text:
    Clinton Rowe v. Raymond Godou et al.
    (5710)
    Dupont, C. J., Borden and Bieluch, Js.

      Submitted on briefs September 14
    decision released November 3, 1987

      Bruce L. Levin filed a brief for the appellant (plaintiff).

      David Noel Feliu filed a brief for the appellees (defendants).
   Bieluch, J.

The plaintiff brought this action seeking to recover for property damage to his vehicle allegedly caused by the negligent operation by the named defendant, Raymond Godou, of a fire truck owned by the defendant city of Bridgeport. The defendants moved to strike the complaint on the ground that it was “barred by statute,” but they failed to cite statutory authority. In support of their motion, the defendants filed a memorandum of law which referred to General Statutes § 7-308. The trial court granted the defendants’ motion to strike on the grounds that the notice requirements of General Statutes § 7-308 were not alleged, and that the plaintiff failed to plead a distinct legal theory against the defendant city of Bridgeport. The plaintiff has appealed from the subsequent judgment rendered on the motion to strike. We find no error.

The plaintiffs initial claim is that the motion to strike filed by the defendants was itself fatally flawed because it did not comply with Practice Book §§ 154 and 109A. Specifically, the plaintiff claims that the motion failed “distinctly [to] specify” the reasons for the claimed insufficiency of the plaintiffs complaint as required by Practice Book § 154, and did not specifically identify by number the statute upon which it was grounded in violation of Practice Book § 109A. We do not agree with the plaintiffs analysis of either rule of practice.

A general statement contained in a motion to strike that the complaint does not state a claim upon which relief can be granted is usually insufficient to comply with Practice Book § 154. Morris v. Hartford Courant Co., 200 Conn. 676, 683 n.5, 513 A.2d 66 (1986). Nevertheless, a motion to strike which is unspecific, but which adequately submits the material issue to the court, as is the case here, is sufficient to comply with Practice Book § 154. The statement in the defendants’ motion to strike that the plaintiff’s action was “barred by statute” was arguably unspecific, but did sufficiently apprise the court of the reasons for the claimed insufficiency of the plaintiff’s complaint.

As to the second portion of the plaintiff’s first claim, Practice Book § 109A provides that when any claim made in a pleading is grounded on a statute, “the statute shall be specifically identified by its number.” The defendants’ motion to strike did not identify General Statutes § 7-308 as the basis for their claim that the plaintiff’s action was “barred by statute.” We conclude that the requirement of Practice Book § 109A is directory, rather than mandatory. Therefore, we find that the defendants’ motion did not violate its terms.

“ ‘The test to be applied in determining whether a statute is mandatory or directory is whether the prescribed mode of action is the essence of the thing to be accomplished, or in other words, whether it relates to a matter of substance or a matter of convenience. International Brotherhood of Teamsters v. Shapiro, 138 Conn. 57, 68, 82 A.2d 345 (1951). If it is a matter of substance, the statutory provision is mandatory. State ex rel. Eastern Color Printing Co. v. Jenks, 150 Conn. 444, 451, 190 A.2d 591 (1963). If, however, the legislative provision is designed to secure order, system and dispatch in the proceedings, it is generally held to be directory, especially where the requirement is stated in affirmative terms unaccompanied by negative words. Winslow v. Zoning Board, [143 Conn. 381, 388, 122 A.2d 789 (1956)]. “Such a statutory provision is one which prescribes what shall be done but does not invalidate action upon a failure to comply.” Broadriver, Inc. v. Stamford, 158 Conn. 522, 529, 265 A.2d 75 (1969).’ Fidelity Trust Co. v. BVD Associates, 196 Conn. 270, 278, 492 A.2d 180 (1985).” In re Adrien C., 9 Conn. App. 506, 510-11, 519 A.2d 1241 (1987); Zoning Board of Appeals v. Freedom of Information Commission, 198 Conn. 498, 503-504, 503 A.2d 1161 (1986); State v. White, 169 Conn. 223, 238, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975); State ex rel. Barnard v. Ambrogio, 162 Conn. 491, 501, 294 A.2d 529 (1972).

“The rules of statutory construction are ‘clearly applicable’ to the construction of our rules of practice.” DeTeves v. DeTeves, 202 Conn. 292, 298, 520 A.2d 608 (1987), citing State v. Cook, 183 Conn. 520, 521, 441 A.2d 41 (1981); State v. James, 197 Conn. 358, 363, 497 A.2d 402 (1985); State v. Gethers, 193 Conn. 526, 551, 480 A.2d 435 (1984); Grievance Committee v. Trantolo, 192 Conn. 15, 22, 470 A.2d 228 (1984). Applying this principle of statutory and procedural rule construction to the case before us, we hold that the requirement of Practice Book § 109A is directory, rather than mandatory. The procedural rule that a “statute shall be specifically identified by its number . . . [in] pleadings filed after September 1,1979,” relates to a matter of convenience. The purpose of this rule, adopted in 1979, is self-evident. No such procedural rule existed prior to that time. It was clearly designed to make future pleadings more specific, detailed and particularly informative by pinpointing statutory authority. Such a rule promotes the often expressed judicial policy of full, informative, comprehensive and open disclosure of legal claims, which promotes the identification, narrowing and resolution of issues before the court. Such a rule improves the efficient movement of the court’s business for the convenience and benefit of litigants before it. Its purpose is desirable, but not mandatory. The rule does not expressly or implicitly invalidate a pleading for failure to comply.

“The use of the word ‘shall,’ though significant, does not invariably create a mandatory duty because statutes must be construed as a whole to ascertain the legislative intention.” Tramontano v. Dilieto, 192 Conn. 426, 433-34, 472 A.2d 768 (1984); cf. Cannavo Enterprises, Inc. v. Burns, 194 Conn. 43, 51, 478 A.2d 601 (1984) (“Practice Book rule that protects important rights such as the right of jury trial and of appeal is generally construed as mandatory not directory”); State v. Cook, supra, 523 (Practice Book § 594 “mandates that the warrant [of arrest] shall be signed by the judicial authority”). We conclude, therefore, that Practice Book § 109A did not require that the motion to strike identify precisely the statute upon which it was based.

The plaintiff also maintains that the trial court erred in granting the defendants’ motion to strike because the court assumed facts not pleaded. The plaintiff argues that because his complaint did not allege that the defendant Godou was a “paid [or] volunteer fireman . . . performing fire duties” at the time of the accident, it did not allege the facts necessary to come within the ambit of § 7-308. In addition, the plaintiff maintains that even if his action is assumed to be based on the statute, there is nothing of record to prove that he did in fact fail to file the prescribed notice pursuant to the statute.

In ruling upon a motion to strike, the trial court is limited to the facts alleged in the complaint. King v. Board of Education, 195 Conn. 90, 93, 486 A.2d 1111 (1985). A motion to strike admits all facts well pleaded. Drazen v. Drazen, 180 Conn. 572, 573 n.3, 430 A.2d 1288 (1980); Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 545, 427 A.2d 822 (1980).

The plaintiffs complaint alleged that at the time of the accident the defendant city was the owner of a fire truck being operated by the defendant Godou “as the agent, servant and/or under a general authority to drive.” This broad language was clearly worded to implicate Godou in his capacity as either a paid or volunteer fireman who was performing fire duties for the city at the time of the accident. That conclusion is inescapable. The trial court did not err in finding that the plaintiff sought recovery for damages to his property pursuant to § 7-308. There was, therefore, no error in the court’s conclusion that the plaintiff’s complaint was deficient due to its failure to allege compliance with the notice provision as required by the statute.

The plaintiff asserts that even if the procedural mandates of § 7-308 were not met, the statute does not bar an action against the defendant Godou, an employee of the municipality, in his individual capacity. The plaintiff cites Fraser v. Henninger, 173 Conn. 52, 56-57, 376 A.2d 406 (1977), in support of this argument. The procedural posture of that case, however, distinguishes it from the case here and supports our conclusion that the plaintiff’s action against the individual employee, as well as the case against the municipal employer, was barred by the plaintiff’s failure to comply with the notice provision of § 7-308. In Fraser v. Henninger, supra, the claimant brought a two count action against a town employee and a municipality, respectively. The first count alleged a common law action for negligence on the part of the named defendant, an employee of the town of Greenwich. The second count sought recovery from the defendant town pursuant to General Statutes § 7-465, an indemnification statute analogous to § 7-308 in that it provides for the assumption by municipalities of liability for damages caused by their employees, “except firemen covered under the provisions of section 7-308.” See Keogh v. Bridgeport, 187 Conn. 53, 62-63, 444 A.2d 225 (1982). Because the plaintiff in Fraser brought separate actions in two counts against the employee and the municipality, respectively, the Supreme Court held that his failure to comply with the notice provision of the statute as to the second count was not fatal to his separate claim against the defendant employee in the first count. “[A]n injured party may maintain a common-law action against a municipal employee covered by the statute, thereby avoiding those requirements which are unique to recovery under the indemnification statute. Wakelee v. DeSanto, 152 Conn. 44, 46, 202 A.2d 833 [1964]; see annot., 71 A.L.R.3d 90, 98 § 2,148 § 27 (b).” Fraser v. Henninger, supra, 56.

The plaintiff in the case before us filed a single count complaint alleging one cause of action jointly against the defendants in their respective roles as employee and employer. This single cause of action was brought against the individual defendant “as the agent, servant and/or under a general authority to drive” the fire truck owned by the defendant city. The trial court correctly found that this complaint was based on § 7-308. If the plaintiffs complaint had contained a separate common law negligence count against the individual defendant solely, the plaintiff could have avoided the consequences of his failure to meet the requirements of § 7-308 applicable to a cause of action against the municipal employer. This, the plaintiff did not do. “[T]he provisions of § 7-465 which permit an action to be maintained against the municipality and the employee jointly do not mean that a plaintiff may not proceed against the employee alone if for any reason the plaintiff cannot prevail upon the count alleging facts to support a recovery from the municipality of any judgment obtained against the employee.” Fraser v. Henninger, supra, 57. This analysis applies to the parallel provisions of § 7-308. Having failed to comply with the notice provisions of § 7-308, the plaintiff was not entitled to maintain his separate common law cause of action against the individual defendant.

There is no error.

In this opinion the other judges concurred.

       The motion alleged as follows: “The defendants herein, Raymond Godou and the City of Bridgeport, move to strike the complaint in the above captioned case because it is barred by statute and file herewith the attached memorandum of law.”

       “[General Statutes] Sec. 7-308. assumption of liability for damages caused by firemen. The word ‘municipality,’ as used in this section, shall have the meaning ascribed to it by section 7-314 and the words ‘fire duties’ mean those duties the performance of which is defined in said section. Each municipality of this state, notwithstanding any inconsistent provisions of law, general, special or local, or any limitation contained in the provisions of any charter, shall pay on behalf of any paid or volunteer fireman of such municipality all sums which such fireman becomes obligated to pay by reason of liability imposed upon such fireman by law for damages to person or property, if the fireman, at the time of the occurrence, accident, injury or damages complained of, was performing fire duties and if such occurrence, accident, injury or damage was not the result of any wilful or wanton act of such fireman in the discharge of such duties. This section shall not apply to damages to person caused by an employee to a fellow employee while both employees are engaged in the scope of their employment for such municipality if the employee suffering such damages or, in the case of his death, his dependent has a right to benefits or compensation under chapter 568 by reason of such damages. If a fireman or, in the case of his death, his dependent has a right to benefits or compensation under chapter 568 by reason of injury or death caused by the negligence or wrong of a fellow employee while both employees are engaged in the scope of their employment for such municipality, such fireman or, in the case of his death, his dependent shall have no cause of action against such fellow employee to recover damages for such injury or death unless such wrong was wilful and malicious. The municipality may arrange for and maintain appropriate insurance or may elect to act as a self-insurer to maintain such protection. No action or proceeding instituted pursuant to the provisions of this section shall be prosecuted or maintained against the municipality or fireman unless at least thirty days have elapsed since the demand, claim or claims upon which such action or special proceeding is founded were presented to the clerk or corresponding officer of such municipality. No action for personal injuries or damages to real or personal property shall be maintained against such municipality and fireman unless such action is commenced within one year after the cause of action therefor has arisen nor unless notice of the intention to commence such action and of the time when and the place where the damages were incurred or sustained has been filed with the clerk or corresponding officer of such municipality and with the fireman within six months after such cause of action has accrued. No action for trespass shall lie against any fireman crossing or working upon lands of another to extinguish fire or for investigation thereof. Governmental immunity shall not be a defense in any action brought under this section. In any such action the municipality and the fireman may be represented by the same attorney if the municipality, at the time such attorney enters his appearance, files a statement with the court, which shall not become part of the pleadings or judgment file, that it will pay any verdict rendered in such action against such fireman. No mention of any kind shall be made of such statement by any counsel during the trial of such action.”

       “[Practice Book] Sec. 154. —reasons
      “Each motion to strike raising any of the claims of legal insufficiency enumerated in the preceding sections shall separately set forth each such claim of insufficiency and shall distinctly specify the reason or reasons for each such claimed insufficiency.”

       “[Practice Book] Sec. 109A. —allegations based on statutory GROUNDS
      “When any claim made in a complaint, cross complaint, special defense, or other pleading is grounded on a statute, the statute shall be specifically identified by its number. This section shall apply only to pleadings filed after September 1, 1979.”

       We note that the requirement of Practice Book § 155 that a motion to strike be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of § 154 that the reasons for the claimed pleading deficiency be specified in the motion itself. Morris v. Hartford Courant Co., 200 Conn. 676, 683 n.5, 513 A.2d 66 (1986); King v. Board of Education, 195 Conn. 90, 94 n.4, 486 A.2d 1111 (1985).

       We note that Practice Book § 109A was adopted by the judges of the Superior Court on March 30, 1979, effective July 1, 1979, and was made applicable to pleadings filed after September 1, 1979. No similar rule governed demurrers. See Practice Book, 1963, §§ 105 through 114.


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    Asgrow Seed Company v. Donald S. Wagner
    (5572)
    Spallone, Stoughton and O’Connell, Js.
    Submitted on briefs September 28
    decision released November 10, 1987

      John Andrew Kissel filed a brief for the appellant (defendant).

      Alan J. Barth filed a brief for the appellee (plaintiff).
   O’Connell, J.

This is an appeal from the trial court’s granting of the plaintiff’s motion for summary judgment in an action for collection of a commercial debt. We find error and remand the case to the trial court to reconsider the motion for summary judgment in light of an affidavit opposing the motion which was timely filed, but mistakenly excluded from the case file at the time the trial court rendered judgment on the motion.

The facts of the case are straightforward. The plaintiff, Asgrow Seed Company, filed suit against the defendant, Donald S. Wagner, alleging an unpaid balance of $9972.50 due on purchases by the defendant of certain seeds and related agricultural products. After the pleadings were closed, the plaintiff moved for summary judgment and filed an affidavit of the plaintiff’s “credit specialist,” an accompanying statement of the status of the defendant’s account and a memorandum in support of his motion. In response, on Friday, October 3,1986 the defendant filed a counteraffidavit opposing the motion.

The motion was decided as a nonarguable matter on the short calendar docket on Monday, October 6,1986. At that time, the counteraffidavit had not yet been added to the file.

Ordinarily, a moving party’s motion for summary judgment may be granted whenever it appears that there is no genuine issue of material fact remaining between the parties and that as a matter of law the moving party is entitled to judgment. Practice Book § 384; Lehto v. Sproul, 9 Conn. App. 441, 443, 519 A.2d 1214 (1987). Given the state of the file at the time the trial court reviewed it on Monday, October 6, the plaintiff appeared to be entitled to summary judgment. In addition, the absence of an opposing affidavit permitted the trial court to draw an inference that the defendant could not oppose the facts set forth in the plaintiffs affidavit. Maislin v. Lawton, 30 Conn. Sup. 593, 595, 314 A.2d 783 (1973).

Under the true status of the case at that time, however, the plaintiff was not entitled to judgment on the basis of the defendant’s failure to file a counteraffidavit.

The trial court later took no action to modify its decision although it learned of the counteraffidavit before this appeal was perfected. In view of the chronology of this case, the timely filed counteraffidavit was never considered on its merits. It should have been considered.

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

       Practice Book § 380 provides in relevant part: “The adverse party prior to the day the case is set down for short calendar shall file opposing affidavits and other available documentary evidence.” (Emphasis added.)

       The trial court’s articulation dated January 9,1987, recognized the existence of the counteraffidavit.


author: Stoughton, J.

text:
    Robert L. Zuliani et al. v. Irvin Chipperini et al.
    (5785)
    Borden, Spallone and Stoughton, Js.

      Submitted on briefs September 28
    decision released November 10, 1987

      Thomas G. Moukawsher filed a brief for the appellants (defendants).

      Frank N. Eppinger filed a brief for the appellees (plaintiffs).
   Stoughton, J.

This is an appeal from the judgment of the trial court rendered after the acceptance of a report of a committee established pursuant to General Statutes § 47-34. We find error.

The plaintiffs are the owners of a lot on Phoenix Drive in Groton by virtue of a warranty deed. The defendants are the owners of a lot which is contiguous to the plaintiffs’ lot, also by virtue of a warranty deed. The grantor was the same on each of the deeds. A dispute arose as to the ownership of a portion of the land where the two properties adjoin.

The plaintiffs brought this action seeking injunctive relief and damages in the first count. In the second count, the plaintiffs requested that a committee be appointed pursuant to General Statutes § 47-34, and that the court quiet title.

On October 15,1984, with the initial acquiescence of the defendants, the court appointed a committee to inquire into the facts and to erect and establish uncertain bounds to real estate, and report the facts and their doings to the court. Although the committee had been ordered to report within sixty days, it failed to do so. The trial court extended the time for the committee to file its report over the objection by the defendants that there were no lost or uncertain boundaries. The committee filed its report on September 9, 1985. The plaintiffs filed a motion to confirm the report, and the defendants filed motions to correct and an objection to the acceptance of the report. Thereafter, the defendants filed a motion to revoke the reference to the committee upon the grounds, inter alia, that the pleadings had not been closed and that they intended to claim a jury trial on the issue of title. The court continued the matter for sixty days, and ordered that the pleadings be closed and that the committee act on the motion to correct the report.

Thereafter, the committee filed a supplemental report in which it made no corrections. The defendants filed an answer, a claim for the jury, and an exception to the failure of the committee to correct its report.

In its report, the committee made certain determinations which include both findings of fact and conclusions of law. It found that the plaintiffs acquired their property by deed dated September 9, 1982, and recorded on September 10,1982, and that the defendants acquired their property by deed dated June 18, 1982, and recorded on April 18,1983. It further found that substantial ambiguity exists relative to the maps referred to in the deeds, an ambiguity which the committee specifically did not resolve because the deed to the plaintiffs was recorded more than seven months prior to the recording of the deed to the defendants and contained a description and a map reference. The committee also found that the deed to the defendants was recorded substantially after the plaintiffs’ deed, and that the defendants were thus on notice and took subject to the conveyance to the plaintiffs. The committee further found that there is a monument on the westerly line of Phoenix Drive at a point south of the southeasterly comer of the plaintiffs’ property, and that the parties had offered conflicting testimony as to the distance between the southeasterly corner of the plaintiffs’ property and the monument. On the basis of its reasoning that the defendants took with notice of and subject to the conveyance to the plaintiffs, the committee determined that the southeasterly corner of the plaintiffs’ lot was 1.94 feet north of the monument as claimed by the plaintiff.

The trial court rendered judgment that the defendants’ exception to the supplemental report was without merit, and that the southeasterly corner of the plaintiffs’ property commences 1.94 feet north of said monument.

The defendants claim that the court erred in accepting the committee’s report and in rendering judgment upon it. We agree.

Under the provisions of General Statutes § 47-34, when the boundaries of lands between adjoining proprietors have been lost or become uncertain and the parties cannot agree to establish the boundaries, one or more of them may bring a complaint and the court may appoint a committee of not more than three disinterested property owners. The function of the committee is to inquire into the facts, and to erect and establish the lost and uncertain bounds, and to report the facts and their doings to the court. The mission of the committee is to erect and establish from the evidence boundary lines which have become lost or have disappeared. The committee does not deal with title. West Hartford Ecclesiastical Society v. First Baptist Church in West Hartford, 35 Conn. 117, 119-20 (1868). Its whole object is the restoration of lost boundaries. Mosman v. Sanford, 52 Conn. 23, 31 (1884). Proceedings in accordance with what is now General Statutes § 47-34 have no effect on questions of title. Id.

The committee, by the terms of its own report, made no findings as to the ambiguity concerning the location of the boundary between the parties’ lands. Rather, the committee concluded that title to the contested strip rested with the plaintiffs because they recorded their deed first, and that the defendants thus had notice and took subject to the conveyance to the plaintiffs.

As we have noted above, it is not the duty of a committee appointed pursuant to General Statutes § 47-34 to determine the legal effect of one party’s having recorded a deed before another. Neither is it its function to ascertain whether one party had constructive notice of a conveyance to another party. In basing the location of the disputed boundary solely on its own conclusions of law, the committee acted beyond the powers delegated to it under § 47-34. Accordingly, the trial court should not have accepted the report and rendered judgment thereon.

There is error, the judgment is set aside and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 47-34. bounds between proprietors reestablished by superior court. When the boundaries of lands between adjoining proprietors have been lost or become uncertain and they cannot agree to establish the boundaries, one or more of them may bring a complaint to the superior court for the judicial district in which the lands or a portion of them are situated. The court may, upon the complaint, order the lost and uncertain bounds to be erected and established and may appoint a committee of not more than three disinterested property owners. The committee shall give notice to all parties interested in the lands to appear before it and, having been sworn, shall inquire into the facts and erect and establish the lost and uncertain bounds and may employ a surveyor to assist therein and shall report the facts and their doings to the court. If the court finds that the parties were duly notified, it may confirm such doings; and certified copies of the report and decree shall be recorded in the records of the town in which the lands are situated, and the bounds, so erected and established, shall be the bounds between the proprietors.”


author: Daly, J.

text:
    Daniel V. Presnick v. Harvey DeRosa
    (5659)
    Spallone, Daly and Stoughton, Js.
    Submitted on briefs September 28
    decision released November 10, 1987

      Daniel V. Presnick, pro se, the appellant (plaintiff) filed a brief.

      Vincent J. Dooley filed a brief for the appellee (defendant).
   Daly, J.

This appeal involves an action seeking attorney’s fees for work performed. The plaintiff appeals from a judgment of the trial court in favor of the defendant.

On appeal the plaintiff raises the following claims: (1) the court erred in holding that the defendant was not personally responsible for the contract when this defense was not specially pleaded; (2) the court erred in requiring the plaintiff to bear the burden of proof concerning the defendant’s individual responsibility under the contract; and (3) the court erred in excluding from evidence two letters written by the plaintiff.

The following facts were found by the trial court. The defendant, owner of the New Haven Credit Adjustment Bureau, Inc., contacted the plaintiff to represent the corporation’s interest in several matters before a federal court. Soon thereafter, the defendant became somewhat disenchanted with the plaintiff’s legal representation of the corporation. Eventually, the defendant settled the matters of the corporation out of court and by himself. The plaintiff contends that he worked over 100 hours for the defendant without receiving compensation. The plaintiff attempts to obtain compensation for his services through this action.

In his first claim, the plaintiff alleges that the trial court erred in holding that the defendant was not personally responsible for the contract when that defense was not specially pleaded. Specifically, the plaintiff claims that by not specially alleging that this was a corporate debt, he had no notice of the claim. In support of his position, the plaintiff relies on Practice Book § 164, which provides in pertinent part: “No facts may be proven under either a general or special denial except such as show that the plaintiff’s statements of fact are untrue. Facts which are consistent with such statements but show, notwithstanding that he has no cause of action, must be specially alleged.” Our Supreme Court, in DuBose v. Carabetta, 161 Conn. 254, 261, 287 A.2d 357 (1971), has explained the rationale which underlies § 164: “The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried, not to conceal basic issues until the trial is under way . . . .”

The plaintiff’s claim, however, is incorrect. By denying the plaintiffs allegation that the defendant was personally liable on the debt, the defendant was permitted to prove facts which “show that the plaintiff’s statements of fact are untrue” without specially pleading those facts. Practice Book § 164; Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 6, 327 A.2d 583 (1973). In Pawlinski, our Supreme Court stated (p. 6): “Even under a denial, a party generally may introduce affirmative evidence tending to establish a set of facts inconsistent with the existence of the disputed fact.” (Emphasis added.) In this action, the defendant’s case consisted of introducing affirmative evidence that no professional services had been rendered to the defendant on an individual basis.

Moreover, the plaintiff waived any deficiency in the pleadings by failing to object to evidence concerning corporate liability of the debt. It is a well established rule that the failure to raise a special defense is waived when the evidence is admitted without an objection. Thompson & Peck, Inc. v. Harbor Marine Contracting Corporation, 203 Conn. 123, 132, 523 A.2d 1266 (1987); Damora v. Christ-Janer, 184 Conn. 109, 112, 441 A.2d 61 (1981).

In the plaintiff’s second claim of error, he contends that the court erred in requiring the plaintiff to bear the burden of proof concerning the defendant’s liability for the amount owed. It is well established that the party who initiates an action and who seeks a judgment in his favor must prove that which he alleges in order to prevail. See Nikitiuk v. Pishtey, 153 Conn. 545, 552-53, 219 A.2d 225 (1966); B. Holden & J. Daly, Connecticut Evidence § 53. Whether the plaintiff sustained his burden of proof is a question of fact for the trier. Our job in reviewing a factual determination of the trial court is limited. “We are not the finders of fact; that is for the trial court.” Capmar Construction, Inc. v. Coyle, 4 Conn. App. 579, 580, 495 A.2d 1115 (1985). Our job is merely to examine if there is sufficient evidence in the record to support the decision of the trial court. Cushman v. Calvo, 196 Conn. 509, 514, 493 A.2d 891 (1985). The evidence in the record overwhelmingly supports the court’s decision.

The plaintiff’s final claim is that the court erred in not allowing the plaintiff to introduce two letters into evidence. The plaintiff contends that these two letters were written by him contemporaneously with telephone conversations which he had regarding his representation of the corporation. In support of his argument, the plaintiff contends that the letters are admissible as reply letters and as business records.

We find the plaintiff’s arguments imaginative, yet unconvincing. To be admissible as a reply letter, the letter must be claimed by the recipient, not the sender. See C. McCormick, Evidence (3d Ed.) § 225, pp. 695-97. The plaintiffs attempt to have the letters come within the business records exception to the hearsay rule is equally without merit. This court has held that to fall within this narrow exception it must be shown (1) that the document was made in the regular course of business, and (2) that it was in the regular course of business to make the writing or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter. Connecticut Limousine Service, Inc. v. Powers, 7 Conn. App. 398, 400, 508 A.2d 836 (1986). The record indicates that the plaintiff failed to establish both of these requirements. The trial court correctly refused to consider the letters.

There is no error.

In this opinion the other judges concurred.


author: Borden, J.

text:
    Leonard Smith et al. v. John Czescel
    (5397)
    Borden, Daly and O'Connell, Js.
    Argued September 30
    decision released November 10, 1987

      Arthur M. Field, for the appellants (plaintiffs).

      William F. Gallagher, with whom, on the brief, was Gwen B. Weltman, for the appellee (defendant).
   Borden, J.

The principal issue of this appeal is whether the trial court committed plain error in its charge to the jury regarding falling asleep while operating a motor vehicle. We conclude that the charge as given does fall within the plain error doctrine.

The named plaintiff, Leonard Smith, and his minor daughter, Kristen Smith (the plaintiff), appeal from the judgment rendered upon a verdict for the defendant, who was the owner and operator of a motor vehicle in which the plaintiff was a passenger. The plaintiffs’ principal claims of error concern the court’s instructions to the jury arising out of evidence that the defendant momentarily fell asleep while driving his vehicle.

The plaintiffs’ evidence was, in part, as follows: On December 31, 1981, at approximately 7:30 p.m., the plaintiff went to a New Year’s Eve party in Naugatuck with the defendant, who was her boyfriend. Some time after midnight, they left to go home in the defendant’s Chevrolet Blazer. The plaintiff climbed into the back of the vehicle and fell asleep. The defendant had nearly reached his home when he remembered that the plaintiff was asleep in the back of his vehicle. He then drove toward the plaintiff’s home. After driving for a total of about forty minutes, they were traveling southbound on Coram Road, in Shelton, approximately one mile from the plaintiff’s house. At 3 a.m., while traveling approximately thirty-five miles per hour, the vehicle left the road, and struck a mailbox and a telephone pole. The plaintiff incurred serious and undisputed injuries.

The plaintiff recalled only climbing into the back of the vehicle, falling asleep, and waking up in the hospital emergency room. She testified that, while the defendant was visiting her in the hospital three days after the accident, the defendant told her that he “started to doze off,” that he felt the vehicle go off the road, and that he attempted to steer it back onto the road before hitting the pole. The defendant testified that “[f]rom the time I was headed southbound on Coram Road, almost at the scene of the accident, I have a blank spot from there and the next thing I knew, I was headed off the road.” He stated in his motor vehicle accident report, introduced into evidence, that he “was traveling south on Coram Road. Everything fine. Must have dozed for [a] second. Next thing I knew a mailbox and telephone pole [were] in front of me.” He also testified that this written account was true “[t]o the best of my knowledge, I cannot — the dozed off part is the only thing — I got that black spot, that blank,” that he “must have dozed off for a second,” and “I got that blank spot, that’s all I can really say.” It is clear, therefore, that the court was required to charge the jury on the rules of law applicable to a situation in which the operator of a motor vehicle falls asleep.

The court charged in this respect as follows: “Now, in this case the defendant has testified that prior to the accident he had lost consciousness, blacked out I think was the word that was used. I instruct you that under the laws of this state, it is not negligence merely to fall asleep, faint or suddenly lose consciousness and thereby lose control of a car. For you to find that the defendant was negligent by reason of falling asleep, fainting or losing consciousness, you must first find that he had some advance notice that he was going to fall asleep, faint or lapse into unconsciousness. If you do not find that he had such advance notice, you may not find that his falling asleep, fainting or losing consciousness was negligence. Likewise, if you so find that his falling asleep or losing consciousness was without any advance notice, you may not find him negligent by reason of failing to keep a reasonable and proper lookout for other vehicles or failing to keep his vehicle under reasonable and proper control or by reason of driving in the wrong direction on the highway or by operating his vehicle in such a manner to endanger life, limb and property. Certainly in all reason, he who being stricken for the first time by paralysis still continues with his hands upon the wheel of an automobile he was driving and unconscious so directs it to cause its collision with another cannot be held negligent for the way in which he controlled it. Similarly where a driver has been overtaken by sleep, the question must be was the defendant negligent in permitting himself to fall asleep? Negligence is not to be imputed to the driver of an automobile merely because he suddenly blacks out, faints or suffers sudden attack and losing consciousness or control of the car when he is without premonition or warning of his condition. However, the mere fact of his going to sleep while driving is a proper basis for an inference of negligence sufficient to make out a prima facie case and sufficient for recovery by the plaintiff if no circumstances tending to excuse or justify his conduct are proven.”

Thereafter, during its deliberations, the jury-requested the court to repeat its charge “about negligence and blacking out by the defendant.” The court repeated for the jury its original charge on falling asleep or losing consciousness. The jury returned a general verdict for the defendant. The court denied the plaintiffs’ motion to set aside the verdict, and rendered judgment for the defendant. This appeal followed.

The plaintiffs raise a constellation of claims of error regarding the court’s instructions. The defendant correctly argues, however, that the plaintiffs failed to preserve properly their claims for appellate review because they neither filed a request to charge regarding sleep, nor took exceptions which were distinct enough to alert the court to their claims of error. Indeed, the plaintiffs took no exception at all to the court’s repetition, after the jury’s request, of its original instruction. Such procedural failures ordinarily preclude appellate review. Practice Book § 315. Despite these gross procedural inadequacies, however, we conclude that the plaintiffs’ claims qualify for review under the plain error doctrine. This court “may in the interests of justice notice plain error not brought to the attention of the trial court.” Practice Book § 4185. “Such review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.” State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985); Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259, cert. denied, 449 U.S. 956, 101 S. Ct. 363, 66 L. Ed. 2d 221 (1980). An important factor in determining whether to invoke the plain error doctrine is whether the claimed error “result[ed] in an unreliable verdict or a miscarriage of justice.” State v. Hinckley, supra, 88. This is such a case.

Our Supreme Court first considered the issue of the relationship between sleep and negligence in operating a motor vehicle in Bushnell v. Bushnell, 103 Conn. 583, 588-92, 131 A. 432 (1925). In that case, the plaintiff passenger sued the defendant driver who had momentarily fallen asleep, causing the car to leave the road and hit a tree. The trial court “submitted to the jury the question [of] whether, in view of the circumstances preceding and surrounding the accident, the fact that the defendant momentarily fell asleep constituted negligence on his part.” Id., 588. The defendant argued that, as a matter of law, he could not be negligent “because no man can tell when sleep will fall upon him.” Id., 590.

The court, in rejecting the defendant’s argument, pointed out that, although one cannot precisely fix the moment when he falls asleep, “it is not true that ordinarily sleep comes unheralded.” Id., 590-91. The court then reviewed “the chief phenomena of ordinary, healthy sleep”; id., 591; namely, diminishing consciousness of ordinary stimuli, either external or internal to the sleeper; a sense of well-being; relaxation of the muscles and limbs; drooping eyelids; contracted pupils; slow and deeper breathing; slower pulse; general lowering of body temperature; and slowing of metabolic processes. Id. This is particularly true where sleep comes to one in a situation such as driving a car, where there is “prolonged action” of the motion of the car, little voluntary movement, and muscular relaxation, “acting upon one who has become more or less fatigued and is sitting down in a warm atmosphere.” Id.

The court then stated: “Sleep in such a situation does not ordinarily come upon one unawares, and by watching for indications of its approach, or heeding circumstances which are likely to bring it about, one may either ward it off or cease an activity capable of danger to himself or to others. There are few ordinary agencies so fraught with danger to life and property as an automobile proceeding upon the highway freed of the direction of a conscious mind, and because this is so, reasonable care to avoid such a danger requires very great care. Mulligan v. New Britain, 69 Conn. 96, 102, 36 Atl. 1005 [1897]; Brown v. New Haven Taxicab Co., 93 Conn. 251, 254, 105 Atl. 706 [1919]; Walters v. Hansen, 99 Conn. 680, 683, 122 Atl. 564 [1923]; Towers v. Camp, 103 Conn. 41, 47, 130 Atl. 86 [1925]. In any ordinary case, one cannot go to sleep while driving an automobile without having relaxed the vigilance which the law requires, without having been negligent; it lies within his own control to keep awake or cease from driving; and so the mere fact of his going to sleep while driving is a proper basis for an inference of negligence sufficient to make out a prima facie case, and sufficient for a recovery, if no circumstances tending to excuse or justify his conduct are proven. Carlson v. Connecticut Co., 95 Conn. 724, 727, 112 Atl. 646 [1921]; Sliwowski v. New York, N.H. & H. R. Co., 94 Conn. 303, 309, 108 Atl. 805 [1920]; 1 Shearman & Redfield, Negligence § 58a et seq.; posthumous paper of Ezra Ripley Thayer, 29 Harvard Law Review, 807. If such circumstances are claimed to have been proven, it then becomes a question of fact whether or not the driver was negligent; and in determining that issue, all the relevant circumstances are to be considered, including the fact that ordinarily sleep does not come upon one without warning of its approach.” Bushnell v. Bushnell, supra, 591-92; see also Potz v. Williams, 113 Conn. 278, 281, 155 A. 211 (1931) (falling asleep while operating motor vehicle may constitute recklessness).

The Bushnell court concluded that the trial court properly left the issue of the defendant’s negligence to the jury, but it added that “[the trial court] might properly have gone farther and called attention to” the fact that ordinarily sleep does not come without warning. Bushnell v. Bushnell, supra, 592. There are several critical features of the law as set out in Bushnell which the charge of the trial court in this case should have but did not relate to the jury.

First, sleep does not ordinarily come upon a driver of a car without some prior indications of its onset. “[B]y watching for indications of its approach” or remaining aware that the driver of a car late at night is in a situation “likely to bring it about,” the driver should either stay awake or should cease driving while sleepy. Id., 591.

Second, few activities are as dangerous as an automobile on a highway which is not under the control of a “conscious mind.” Id. Therefore, “reasonable care to avoid such a danger requires very great care” (Emphasis added.) Id., 591-92.

Third, ordinarily one cannot fall asleep while driving a car without having been negligent by virtue of failing to maintain “the vigilance which the law requires.” Id., 592. Because a driver ordinarily has control of whether he stays awake or ceases driving, the fact of having fallen asleep at the wheel is a sufficient basis on which to find him negligent, “if no circumstances tending to excuse or justify his conduct are proven”; id.; and “[i]f such circumstances are claimed to have been proven,” the driver’s negligence becomes a question of fact under which “all the relevant circumstances are to be considered, including the fact that ordinarily sleep does not come upon one without warning of its approach. ” (Emphasis added.) Id.

Thus, the jury should also have been instructed, in accordance with these principles, that if a driver of a car falls asleep while driving, that alone will be a sufficient basis for a finding of negligence, because ordinarily the law requires that a driver maintain a vigilance either to stay awake or to cease driving. The jury should have been instructed that, if there are circumstances which excuse or justify his having fallen asleep, they may find that the driver was not negligent, but in this connection they should have been further instructed that “ordinarily sleep does not come upon one without warning of its approach.” Id.

Another flaw in the court’s instructions to the jury in this case was its equation between, on one hand, falling asleep and, on the other hand, fainting or suddenly losing consciousness. It is true that, in Bushnell v. Bushnell, supra, 590, the court appeared to draw the same equation, comparing a driver who is “stricken by paralysis or seized by an epileptic fit,” and “cannot be held negligent for the way in which [after having been stricken] he controlled” the car, to a driver “who exercises a like direction after he has been overtaken by sleep.” We believe, however, that equation to be inapplicable to this case.

The quoted language from Bushnell is dictum; there was in that case no claim that the driver suddenly lost consciousness. The sole claim was that he “momentarily fell asleep.” Id., 585. More importantly, common sense dictates that the law draw a distinction between a driver who falls asleep at the wheel and a driver who suddenly faints or loses consciousness from a cause other than sleep, such as a stroke, seizure or other sudden attack. Sleep is a phenomenon which all persons experience. It has certain normal harbingers of which the reasonably prudent driver should be aware. Sudden fainting or loss of consciousness, however, is not such a common phenomenon, and may or may not be something of which the driver should have been aware, depending on his history and the circumstances of the case. See Shea v. Tousignant, 172 Conn. 54, 58, 372 A.2d 151 (1976).

We recognize that in Shea v. Tousignant, supra, 56-57, our Supreme Court quoted a request to charge submitted by the defendant driver, which in some respects is similar to the court’s charge in this case. The trial court in Shea refused to charge the jury as requested by the defendant, although the defendant had “testified that she did not know how the accident happened, stating that she either passed out or fell asleep before the accident, and that before she lost consciousness she did not in any way feel sleepy, nor did she feel herself dozing, nor feel her eyes closing.” Id., 56. The Supreme Court held that “[b]y the trial court’s refusal to charge the jury on the effect of unforeseeably falling asleep or losing consciousness, the jury were left uninstructed on this issue.” Id., 58. In Shea, moreover, the Supreme Court did quote with approval the dictum from Bushnell v. Bushnell, supra, 590, equating a driver who is “ ‘stricken by paralysis or seized by an epileptic fit . . . [with] he who exercises a like direction after he has been overtaken by sleep.’ ” Shea v. Tousignant, supra, 57. The court also stated that a driver is not negligent “ ‘merely because he suddenly blacks out, faints, or suffers a sudden attack, losing consciousness or control of the car, when he is without premonition or warning of his condition.’ ” (Emphasis added.) Id., 58, quoting 8 Am. Jur. 2d 245 n.17, Automobiles and Highway Traffic § 693.

There is a critical distinction between Shea and this case, however. In Shea, the defendant testified that she “either passed out or fell asleep” at the wheel, and that before losing consciousness she experienced none of the usual harbingers of sleep. (Emphasis added.) Shea v. Tousignant, supra, 56. In Shea, therefore, unlike this case, there was evidence that the defendant either suddenly lost consciousness from a cause other than sleep, or suddenly fell asleep without having experienced the usual pre-sleep warnings. There was, therefore, evidence of “circumstances tending to excuse or justify [the defendant’s] conduct”; Bushnell v. Bushnell, supra, 592; and the defendant was entitled to have the jury pass on her factual claim that her loss of consciousness was without warning; see footnote 4, supra; under appropriate instructions as to “the effect of unforeseeably falling asleep or losing consciousness.” (Emphasis added.) Shea v. Tousignant, supra, 58.

In this case, however, there was no evidence that the defendant fell asleep without having experienced any of the usual forewarnings, and there was no evidence that he suddenly fainted or lost consciousness from a cause other than sleep. See footnote 5, supra. There was no basis in the evidence, therefore, for the court to instruct the jury that one who falls asleep while driving is to be treated the same as one who suddenly faints or loses consciousness from some other cause.

The plaintiffs’ claims regarding the trial court’s instructions to the jury are dispositive of this appeal, and require a new trial. We decline to consider the plaintiffs’ other claims because some of them are not likely to arise upon a retrial, and the remainder were not properly presented to the trial court or preserved for appeal, and do not come within the plain error doctrine.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other judges concurred.

       In charging on a claim of the plaintiffs regarding statutory negligence, the court further charged as follows: “Now, before I go any further, I must caution you again as to the charges that I have given you up to this point. As I have indicated to you, in order for you to be able to get into the question of a statutory breach or statutory violation or anything else I am going to tell you now, you must first find, of course, that there was negligence by virtue of the falling asleep. As I have indicated to you, you can find either it was negligence or it wasn’t, but that depends on whether or not you accept the latter portion of my charge as far as where I stated that the mere fact of the going to sleep while driving is a proper basis for an inference of negligence sufficient to make out a prima facie case and sufficient for recovery if no circumstances tending to excuse or justify his conduct are proven. So, if you feel that the falling asleep, that there were no circumstances tending to excuse or justify that conduct and you draw the inference of negligence, then you may go ahead and apply the rest of these rules that I am going to give you relative to the law. If you find, however, that it wasn't his fault that the accident occurred, that he blacked out or fell asleep, then you need not consider any other elements of damages, or any other elements of negligence as far as this case is concerned.”
      In the course of certain other instructions, the court repeated portions of its charge regarding falling asleep: “I charged you as follows: If you find that [the defendant’s] falling asleep or losing consciousness was without any advance notice, then you may not find him negligent by reason of failing to keep a reasonable and proper lookout for other vehicles or failing to keep his vehicle under reasonable and proper control.
      “Now, there is no allegation of his failure to keep his vehicle under reasonable and proper control. So, that should be omitted, or by reason of driving in the wrong direction on the highway.
      “I said to you also by operating his vehicle in such a manner as to endanger life, limb and property. The way this should read is, ‘Likewise, if you should find that his falling asleep or losing consciousness was without advance notice, then you may not find him negligent by reason of failing to keep a reasonable and proper lookout for other vehicles or by reason of driving in the wrong direction on the highway’; that is the proper charge to you.”

       The only exception to the charge on sleep taken by the plaintiffs was as follows: “[Plaintiffs’ Counsel]: Your Honor for the record, I would like to object to one portion of the charge relating to the question of whether dozing off is negligent without advance warning and that characterization without a more specific—
      “The Court: Counsel, your exception is well noted. Anything else, Counsel?
      “[Plaintiffs’ Counsel]: No.”
      Although arguably the court’s interruption may have truncated what might have become a more distinct exception, that did not relieve the plaintiffs of their obligation to make their claims clearly known to the court so that it could intelligently decide whether to correct any claimed inadequacy in the charge. Bevins v. Brewer, 146 Conn. 10, 12-13, 147 A.2d 189 (1958).

       The plaintiffs claim in their brief that they preserved their claim of error clearly to the court on their motion to set aside the verdict. They have failed, however, to provide us with a transcript of that proceeding, and their motion to set aside the verdict, which is in the record, does not establish that they did so. We cannot, therefore, be confident that they made even that belated attempt to present their claims clearly to the trial court.

       It is difficult to conceive, as a matter of common human experience, that, absent an illness such as narcolepsy; see Stedman’s Medical Dictionary (24th Ed.) (defining narcolepsy as a “sudden uncontrollable disposition to sleep occurring at irregular intervals, with or without obvious predisposing or existing cause”); one could suddenly fall asleep without first experiencing the usual feelings and symptoms of drowsiness. We recognize, however, that this may be possible, and that a driver who claims to have done so is entitled to have the jury pass upon his claim. See, e.g., Shea v. Tousignant, 172 Conn. 54, 372 A.2d 151 (1976).

       Indeed, in this case there was no evidence that the defendant fainted or suddenly lost consciousness. The clear thrust of his motor vehicle accident report, his oral statement to the plaintiff, and his testimony in court, was that he fell asleep. The only references in his testimony to another cause of the accident were to the effect that, at a point on the road immediately before the accident scene he had a “black spot” or a “blank spot,” and that he next recalled heading off the road. It is difficult to read this as testimony that he suddenly and momentarily fainted or lost consciousness. It appears more likely to be testimony that he had a “blank spot” in his memory as to the course of his car immediately prior to its leaving the road. This reading is consistent, moreover, with the defendant’s repeated testimony that he momentarily fell asleep and awakened when he felt his car leave the road.


text:
    Mazie Dennison, Administratrix (Estate of David Dennison) v. Lewis Klotz et al.
    (5056)
    Borden, Spallone and Daly, Js.
    Argued September 30
    decision released November 10, 1987

      William F. Gallagher, with whom, on the brief, was Evelyn A. Barnum, for the appellant (plaintiff).

      Kevin M. Tepas, for the appellee (defendant Andrew Priest).

      Barbara N. Beilis, with whom, on the brief, was Jack V. Genovese, for the appellee (defendant Denise Zemke).
   Borden, J.

In this wrongful death action, the plaintiff appeals from judgments rendered in favor of three defendants following the granting of the defendants’ motions to strike the plaintiffs complaint. The principal issue of the appeal is whether a passenger in a car owes a legal duty to take action to prevent harm to a fellow passenger who is about to be or has been injured by the conduct of the driver of the car.

The plaintiff raises claims of both procedural and substantive error by the trial court. We find error in the rendering of judgment in favor of the defendant Andrew Priest, and no error with respect to the rendering of judgment in favor of the defendants Jeff Kosky and Denise Zemke.

The plaintiff’s original complaint alleged that the plaintiff’s decedent, David Dennison, was a passenger in a car being operated by David Martorelli. The defendants, Lewis Klotz, Denise Zemke, Jeff Kosky, and Andrew Priest, were also passengers in that car when it collided with a tree, throwing Dennison out of the rear hatchback window and onto the ground behind the car. Thereafter, the driver of the car ran over Dennison, causing his death. In its first count, the original complaint alleged that Dennison’s death was proximately caused by the negligence of the defendant passengers in various enumerated ways. In its second count, the complaint set out a claim of negligent infliction of emotional distress.

Priest filed a motion to strike the original complaint, claiming that the complaint failed to state a claim upon which relief could be granted. By memorandum of decision dated September 11,1984, the trial court, Fishman, J., granted the motion to strike as to the defendant Priest. On September 21, 1984, the plaintiff filed a motion to extend the time within which to replead through October 22,1984. No action was taken by the court in response to this motion.

On February 18, 1985, the plaintiff filed a request for leave to file a substitute complaint as to all the defendants. The substitute complaint claimed (1) negligence on the part of the four passenger defendants, (2) reckless and wanton misconduct on the part of the four defendants, (3) negligence on the part of the four defendants in that they knew of, or should have known of, the driver’s reckless and wanton misconduct, and (4) wrongful infliction of emotional distress. No objections to the request for leave to file a substitute complaint were filed by any of the defendants.

Priest did not file a responsive pleading to the substitute complaint. Instead, on March 1, 1985, Priest filed a motion for judgment on the court’s September 11, 1984 order striking the original complaint as to him. The plaintiff timely objected to the motion for judgment. On June 26, 1985, the trial court, D. Dorsey, J., granted the motion for judgment.

Thereafter, the defendants Kosky and Zemke each filed a motion to strike the substitute complaint. They claimed that the substitute complaint attempted to state a cause of action between two passengers in a motor vehicle for injuries received by one of the passengers as a result of the operation of the motor vehicle by the driver, and that no such cause of action is recognized in Connecticut. After these motions were granted by the court, Byrne, J., judgment was rendered by the court, Hále, J., for these defendants. This appeal followed.

I

We first consider the rendering of judgment in favor of Priest. The plaintiff raises several claims of error, some of which are procedural in nature while others are more properly viewed as substantive. Because we find procedural error in the court’s rendering of judgment necessitating further proceedings, we confine our discussion of the plaintiffs claims, as they relate to this defendant, to the dispositive procedural issue.

The trial court granted Priest’s motion for judgment, filed on March 1,1985, because the plaintiff had failed to replead within the fifteen day period prescribed by Practice Book § 157, or within the period referred to in her motion for extension of time. The court held that the plaintiffs attempt to replead thereafter through a request for leave to file a substitute complaint pursuant to Practice Book § 176, was improper, notwithstanding the fact that Priest had not filed an objection to the plaintiffs request. The plaintiff contends that the court erred in granting Priest’s motion for judgment. We agree.

Practice Book § 176 provides in pertinent part that “a party may amend his pleadings ... at any time . . . (c) [b]y filing a request for leave to file such amendment, with the amendment appended . . . . ” (Emphasis added.) If no objection to the request is filed within fifteen days of the date of the filing of the request, the amendment is deemed to be filed with the consent of the adverse party, and the trial court has no discretion to deny the request. Practice Book § 176; Darling v. Waterford, 7 Conn. App. 485, 487, 508 A.2d 839 (1986).

Practice Book § 157 does not preclude an attempt to replead under § 176 after the expiration of the fifteen day period following the granting of a motion to strike. Section 157 provides that where no new pleading is filed within the fifteen day period,.the court “may upon motion” render judgment against the party whose pleading has been stricken. The use of the phrase “may upon motion” demonstrates that judgment does not enter automatically after the failure to replead during the time period set out in § 157. Since further action is required to obtain judgment, the party against whom judgment is sought may avail herself of the opportunity to request leave to file an amended or substitute complaint pursuant to § 176 at any time prior to the rendering of judgment.

This view of Practice Book § 176 is consistent with the policy underlying General Statutes § 52-121 (a). That statute provides that “[a]ny pleading in any civil action may be filed after the expiration of the time fixed by statute or by any rule of court until the court has heard any motion for judgment by default or nonsuit for failure to plead which has been filed in writing with the clerk of court in which such cause is pending.” See also Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259, cert. denied, 449 U.S. 956, 101 S. Ct. 363, 66 L. Ed. 2d 221 (1980).

When the court in this case considered Priest’s motion for judgment upon the plaintiff’s original complaint, that complaint had been replaced by the substitute complaint, which was deemed to have been filed with the consent of Priest in the absence of his objection thereto. Since the original complaint was no longer in the case, and Priest had never pleaded in response to the substitute complaint, it was error to render judgment upon the original complaint. See Wooster v. Jerome, 131 Conn. 266, 38 A.2d 683 (1944). The plaintiff’s case against Priest must therefore be remanded for further proceedings upon the substitute complaint.

II

We next consider whether the plaintiff stated a cause of action in her substitute complaint against the remaining defendants, Kosky and Zemke, both fellow passengers of the plaintiffs decedent. The plaintiff alleged that these defendants were negligent and engaged in reckless or wanton misconduct by failing to maintain a proper lookout and in overcrowding the Martorelli car; in failing to warn the operator of the car that Dennison had been thrown out of the car and was in danger, “when they had the actual ability and authority to control the driver’s action by reasonable instructions”; in permitting their faculties to become so impaired by the use of alcohol that they could neither observe Dennison being thrown from the car nor warn the driver of Dennison’s peril; and in failing to stop “and render any kind of assistance to their fellow passenger when the same was reasonably necessary under the circumstances” after Dennison was injured by the driver’s operation of the car.

It is important to note what the substitute complaint does not allege. It does not allege any facts from which it might be determined that the parties were in any relationship, other than as fellow passengers. The complaint does not allege that the defendants engaged in any affirmative action which inflicted harm on Dennison, either by way of direct conduct or by way of encouragement or participation.

The plaintiff claims that the court erred in granting the motions to strike the substitute complaint, filed by the defendants Kosky and Zemke. We disagree.

A motion to strike challenges the legal sufficiency of the allegations of a complaint, and is appropriately granted where there is no basis upon which relief can be granted. Practice Book § 152 (1). “It is axiomatic that, in passing on a motion to strike based on a claim of failure to state a cause of action, we must take the facts alleged favorably to the pleader and view those facts in a broad fashion, not strictly limited to the allegations, but also including the facts necessarily implied by and fairly probable under them.” Schmidt v. Yardney Electric Corporation, 4 Conn. App. 69, 74, 492 A.2d 512 (1985). The trial court determined that the plaintiffs substitute complaint failed to state a cause of action in that the plaintiff “failed to allege a relationship between the decedent and the [defendants] ‘by which the latter owes a duty to former.’ Neal v. Shiels, Inc., 166 Conn. 3, 12, 347 A.2d 102 (1974).” We agree with the trial court.

“Negligence is a breach of duty.” Urban v. Hartford Gas Co., 139 Conn. 301, 304, 93 A.2d 292 (1952). ‘To sustain a cause of action [in negligence] the court must determine whether the defendant owed a duty to the plaintiff’s decedent .... The existence of a duty is a question of law.” (Citation omitted.) Shore v. Stonington, 187 Conn. 147, 151, 444 A.2d 1379 (1982). With respect to this claim of error, then, the central question to be resolved is whether a passenger in a car owes any legal duty to take action to prevent harm to a fellow passenger who is about to be injured or has been injured by the conduct of the driver of the car.

The plaintiff correctly points out that older Connecticut case law has recognized that, under extreme and particularized circumstances, there may be a very limited duty required of a passenger in an automobile “to look out for threatened or possible dangers, and to warn the driver of such after their discovery.” Clarke v. Connecticut Co., 83 Conn. 219, 224, 76 A. 523 (1910); see also Boscarello v. New York, N. H. & H. R. Co., 112 Conn. 279, 152 A. 61 (1930); Tracy v. Welch, 109 Conn. 144, 145 A.2d 662 (1929). Clarke and its progeny suggest only that a passenger who fails properly to carry out this very limited duty may be barred from or limited in her recovery under the doctrines of contributory or comparative negligence. See also 7A Am. Jur. 2d, Automobiles and Highway Traffic §§ 596, 600, 601.

These cases, however, involve only the duty of a passenger in an automobile to exercise reasonable care for her own safety. The general rule with respect to a passenger’s duty to exercise care or perform some act for the protection of third parties is otherwise: “[A]n occupant of a motor vehicle other than the driver is not liable for injury to a third person due to the negligence of the driver, in the absence of evidence that the occupant had some control over the driver, or that the driver was in the occupant’s employ, or that the driver and the occupant were engaged in a joint enterprise.” Id., § 635. The distinction between a failure to act which will constitute a passenger’s contributory or comparative negligence, and a passenger’s similar failure to act which will not create liability to a third party, is supported by the case law of other jurisdictions; see, e.g., Martinson v. Cagle, 454 So. 2d 1383, 1386 (Ala. 1984); Coffman v. Kennedy, 74 Cal. App. 3d 28, 32-33, 141 Cal. Rptr. 267 (1977); Martino v. Leiva, 133 Ill. App. 3d 1006, 1008, 479 N.E.2d 955 (1985); Fugate v. Galvin, 84 Ill. App. 3d 573, 406 N.E.2d 19 (1980); Clark v. Mincks, 364 N.W.2d 226, 231-32 (Iowa 1985); Akins v. Hamblin, 237 Kan. 742, 703 P.2d 771 (1985); Anthony v. Kiefner, 96 Kan. 194, 150 P. 524 (1915); Danos v. St. Pierre, 383 So. 2d 1019, 1021-22 (La. App. 1980), aff’d, 402 So. 2d 633 (La. 1981); Sloan v. Flack, 150 So. 2d 646 (La. App. 1963); Olson v. Ische, 343 N.W.2d 284, 287-88 (Minn. 1984); Moya v. Warren, 88 N.M. 565, 544 P.2d 280 (1975); Cecil v. Hardin, 575 S.W.2d 268, 270 (Tenn. 1978); Hale v. Allstate Ins. Co., 639 P.2d 203, 205 (Utah 1981); Price v. Halstead, 355 S.E.2d 380, 385-86 (W. Va. 1987); Reiter v. Grober, 173 Wis. 493, 494-95, 181 N.W. 739 (1921); Winslow v. Brown, 125 Wis. 2d 327, 371 N.W.2d 417 (Wis. App. 1985); and by the Restatement (Second) of Torts. Compare 2 Restatement (Second), Torts § 495 with 2 Restatement (Second), Torts § 315. See also 2 Restatement (Second), Torts § 315, comment (b).

The reason for distinguishing between passenger conduct which may affect recovery by the plaintiff passenger, and passenger conduct sought to be used as a basis for liability to other persons, has been variously stated. In Olson v. Ische, supra, 287, the Supreme Court of Minnesota explained: “A passenger has, of course, a legal duty to use care for his own safety, and his contributory negligence will bar or diminish his own claim. He may also have a moral duty owed to others not to encourage the driver to drive when he should not be driving. But to impose a legal duty on the passenger, which makes him liable to others on the highway for what the driver himself chooses to do, seems to us, as a general proposition, inappropriate. Such a rule assumes, incorrectly, that a passenger somehow shares in the management of the motor vehicle, and it further assumes the driver is amenable to the passenger’s influence.” Likewise, in distinguishing between these two rules of law, the Supreme Court of Wisconsin reasoned: “A person may well be content to trust his own safety to a driver, and yet not be willing to indemnify third persons who may suffer through his negligence. He may say, so far as I am concerned his negligence is my negligence, but I do not agree to become responsible to others for his negligence. To extend the doctrine to that degree would make a guest in a private conveyance an insurer of third persons against the negligence of the driver. Instead of being invested with the liabilities of a guest he would shoulder those of a master.” Reiter v. Grober, supra, 495.

For a more practical reason, also, we are hesitant to impose liability under the circumstances of this case. If liability to an injured third party attached to the inaction of a passenger, we perceive no justifiable reason not to extend similar liability to third parties, such as witnesses or bystanders, who were or should have been aware of the danger posed by the driver’s conduct but failed to take some preventive action. See Martinson v. Cagle, supra; (noting that any observer who knew the driver was intoxicated was in the same position as a passenger having no legal duty to take preventive action).

The plaintiffs reliance upon § 322 of the Restatement (Second) of Torts to support a duty to Dennison does not help her argument. Section 322 and the comments thereto make clear that the duty to aid contemplated by that section is predicated upon the actor’s “act, or an instrumentality within his control, [which] has inflicted upon another such harm that the other is helpless or in danger.” 2 Restatement (Second), Torts § 322, comment (a). The distinguishing feature between this case and a situation where § 322 is applicable, is that here there was simply no act by either defendant passenger which inflicted harm on the plaintiff’s decedent, and there is no allegation that the car was within the control of either defendant passenger. Further, the applicability of § 322 to a situation analogous to this case has been rejected elsewhere: “A passenger is under no legal duty to stop and give assistance to a person injured by the car in which he is riding, unless the passenger’s conduct caused the accident or there is some special relationship either between the passenger and the driver that would make the passenger jointly responsible with the driver for the accident, or between the passenger and the injured party independently giving rise to such a duty to aid.” Cecil v. Hardin, supra.

The substitute complaint contains two separate allegations of overcrowding of the car on which the plaintiff relies to bring herself within the scope of § 322. They are that the defendants overcrowded the vehicle and thus placed Dennison in a position of peril in the hatchback part of the car; and that they overcrowded the car by having an unsafe number of persons in it, hampering the driver’s post-impact vision and operation of the car, and “thus placed [Dennison] in a position of peril . . . . ” The plaintiff’s reliance on § 322 is misplaced. Section 322 rests on the premise that the defendant, by conduct or by an instrumentality under his control, inflicted harm on the plaintiff. Under the circumstances presented here, the plaintiff’s allegations that the defendants placed Dennison in a perilous position fall short of an allegation that they inflicted harm on him.

There is no allegation that the defendants coerced or persuaded Dennison into sitting in an obviously unsafe part of the car, or that they did anything which imperiled him other than their seating arrangement. We simply do not believe that the requirement of § 322 that the defendant “has caused . . . bodily harm to another”; see footnote 8, supra; can legitimately be read to include the allegation that, by their seating arrangement, the defendants placed Dennison in a position of peril. Additionally, we fail to see how to determine which of four passengers in a three-passenger car has caused the overcrowding — the first to enter the car, the last to enter the car, or the passenger who sat in a nonpassenger compartment.

With respect to the allegation that the overcrowding of the car placed Dennison in a position of peril because it hampered the driver’s vision and operation of the car, the plaintiff conceded in oral argument in this court that this allegation relates only to Dennison’s position after having been thrown from the car. Thus, it does not constitute an allegation that the defendants inflicted harm on him.

We hold that in the absence of an allegation of facts showing a special relationship between the parties or between the defendant and the driver, or in the absence of an allegation of facts showing that the driver and the defendant were engaged in a joint enterprise, inaction by a defendant passenger does not give rise to liability to a fellow passenger or other third party injured by the driver’s conduct. Accordingly, the court properly granted the motions to strike filed by Kosky and Zemke.

There is error with respect to the judgment in favor of the defendant Andrew Priest, that judgment is set aside and the case is remanded to be proceeded with according to law.

There is no error with respect to the judgment in favor of the defendants Jeff Kosky and Denise Zemke.

In this opinion the other judges concurred.

       A judgment rendered in favor of the named defendant, Lewis Klotz, was vacated on September 29, 1986, pursuant to the parties’ settlement agreement. Klotz, therefore, is no longer a party to this appeal.

       The plaintiffs claim for emotional distress was withdrawn, and forms no issue in this appeal.

       The plaintiff originally filed an appeal as to the defendant Priest immediately following the judgment in favor of that defendant. That appeal, however, was dismissed by this court for lack of an appealable final judgment under the rule of Kilbride v. Dushkin Publishing Group, Inc., 186 Conn. 718, 724-25, 443 A.2d 922 (1982). Therefore, this appeal properly raises claims of error relating to the rendering of judgment in favor of Priest pursuant to Practice Book § 157, as well as the later rendering of judgment in favor of the other defendants.
      We note that the Kilbride rule has been modified by amendments to former Practice Book § 3001, now § 4002.

       “[Practice Book] Sec. 157. —substitute pleading; judgment
      “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint, counterclaim or cross complaint has been stricken, and the party whose pleading has been so stricken fails to file a new pleading within that fifteen-day period, the court may upon motion enter judgment against said party on said stricken complaint, counterclaim or cross complaint.”

       Since we find error in the court’s rendering of judgment in favor of Priest on the original complaint, the plaintiffs claim of error regarding the denial of her later motion to set aside that judgment is moot. Additionally, the plaintiffs claim of error regarding the court’s granting of Priest’s motion to strike the original complaint is also not properly before us. The plaintiffs filing of the substitute complaint operated as a waiver of the right to claim error in the granting of the motion to strike the original complaint. Royce v. Westport, 183 Conn. 177, 178-79, 439 A.2d 298 (1981).

       In her brief, the plaintiff also argues that, in adddition to a duty to take action to prevent harm to a third person, a passenger “may be liable for the consequences of a driver’s negligent operation of his motor vehicle, where the guest directs or encourages the negligent act or personally cooperates therein.” We need not address the viability of this theory of liability, however, because the complaint alleges no such affirmative conduct on the part of the defendants.

       Comment (b) to § 315 of 2 Restatement (Second) of Torts, which bears the heading “Distinction between duty to act for another’s protection and duty to act for self-protection, "provides an example which pertains directly to the issues argued by the parties in this appeal: “In the absence of either [a special relationship between the actor and the negligent party which imposes a duty upon the actor to control the third person’s conduct, or a special relationship between the actor and the injured party which gives to the injured party a right of protection], the actor is not subject to liability if he fails, either intentionally or through inadvertence, to exercise his ability so to control the actions of third persons as to protect another from even the most serious harm. This is true although the actor realizes that he has the ability to control the conduct of a third person, and could do so with only the most trivial of efforts and without any inconvenience to himself. Thus if the actor is riding in a third person’s car merely as a guest, he is not subject to liability to another run over by the car even though he knows of the other's danger and knows that the driver is not aware of it, and knows that by a mere word, recalling the driver’s attention to the road, he would give the driver an opportunity to stop the car before the other is run over. On the other hand, under the rule stated in § 495, the actor is guilty of contributory negligence if he fails to exercise an ability which he in fact has to control the conduct of any third person, where a reasonable man would realize that the exercise of his control is necessary to his own safety. Thus if the actor, while riding merely as a guest, does not warn the driver of a danger of which he knows and of which he has every reason to believe that the driver is unaware, he becomes guilty of contributory negligence which precludes him from recovery against another driver whose negligent driving is also a cause of a collision in which the actor himself is injured. ” (Emphasis added.)

       “[Restatement (Second) Torts] § 322. duty to aid another harmed by actor’s conduct. If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise care to prevent such further harm.”

       The plaintiffs allegations of reckless and wanton misconduct do not require a different result. Where, as here, there is no legal duty to act, the plaintiff cannot create one simply by describing the defendant’s conduct in more blameworthy terms.


author: Per Curiam.

text:
    Howie’s Painting Service, Inc. v. Baldomar Ferreria
    (5561)
    Spallone, Daly and Stoughton, Js.
    Submitted on briefs September 28
    decision released November 10, 1987

      Keith A. Rubenstein filed a brief for the appellant (defendant).

      John A. Florek and David A. Kollmann filed a brief for the appellee (plaintiff).
   Per Curiam.

The defendant appeals from the trial court’s acceptance of an attorney factfinder’s report, and the subsequent rendering of judgment for the plaintiff. We find no error.

The defendant alleges that the trial court erred in rendering judgment for the plaintiff on the complaint and the counterclaim where (1) the facts ruled on were not supported by the evidence, (2) the subordinate facts found were in conflict with the ultimate factual conclusions, and (3) the facts found and the conclusions reached were inadequate to support the judgment.

The defendant’s claims of error are no more than a sweeping attack on the factual findings of the court. Although we are loath to repeat ourselves, we must again declare our disapproval of such claims. “Our review of the factual findings of the trial court is limited to the determination of whether, in view of the evidence and pleadings in the whole record, those findings are clearly erroneous.” Cotton v. Cotton, 11 Conn. App. 189, 192, 526 A.2d 547 (1987). “Unless there were no facts upon which the court could base its finding, we as an appellate body cannot retry the case or substitute our judgment for that of the trial court.” (Emphasis added.) Wolk v. Wolk, 191 Conn. 328, 330, 464 A.2d 780 (1983), citing Weiman v. Weiman, 188 Conn. 232, 234, 449 A.2d 151 (1982).

The outcome of this contractual dispute rested heavily on the testimony of the various witnesses, and it is not for us to say who provided the more credible evidence. “It is settled law that the credibility of witnesses and the weight to be accorded to their testimony is entirely a matter for the discretion of the trier of fact.” Filosi v. Hawkins, 1 Conn. App. 634, 641, 474 A.2d 1261 (1984); see also Edens v. Kole Construction Co., 188 Conn. 489, 494-95, 450 A.2d 1161 (1982), and cases cited therein.

Our review of the record, transcripts and briefs clearly indicate that the factual findings and conclusions of the trial court are amply supported by the evidence. See Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 435 A.2d 24 (1980).

There is no error.


text:
    In re Robert K.

    (5645)
    Borden, Daly and O’Connell, Js.

      Argued October 9
    decision released November 10, 1987

      Joseph B. Burns, with whom was Austin J. McGuigan, for the appellant (respondent).

      John H. Kearney, court advocate, for the appellee (state).

      In an accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.
      Reporter of Judicial Decisions

   Borden, J.

The juvenile respondent was found guilty of five counts of sexual assault in the first degree and two counts of sexual assault in the third degree, and was adjudicated to be delinquent. He appeals from the judgment of delinquency, claiming (1) that the evidence was insufficient to sustain a finding of guilt beyond a reasonable doubt, (2) that he was deprived of a fair trial because the evidence against him was tainted by the Ansonia police department’s failure to comply with General Statutes § 17-38a, (3) that the trial court improperly restricted his cross-examination of the complaining witnesses, and (4) that the trial court erred in refusing to sequester the complaining witnesses while counsel argued to the court regarding the allegedly improper restriction of cross-examination of those witnesses. We find no error.

The respondent was twelve years old when the state filed a thirty-five count petition against him, charging him with twenty-eight counts of sexual assault in the first degree in violation of General Statutes § 53a-70, two counts of sexual assault in the third degree in violation of General Statutes § 53a-72a, one count of assault in the third degree in violation of General Statutes § 53a-61, and four counts of larceny in the first degree in violation of General Statutes § 53a-122. The state subsequently amended its petition, dropping eighteen counts of sexual assault in the first degree and the assault charge. The court found the respondent guilty of five counts of sexual assault in the first degree and two counts of sexual assault in the third degree, and adjudicated him to be delinquent. These charges involved separate assaults upon two young girls, ages seven and eleven at the time of the assaults.

The state’s evidence to prove the respondent’s guilt was the testimony of the two female victims, then ages eight and twelve. There was also evidence that the two girls had been sexually abused by adults at some time prior to the assaults involved in the present case. The respondent was not connected with those adults, except that they were all from the same Ansonia neighborhood.

The respondent claims that the evidence was insufficient to convict him. His argument takes two forms. First, he contends that the court failed to apply the proper standard of proof when passing upon his motion for judgment of acquittal made at the close of the state’s case. Second, he argues that because the only evidence of his guilt was the uncorroborated testimony of his two young victims, and because that testimony was contradictory and controverted by other evidence, the evidence as a whole could not support a finding of guilt.

The respondent’s claim that the court erred in denying his motion for judgment of acquittal must fail. “[Ujnder our waiver rule, a defendant may not appeal the denial of a motion for judgment of acquittal brought at the close of the state’s case-in-chief when he elects thereafter to introduce evidence in his own behalf. . . . [Our Supreme Court has] recently questioned the constitutional validity of the waiver rule. State v. Rutan, 194 Conn. 438, 440-44, 479 A.2d 1209 (1984); State v. Duhan, 194 Conn. 347, 351-52, 481 A.2d 48 (1984). In the present case, however, we need not decide whether the denial of a motion for judgment of acquittal at the close of the state’s case-in-chief is assignable as error, because we find that the evidence was sufficient at that juncture.” State v. Lizzi, 199 Conn. 462, 464-65, 508 A.2d 16 (1986). The respondent has failed to indicate how the state’s proof fell short of the constitutional standard of proof of each element of the offenses charged beyond a reasonable doubt. In re Winship, 397 U.S. 358, 368, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). Our review of the transcript shows no such deficiency.

The respondent’s next claim of evidentiary insufficiency amounts to an attack on the credibility of the testimony of the victims of the sexual assaults. “Our standard of review of the conclusions of the trier of fact, whether it be a judge or a jury, is limited. State v. Evans, 203 Conn. 212, 238, 523 A.2d 1306 (1987). We construe the evidence in the light most favorable to sustaining the verdict or judgment, and we will confirm the conclusion of the trier of fact if it is reasonably supported by the evidence and the logical inferences drawn therefrom. State v. Hanson, 12 Conn. App. 32, 38, 529 A.2d 720 (1987).” State v. Lo Sacco, 12 Conn. App. 481, 483-84, 531 A.2d 184 (1987).

The evidence against the respondent consisted of the testimony of his victims. While the respondent notes that, since the repeal of General Statutes § SSa^S, it is the law in this state that there is no requirement that each and every element of the crime of sexual assault be corroborated, he urges that, absent corroboration, the state be held to a higher burden of proof than when there is no corroboration. As a corollary to this argument, the respondent claims that, notwithstanding General Statutes § 54-86h, corroboration is needed when the victim of a sexual assault is a young child. We reject this suggestion judicially to revive General Statutes § 53a-68, and to ignore the express language and intent of General Statutes § 54-86h. The latter statute makes clear that the weight to be given to the testimony of a child victim of a sexual assault “shall be for the determination of the trier of fact.”

The respondent’s reliance upon State v. Zimnaruk, 128 Conn. 124, 20 A.2d 613 (1941), lends no additional support to his claim of evidentiary insufficiency. In Zimnaruk, our Supreme Court noted that in sexual assault cases where corroboration of the victim’s testimony is lacking, “the court should adopt a cautious approach and weigh the credibility of the complainant with care, particularly if there are improbabilities suggested by her story or there is substantial controverting evidence . . . .” Id., 126. There is no suggestion in the record before us, however, that the court failed to weigh the credibility of the two complaining witnesses with the care required by Zimnaruk. Upon review of the evidence presented in this case as a whole, we cannot conclude, as the respondent urges, that the court “abused its discretion in affording too much weight to the testimony of the alleged victims.” The court’s finding of guilt beyond a reasonable doubt as to the seven charges of sexual assault is reasonably supported by the evidence.

The respondent’s next claim of error is that he was deprived of a fair trial when the court relied upon the testimony of his young victims notwithstanding the fact that the Ansonia police officers who questioned these children failed to notify the department of children and youth services (DCYS) within the time frame set forth in General Statutes § 17-38a. The respondent asserts that the officers’ highly suggestive form of interrogation with these children and the failure to follow General Statutes § 17-38a tainted the statements made by the complainants. The respondent never claimed in the trial court, nor does he claim on appeal, that the alleged failure to follow General Statutes § 17-38a affected the admissibility of the evidence. His claim related only to the weight of the evidence.

The purpose of General Statutes § 17-38a is to require the reporting of suspected child abuse to the appropriate state agency in a timely manner in order “[t]o protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good care; [and] to provide a temporary or permanent nurturing and safe environment for children when necessary.” General Statutes § 17-38a (a). This statute is intended to facilitate the protection of children and their removal from abusive situations. It is not a statute designed to preserve or protect evidence pertaining to such abuse. Nor does it bar police investigation prior to the initiation of a DCYS investigation of alleged abuse. Any failure to follow the statute’s timely reporting provisions has no bearing on the weight to be accorded to the victim’s testimony in court.

The respondent’s argument with respect to the conduct of the police investigation, then, is an attack upon the credibility of the two witnesses against him. The evidence on this point was amply presented to and rejected by the court. We cannot conclude that the court abused its discretion in this regard.

The respondent also claims that the court erred in restricting his cross-examination of the complaining witnesses. This claim requires little discussion. When error is claimed in any evidentiary ruling, “the brief or appendix shall include . . . the question or offer of exhibit; the objection and the ground on which it was based; the ground on which the evidence was claimed to be admissible; the answer, if any; the ruling; and any exception.” Practice Book § 4065 (d) (3). The respondent’s brief summary and citation to transcript pages does not meet the requirements of this rule of practice. Accordingly, we decline to review this claim.

The respondent’s final claim of error is that the court erred in not sequestering the complaining witnesses, who were then testifying when counsel argued about the admissibility of evidence of their prior sexual conduct. This claim of error suffers from the same procedural defect which precludes review of the respondent’s third claim of error. A limited review of this claim, undertaken, however, to assure that no injustice was done to the respondent, indicates that the respondent has failed to show any prejudice in the trial court’s failure to sequester the witnesses during the argument of counsel. State v. Sullivan, 11 Conn. App. 80, 83-86, 525 A.2d 1353 (1987).

There is no error.

In this opinion the other judges concurred.

       Repealed in 1974, General Statutes (Rev. to 1972) § 53a-68 provided: “A person shall not be convicted of any offense under this part, or of an attempt to commit such offense, solely on the uncorroborated testimony of the alleged victim, except as hereinafter provided. Corroboration may be circumstantial. This section shall not apply to the offense of sexual contact in the third degree, nor to the offenses of prostitution, patronizing a prostitute, promoting prostitution or permitting prostitution.”

       “[General Statutes] § 54-86h. competency of child as witness. No witness shall be automatically adjudged incompetent to testify because of age and any child who is a victim of assault, sexual assault or abuse shall be competent to testify without prior qualification. The weight to be given the evidence and the credibility of the witness shall be for the determination of the trier of fact.”

       General Statutes § 17-38a is a child abuse reporting statute. It sets forth the procedures to be followed by designated professionals for the reporting of suspected child abuse to the appropriate state agencies and the time frame within which such reports must be made. In its application to police officials, § 17-38a requires that police officers, who suspect that a child has been abused, notify the commissioner of children and youth services or her representative in writing within seventy-two hours.

       We note, in addition, that examination of the two transcript references which respondent has provided shows additional reasons for our refusal to review this claim. In the first set of transcript pages to which we are directed, the respondent failed to take exception to the court’s ruling, thus precluding our review. Practice Book § 288. The respondent has not argued for review of this claim under State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), nor could he, as his claim is not of constitutional dimension. State v. Franko, 199 Conn. 481, 488, 508 A.2d 22 (1986). As to the other transcript pages to which our attention is directed, the court overruled the state’s objection, and permitted the cross-examination in question.