shore to have the police remove the trouble makers.”

       Laura Derwin’s testimony regarding the altercation included the following:
      “Q. Did you witness an incident that involved the Linkner brothers?
      “A. Yes.
      “Q. Please tell us where that happened.
      “A. We weren’t standing around the band; we were away from the band and they just — it was a fight.
      “Q. Do you know what started the fight?
      “A. Yes. [The Linkner brothers] were harassing people.
      “Q. How many people became involved in the fight?
      “A. A lot.
      “Q. Would you say more than ten?
      “A. Yes.
      “Q. More than twenty?
      “A. I don’t know; there was a lot of people there.
      “Q. Was it a fight that lasted for long?

      “A. No, because they broke it up; the security guards got them and locked them in the place. ” (Emphasis added.)

         Although the recitation of facts in the defendant’s brief refers to such a recommendation, it was apparently based on part of the charges brought by the defendant against the plaintiffs. There was no finding in regard to such a recommendation. At best, the record indicates that Mattson told someone that he felt the cruise should not continue, but he was sure that this comment was not relayed to the ship’s captain. This is not surprising because Mattson was not sure whether the man to whom he made the comment was an employee of the ship or a pier hand with no connection to the ship. We note that footnote 9 of our earlier decision was in error in characterizing this comment as a finding. See Nelseco Navigation Co. v. Dept. of Liquor Control, supra, 27 Conn. App. 617 n.9.


author: Lavery, J.

text:
    Sherry Minton v. Jon Krish
    (12408)
    Dupont, C. J., Lavery and Schaller, Js.
    Argued February 14
    decision released May 17, 1994

      Richard E. MacLean, with whom, on the brief, was Thomas Parrino, for the appellant (plaintiff).

      Robyn L. Sondak, for the appellant (intervening plaintiff Capital Cities, Inc.).

      Patrice S. Noah, for the appellee (defendant).
   Lavery, J.

This appeal arises from injuries suffered by the plaintiff, an employee of Capital Cities, Inc., known as ESPN. In 1988, ESPN hired the defendant, Jon Krish, to install a sliding glass door at the entrance to one of its video screening rooms. The defendant completed the installation and was paid for his work by early January, 1989. On May 15, 1989, while in the course of her employment, the plaintiff tripped on the track of the door, fell, and was injured.

The plaintiff brought a negligence action against the defendant. The defendant moved for summary judgment, claiming that he was immune from negligence liability because the injury had occurred after the work had been completed and the owner, ESPN, had accepted control. The plaintiff and ESPN opposed the motion, arguing that this rule was no longer the law in Connecticut. The trial court ruled in favor of the defendant and granted summary judgment. This appeal resulted.

Traditionally, an independent contractor was immune from liability in negligence to a third person once the contractor’s work was completed and accepted by the owner. Bogoratt v. Pratt & Whitney Aircraft Co., 114 Conn. 126, 141-42, 157 A. 860 (1932). “[Wjhere the work of an independent contractor is completed, turned over to, and accepted by the owner, the contractor is not liable to third persons for damages or injuries subsequently suffered by reason of the condition of the work, even though he was negligent in carrying out the contract.” Id., 142. This doctrine has been referred to as the “completed and accepted” rule. See R. A. Civitello Co. v. New Haven, 6 Conn. App. 212, 224, 504 A.2d 542 (1986).

Our Supreme Court first referred to the rule in Howard v. Redden, 93 Conn. 604, 612, 107 A. 509 (1919). In Redden, the court adopted a rule of proximate cause holding that a contractor was not liable to a passerby injured when struck by a faulty cornice built by the contractor. Id. The court stated that the injury, which occurred after the contractor had completed the work, was due solely to the owner’s failure to inspect and guard against the cornice’s deterioration. Id., 608. The court analogized to the completed and accepted rule for support. Id., 612-13.

Generally, three reasons support the completed and accepted rule. First, the rule was the offspring of Winterbottom v. Wright, 152 Eng. Rep. 402 (1842), and the application of the doctrine of privity to cases in negligence. W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 104A; 4 S. Speiser, C. Krause & A. Gans, American Law of Torts (1987) § 15:116; see Howard v. Redden, supra, 93 Conn. 611-12. Although the contractor remained liable to the owner through privity after completion and acceptance of the work, the contractor’s liability did not extend to third persons.

Redden quotes with approval an example given in Wharton’s treatise on negligence demonstrating the application of privity in negligence: a bridge contractor will not be liable to an injured traveler for its negligence after the city has accepted the bridge. Howard v. Redden, supra, 93 Conn. 612, citing F. Wharton, Negligence (2d Ed. 1878) § 438, p. 368. Wharton explains that the contractor owes the traveler no duty because “[t]he traveller reposed no confidence on the contractor, nor did the contractor accept any confidence from the traveller.” (Internal quotation marks omitted.) Howard v. Redden, supra. The city intervened and broke the “causal connection.” Id.

It is instructive that this example appears in Wharton’s chapter on negligence based in contract. Moreover, Wharton’s reference to confidence mirrors his explanation two pages earlier in which he establishes that “ ‘[t]he confidence induced by undertaking any service for another is a sufficient consideration to create a duty in the performance of it.’ ” F. Wharton, supra, § 437. Thus, without consideration to support contractual duty, there was no duty. Wharton’s example and his theory were based in privity; our Supreme Court adopted the rule and the reasoning in Redden. See Howard v. Redden, supra, 93 Conn. 612.

The second reason behind the rule was control. The contractor was shielded from liability upon completion because the owner alone was in control of the entity when the injury occurred. Id., 613. “By occupying and resuming possession of the work, the owner deprives the contractor of all opportunity to rectify his wrong.” (Internal quotation marks omitted.) Id. This is consistent with the fundamental proposition that one in actual possession and control is chargeable with injuries while in possession and control. Trainor v. Frank Mercede & Sons, Inc., 152 Conn. 364, 368-69, 207 A.2d 54 (1964).

The third reason behind the rule was a presumption that the owner had carefully inspected the work and knew of its defects. “[I]f [the owner] takes it in the defective condition, he accepts the defects and the negligence that caused them as his own, and thereafter stands forth as their author.” (Internal quotation marks omitted.) Howard v. Redden, supra, 93 Conn. 613.

Our Supreme Court’s holding in Coburn v. Lenox Homes, Inc., 173 Conn. 567, 378 A.2d 599 (1977), is inconsistent with the completed and accepted rule. In Coburn, a contractor was held liable to an injured third party even though the contractor’s negligent work had been completed and accepted. Id., 574. Although the Coburn court did not directly address the completed and accepted rule, its holding is incompatible with the continued viability of the rule. Although Chief Justice House observed in his dissent that the facts of the case warranted application of the rule, the majority neither followed nor distinguished the rule. The holding, however, is clear: a contractor can be held liable for his negligence even after his work has been completed and accepted. Id., 575-76.

The Coburn court also rejected the reasoning behind the rule. First, the court noted the revolution in the law of negligence, sparked by MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), that rejected privity from negligence doctrine. Coburn v. Lenox Homes, Inc., supra, 173 Conn. 574. The court recited the general rule that a seller of a product is liable for negligence that foreseeably injures another. Id., 575. “[T]he requirement of privity should only be applicable to actions growing out of contract theory and should be irrelevant to tort actions.” Id., 574.

Second, the court implicitly rejected the theory of control. See id., 575. The contractor in Cobum had completed his work two years before the plaintiffs bought the house and five years before he was held liable for his negligence. Although the contractor had been denied the opportunity to rectify his wrong, the contractor was held liable for his negligence.

Third, Coburn repudiated the theory of knowledge and acceptance that supported the rule. Analogizing to MaePherson again, the court stated that an owner would no longer be charged with knowledge and acceptance of a contractor’s negligence. Id., 575. “ ‘[T]he ordinary person buying such a house is in no better position to discover hidden dangers caused by the negligent construction than is the purchaser of a defective bottle of perfume . . . ” Id. Rather, “a duty to use care is found in the foreseeability that harm may result if it is not exercised.” Id.

Eleven years later, our Supreme Court reviewed Coburn and obser/ed that the MacPherson rule of privity had been abolished in negligence cases involving contractors. Zapata v. Burns, 207 Conn. 496, 516-17, 542 A.2d 700 (1988). The court went on to quote Prosser on the current state of the law: “ ‘It is now the almost universal rule that the contractor is liable to all those who may foreseeably be injured by the structure, not only when he fails to disclose dangerous conditions known to him, but also when the work is negligently done. This applies not only to contractors doing original work, but also to those who make repairs, or install parts, as well as supervising architects and engineers. There may be liability for negligent design, as well as for negligent construction.’ W. Prosser & W. Keeton, Torts (5th Ed.) § 104A, p. 723.” Id., 517. Albeit in dicta, Zapata makes clear that our Supreme Court had adopted the rule of foreseeability in place of the rule of privity. See id.

This court shared that view in R. A. Civitello v. New Haven, supra, 6 Conn. App. 224, in which it observed that the “completed and accepted” rule was dead. The court noted Coburn’s effect on the rule and recited the new rule of foreseeability. Id., 224-25.

In rejecting the “completed and accepted” rule, our courts join the majority of jurisdictions. W. Prosser & W. Keeton, supra, § 104A; annot., 58 A.L.R.2d 891 (1958) (listing jurisdictions that have rejected the rule). We conclude that the “completed and accepted” rule has been repudiated in Connecticut and replaced with the rule of foreseeability as expressed in 2 Restatement (Second), Torts § 385 (1965): “One who on behalf of the possessor of land erects a structure or creates any other condition thereon is subject to liability to others upon or outside of the land for physical harm caused to them by the dangerous character of the structure or condition after his work has been accepted by the possessor, under the same rules as those determining the liability of one who as manufacturer or independent contractor makes a chattel for the use of others.”

In light of this conclusion, the trial court’s ruling in favor of the defendant on its motion for summary judgment must be reversed. The defendant’s liability is not precluded by the fact that his work had been completed and accepted. Rather, his liability hinges on foreseeability of injury to the plaintiff.

The judgment is reversed and the case is remanded for further proceedings.

In this opinion the other judges concurred.

       ESPN intervened as a plaintiff seeking reimbursement of related workers’ compensation expenses.

       In this famous case, a negligent contractor was shielded from liability for resulting third party’s injuries because the contractor and third party were not in privity of contract. “If we were to hold that the plaintiff could sue in such a case, there is no point at which such actions would stop. The only safe rule is to confine the right to recover to those who enter into the contract .... [I]t is, no doubt, a hardship upon the plaintiff to be without a remedy, but by that consideration we ought not to be influenced. Hard cases, it has been frequently observed, are apt to introduce bad law.” Winterbottom v. Wright, supra, 152 Eng. Rep. 405-406.

       The Coburn decision uses the holding of Scribner v. O’Brien, Inc., 169 Conn. 389, 363 A.2d 160 (1975), as a starting point. Coburn v. Lenox Homes, Inc., supra, 173 Conn. 574. In Scribner, a contractor was held liable to the owner for his negligent work because the parties were in privity. Scribner v. O’Brien, Inc., supra, 400. Cobum built on MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), to conclude that privity is irrelevant in tort actions and extends contractor liability to those not in privity. Coburn v. Lenox Homes, Inc., supra, 574.

       The defendant argues that Coburn does not affect the “completed and accepted” rule because Cobum refers to “builder-vendor” liability while the rule applies to “independent contractors.” This distinction is meaningless. The term independent contractor is used to differentiate from an employee. See Spring v. Constantino, 168 Conn. 563, 573, 362 A.2d 871 (1975). Whether called a building vendor or independent contractor, the important characteristic remains the same: one who contracts to do work according to his own methods without control of the employer except as to the result. Id. It is clear that Coburn related to this category.

       The defendant argues that Cobum should be held strictly to its facts. Our Supreme Court has refused to do so, however, as seen in Zapata v. Burns, 207 Conn. 496, 542 A.2d 700 (1988). In Zapata, the court analogized to Coburn to explain the logical extension of MaePherson to architects and engineers. Id., 516-17. The court’s discussion refers generally to contractors and makes no special reference to builder-vendors. Id.