author: BISHOP, J.

text:
    STATE OF CONNECTICUT v. IAN WRIGHT
    (AC 23660)
    Foti, Bishop and Hennessy, Js.

      Argued March 19

    officially released May 27, 2003

      Mark Rademacher, assistant public defender, for the appellant (defendant).

      C. Robert Satti, Jr., senior assistant state’s attorney, with whom, on the brief, was Jonathan C. Benedict, state’s attorney, for the appellee (state).
   Opinion

BISHOP, J.

The defendant, Ian Wright, appeals from the judgment of conviction, rendered after a jury trial, of murder in violation of General Statutes § 53a-54a (a), as enhanced by General Statutes § 53-202k, and carrying a pistol or revolver without a permit in violation of General Statutes § 29-35. On appeal, the defendant claims that the court’s charge to the jury was defective and that the evidence was insufficient to sustain his conviction of murder. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On October 15, 2000, at approximately 11 p.m., Betty Robertson entered the Jamaican American and Puerto Rican Club (club) in Bridgeport to attend a party. Everyone, including the victim, Wilfredo Sanchez, was searched for weapons as they entered the club. Robertson noted, however, that the defendant and his brother, David Wright, were not searched when they entered the club. After Robertson and the victim entered a hallway near the rest rooms to “roll some marijuana,” the defendant began flicking the hallway lights. When the victim asked the defendant to stop, a fight started between them.

During the fight, John Williamson was standing behind the defendant, but close to the rest room, while David Wright was standing at the end of the hallway, also to the rear of the defendant. Robertson stated that as the victim was getting the better of the fight, she heard gunshots, and saw the victim fall to the ground and Williamson fall into the women’s rest room. After the gunshots, Robertson saw both the defendant and David Wright run past her, both with guns in their hands, and, as they fled, she heard more gunshots from outside the club.

At trial, Williamson testified that while he was in the men’s rest room, he heard the sound of people fighting and, as he departed the rest room, saw a fight. Subsequently, he heard two gunshots and fell into the women’s rest room, having been shot in the leg. While he was lying on the floor, he heard another gunshot. During the shooting, he did not see either the defendant or his brother.

The state also called James Hamilton to testify concerning a conversation that he had had with the defendant while both were incarcerated after the evening in question. Hamilton, who had no involvement in the incident, testified that while he and the defendant were cell mates, the defendant told him that during the evening of the shooting, he had seen the victim by the rest room and had told the victim to stop selling drugs because it was his family’s club. Hamilton claimed that the defendant told him that he had been in possession of a gun at the time and that when he and the victim began to fight, he drew his gun. Hamilton added that the defendant told him that as he and the victim had struggled for the gun, it discharged, after which the defendant had backed up and shot the victim. Hamilton also testified that the defendant indicated to him that both he and his brother had had weapons. The defendant stated that he had a .45 caliber gun and that his brother had a .38 caliber weapon, and that as he and his brother were leaving the club, they both fired their guns.

Shortly after the shooting at the club, Bridgeport police observed the defendant who, while driving his automobile near Bridgeport Hospital, drove past a stop sign. After the police pursued the defendant’s car, both the defendant and his brother fled from the car and were apprehended after being chased by the police. The police noted that the car windows had been damaged, likely the result of gunshots. In the course of the police chase, David Wright was seen discarding a gun that later was determined to be the murder weapon. The defendant was discovered, shirtless, lying in an alley hidden by brush. He was not found in possession of a weapon, nor was any other weapon found in his vicinity.

The defense called John Pettway, who testified that he was in the club after 10 p.m. on the evening in question, and that the victim had been searched upon entering the club and that no gun was discovered on him. Pettway indicated that there had been a fight between the victim and another man in the rest room hallway. During the fight, he heard the “shooter” tell the victim that this was his “people’s club,” that he saw the victim strike the shooter in the face and that he saw the “shooter” draw a gun. Pettway testified that he first heard one gunshot and then several more as he started to leave the hallway. He saw the defendant and his brother leave the hallway, with the defendant waving a gun and telling the crowd to “back off.” Pettway then saw Patrick Wright, the club’s owner, lock the club doors.

From an autopsy, it was determined that the victim had died as a result of a bullet wound from a .38 caliber gun. That weapon later was determined to be the gun that David Wright had thrown from the defendant’s car while being pursued by the police. Bullet casings from that same weapon were discovered in the defendant’s car and outside the club. Williamson’s gunshot wound was found to have been caused by a .45 caliber weapon. At the scene, the Bridgeport police also recovered a .45 caliber shell casing from the hallway and other .45 casings outside the club, all from the same weapon. In addition to those casings, the police found other casings of various calibers outside the club. Results consistent with gunshot residue were found on the hands of the defendant and David Wright.

A fair reading of the transcript supports the defendant’s claim that the prosecution’s theory was that the defendant was either the shooter or an accessoiy to David Wright, who was the shooter. Although neither the defendant nor David Wright testified at trial, it may be inferred from defense counsel’s questioning and argument that the defense strategy was to suggest that David Wright had shot the victim without the defendant’s knowledge or participation. At the conclusion of the evidence, the jury found the defendant guilty of both charges. Upon being polled, the jury indicated its conclusion that the defendant had been an accessory in the victim’s murder. This appeal followed the defendant’s sentencing to a total effective term of thirty-five years incarceration. Additional facts will be set forth as necessary.

I

We first assess the defendant’s claims of instructional error. As to the murder count, he claims that because he was charged as an accessory to murder, he was entitled to an instruction that the jury must acquit him if the principal’s use of force was justified under General Statutes § 53a-19. Second, as to the charge of carrying a pistol or revolver without a permit, he claims that he was entitled to an instruction on the doctrine of necessity. We discuss each claim in turn.

“Our standard of review for claims of instructional error is well established. [J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict . . . and not critically dissected in a microscopic search for possible error. . . . Our standard of review on this claim is whether it is reasonably probable that the jury was misled. . . . The test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Therefore, jury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict.” (Internal quotation marks omitted.) D’Alesandro v. Clare, 74 Conn. App. 177, 181-82, 812 A.2d 76 (2002).

A

The following additional procedural facts are relevant to our discussion of the defendant’s claim. Although the state initially charged the defendant as the shooter, there was evidence adduced at trial that David Wright had fired the weapon, which resulted in the victim’s death. On that basis, at the conclusion of the evidence, the state requested, and the court gave, an instruction concerning the defendant’s accessorial liability pursuant to General Statutes § 53a-8.

The defendant asserts that he was entitled to a reasonable use of physical force charge premised on his claim that in regard to the state’s charge that he was criminally responsible as an accessory, there was sufficient evidence from which the jury could have concluded that the shooter held a reasonable belief that the defendant was in imminent danger of physical harm from the victim. As to that alternative, because the court charged the jury under the accessory statute, the defendant argues that he was entitled to a charge that if the shooter was justified in his use of deadly force, then the shooter’s justification should be imputed to the defendant.

The defendant’s theory in that regard is that his liability as an accessory could be only derivative and that if the shooter’s discharge of the weapon was justified, he could not be found criminally liable for the victim’s killing because, at most, he would be only an accessory to a justified shooting. In response, the state argues that there was insufficient evidence to warrant a charge based on a third party shooter’s reasonable belief of the need to use physical force in defense of the defendant.

General Statutes § 53a-19 (a) provides: “Except as provided in subsections (b) and (c) of this section, a person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.”

“A defendant who asserts a recognized legal defense, the availability of which is supported by the evidence, is entitled as a matter of law to a theory of defense instruction.” (Internal quotation marks omitted.) State v. Holmes, 75 Conn. App. 721, 727, 817 A.2d 689 (2003). “Before an instruction is warranted, however, [a] defendant bears the initial burden of producing sufficient evidence to inject self-defense into the case. ... To meet that burden, the evidence adduced at trial, whether by the state or the defense, must be sufficient to raise a reasonable doubt in the mind of a rational juror as to whether the defendant acted in self-defense.” (Citation omitted; internal quotation marks omitted.) State v. Lewis, 220 Conn. 602, 619, 600 A.2d 1330 (1991). The jury’s inquiry into the defendant’s belief regarding the necessary degree of force to repel the victim’s attack is commonly known as the subjective-objective inquiry and it involves a two-step process.

“First, the jury must determine whether, on the basis of all of the evidence presented, the defendant in fact had believed that he had needed to use deadly physical force, as opposed to some lesser degree of force, in order to repel the victim’s alleged attack. . . .

“If the jury determines that the defendant had not believed that he had needed to employ deadly physical force to repel the victim’s attack, the jury’s inquiry ends, and the defendant’s self-defense claim must fail. If, however, the jury determines that the defendant in fact had believed that the use of deadly force was necessary, the jury must make a further determination as to whether that belief was reasonable, from the perspective of a reasonable person in the defendant’s circumstances.” (Emphasis in original; internal quotation marks omitted.) State v. Pranckus, 75 Conn. App. 80, 90, 815 A.2d 678, cert. denied, 263 Conn. 905, 819 A.2d 840 (2003). Before the jury is given an instruction on self-defense, however, there must be some evidentiary foundation for it. “A jury instruction on self-defense is not available to a defendant merely for the asking. The defendant would only have been entitled to a jury instruction on his theoiy of self-defense if he had presented applicable evidence no matter how weak or incredible .... However low the evidentiary standard may be, it is nonetheless a threshold the defendant must cross. The defendant may not ask the court to boost him over the sill upon speculation and conjecture.” (Citation omitted; internal quotation marks omitted.) State v. Tyson, 23 Conn. App. 28, 37-38, 579 A.2d 1083, cert. denied, 216 Conn. 829, 582 A.2d 207 (1990).

In support of his claim, the defendant asserts that from witness testimony, the jury could have concluded that David Wright saw that he and the victim were fighting, and that there was a struggle for a weapon with which the victim might shoot the defendant or that the victim might injure the defendant with his fists if David Wright did not intervene in defense of the defendant. The evidence regarding David Wright, however, does not support the defendant’s supposition as to David Wright’s state of mind. Witnesses testified that David Wright was in the hallway during the fight between the defendant and the victim. Testimony revealed that at one point, he drew a gun and shot the victim, and that shortly thereafter, he and the defendant, both armed, ran from the building.

In the absence of any evidence concerning David Wright’s state of mind, the suggestion that the jury should have been asked to ponder a third party shooter’s beliefs would have been no more than judicial invitation to jury speculation. We conclude that the court properly decided not to instruct the jury on the defense of necessity regarding the conduct of a third party shooter.

B

The defendant next claims that the court improperly declined to instruct the jury on the defense of necessity concerning the charge of carrying a pistol or revolver without a permit. In support of his claim, the defendant asserts that the evidence, when viewed favorably to him, demonstrates that the victim and the defendant had struggled over a gun, that no one saw the defendant draw the gun, that the gun accidentally discharged, wounding Williamson, and that David Wright then shot the victim. On that basis, the defendant asserts that the court should have instructed the jury that it could consider a defense of necessity to the charge of carrying a pistol or revolver without a permit. More specifically, the jury could consider the latter defense if it found that during the fight, the defendant was placed in imminent danger of death when the victim took a gun from him, thereby entitling the defendant momentarily to take possession of the weapon for his own protection.

In response, the state claims that necessity is not a legally recognized defense to the charge of carrying a pistol or revolver without a permit and that if it were, the evidence, even when construed favorably to the defendant, does not support the giving of such an instruction. Because we agree with the state’s evidentiary argument, we need not reach its legal claim.

Our review of the record reveals that there was no evidence that the victim was in possession of a weapon before the fight. Correspondingly, there was evidence that the defendant had not been searched upon entering the club, and that he had been in possession of a weapon before, during and after the fight and shooting. On the basis of that evidentiary record, there was no reason for the court to instruct the jury on the defense of necessity to the charge of carrying a pistol or revolver without a permit.

II

The defendant’s last claim is that the evidence was insufficient as a matter of law for the jury to have convicted him of murder as an accessory. In support of his claim, he argues that the evidence regarding David Wright as the shooter demonstrates that David Wright shot the victim without any encouragement or aid from the defendant and without the defendant’s prior knowledge.

“In reviewing [a] sufficiency [of evidence] claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the juiy reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . .

“On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the [trier of fact’s] verdict of guilty. ... As long as the evidence presented at trial was sufficient to allow the jury reasonably to conclude that the state had met its burden of persuasion, the verdict will be sustained.” (Internal quotation marks omitted.) State v. Pranckus, supra, 75 Conn. App. 85-86.

General Statutes § 53a-8 (a) provides that “[a] person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally hable for such conduct and may be prosecuted and punished as if he were the principal offender.” This court has stated: “[T]here is no such crime as being an accessory .... The accessory statute merely provides alternate means by which a substantive crime may be committed. . . . This state . . . long ago adopted the rule that there is no practical significance in being labeled an accessory or a principal for the purpose of determining criminal responsibility. . . . The modem approach is to abandon completely the old common law terminology and simply provide that a person is legally accountable for the conduct of another when he is an accomplice of the other person in the commission of the crime. . . . [The] labels [of accessory and principal] are hollow. . . .

“Since under our law both principals and accessories are treated as principals ... if the evidence, taken in the light most favorable to sustaining the verdict, establishes that [the defendant] committed the [crime] charged or did some act which forms ... a part thereof, or directly or indirectly counseled or procured any persons to commit the offenses or do any act forming a part thereof, then the convictions must stand. ... To prove guilt as a principal, the state must prove each element of the offense charged beyond a reasonable doubt. To be guilty as an accessory one must share the criminal intent and community of unlawful purpose with the perpetrator of the crime and one must knowingly and wilfully assist the perpetrator in the acts which prepare for, facilitate or consummate it. . . . Whether a person who is present at the commission of a crime aids or abets its commission depends on the circumstances surrounding his presence there and his conduct while there.” (Citations omitted; internal quotation marks omitted.) State v. Ashe, 74 Conn. App. 511, 516-17, 812 A.2d 194, cert. denied, 262 Conn. 949, 817 A.2d 108 (2003).

With those parameters in mind, we review the evidence to determine whether the jury reasonably could have found the defendant guilty of murder as an accessory. As to the elements of intent and concert required for a murder conviction as an accessory, the jury reasonably could have considered the defendant and David Wright’s possession of weapons at the club, their presence in the hallway prior to the fight, the defendant’s behavior toward the victim before the fight, the defendant’s and David Wright’s firing of weapons during the fight and their flight together following the shooting in a vehicle driven by the defendant while David Wright remained in possession of the murder weapon. We conclude that there was ample evidence to support the jury’s finding that the defendant was guilty of murder as an accessory.

The judgment is affirmed.

In this opinion the other judges concurred.

       It appears from the record that Pettway identified the defendant as the shooter.

       From the record, it is clear that the court did give a self-defense charge regarding the state’s claim that the defendant was, himself, the shooter and not an accessory. The defendant makes no claims of instructional error regarding that portion of the charge.

       The state claims, as well, that the provisions of General Statutes § 53a-19 relating to the justified use of force do not pertain to accessory liability under General Statutes § 53a-8. The state’s argument is premised on the language of General Statutes § 53a.-9, which provides in relevant part: “In any prosecution for an offense in which the criminal liability of the defendant is based upon the conduct of another person under section 53a-8 it shall not be a defense that: (1) Such other person is not guilty of the offense in question because of lack of criminal responsibility or legal capacity or awareness of the criminal nature of the conduct in question or of the defendant’s criminal purpose or because of other factors precluding the mental state required for the commission of the offense in question . . .
      Because we find the absence of any evidence to warrant the requested charge dispositive of the defendant’s claim, we leave to another day whether the provisions of § 53a-9 would prevent the court from correctly giving a justification charge when a defendant is charged as an accessory to one whose behavior would entitle the actor to a justification charge pursuant to § 53a-19.

       As the state points out in its brief, although the defense of necessity has no statutory basis in Connecticut, and it survives as a common-law defense to certain charges, it never has been applied to the charge of carrying a pistol or revolver without a permit. It is difficult to envision the propriety of the defense of necessity when the defendant was in possession of a gun at the bar before the fight with the victim, he had drawn a gun on the victim during the fight and there was an absence of any evidence that the victim had been in possession of a weapon beforehand.


source: Caselaw Access Project

author: DUPONT, J.

license: Public Domain

text:
    ALICIA ROACH ET AL. v. IVARI INTERNATIONAL CENTERS, INC., ET AL.
    (AC 22310)
    Lavery, C. X, and Schaller and Dupont, Js.

      Argued February 20
    officially released May 27, 2003

      W. Anthony Stevens, Jr., with whom was Louis W. Flynn, Jr., for the appellants (plaintiffs).

      Robert G. Clemente, with whom, on the brief, was Lorinda S. Coon, for the appellees (defendants).
   Opinion

DUPONT, J.

The plaintiffs, Alicia Roach and James J. Roach, appeal from the judgment rendered in favor of the defendants after a trial to the court in which the plaintiffs sought to hold the defendants liable for alleged damage to the hair and scalp of Alicia Roach. On appeal, the plaintiffs claim that the court improperly concluded (1) that the defendants were not negligent, (2) that the plaintiffs were required to present expert testimony regarding the standard of care in the hair implant industry and (3) that the defendants did not breach their contract with the plaintiffs. We discuss the first and second claims together because the presence or absence of negligence rests in part on the type of care or standard of care to be used in a particular situation.

The following facts, as found by the court in its memorandum of decision, are relevant to our resolution of the plaintiffs’ claims. Alicia Roach is a retired epidemiologist, seventy years old at the time of trial, who had suffered from hair loss for some years prior to the events that are the subject of her action.

In the spring of 1996, the plaintiff saw the defendants’ magazine advertisement for microcylinder intervention (intervention), a nonsurgical procedure that involves the interaiingling of donor hair with a client’s natural hair to provide a fuller appearance of hair.

After consulting with her physician, the Roaches traveled to New York and met with an Ivari representative. James Roach on June 24, 1996, signed a contract with Ivari in which Alicia Roach is described as the client. The contract briefly described the intervention procedure, the recommendation of adjustments after the initial intervention, the scheduling date of the intervention and the time for payment. The Ivari representative explained the details of the intervention and the periodic maintenance procedures. The representative did not provide any warning of any potential side effects, but did state that the intervention would not prevent or slow additional hair loss.

In July and August, 1996, James Roach paid $15,245 and $10,000 to Ivari. On August 18 and 19, 1996, the procedure was performed in Ivari’s Beverly Hills, California, office. Within one month after the procedure, the plaintiff began to suffer from scalp itching, about which she complained to Ivari on a visit on October 16, 1996. An Ivari representative informed her that the itching was a temporaiy condition.

After that visit, the plaintiff still suffered from an itching scalp, which often kept her awake at night. She made further complaints about the itching to Ivari, to her coworkers and to her hairdresser, Nelson Jimmo. Jimmo recommended that the plaintiff see a dermatologist. On December 6, 1996, when the plaintiff saw Gary L. Last, a dermatologist, she no longer complained of scalp itching. Last saw no signs of irritation or disease, but thought that the hairpiece might have contributed to the plaintiffs hair loss and recommended the removal of the hairpiece. He observed hair breakage, which he attributed either to the traction of the hairpiece or to the plaintiffs past history of permanent waves or to the use of relaxers.

The plaintiff returned to Jimmo so that he could remove the hairpiece. As a combined result of the snipping off of threads of hair at the underside of each microcylinder and the breaking off of some hairs from tension on the hair when the hairpiece became loose, there was a significant bald spot on the plaintiffs head after the removal.

Thereafter, the plaintiff wore wigs for several months until her natural hair grew back. Although the plaintiffs hair is thinner now than it was prior to the procedure, that is due in part to her regular visits to the hairdresser, to the continued hair thinning, which had been occurring for some years prior to the intervention, and to the residual effects of hair breakage following the intervention procedure. The court noted that “Ivari, Inc., is in the business of installing exorbitantly priced hairpieces on the heads of people with thinning hair. These hairpieces are the functional equivalent of wigs and might be expected to look and feel like wigs after attachment.”

The plaintiffs filed their action against the defendants alleging negligence, breach of contract and negligent infliction of emotional distress. The case was tried to the court over three days, with the court concluding that judgment should be rendered for the defendants on all counts.

We first set forth the applicable standard of review. This case involves both findings of fact and conclusions of law. “If the factual basis of the court’s decision is challenged, our review includes determining whether the facts set out in the memorandum of decision are supported by the record or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. . . . With regard to the trial court’s factual findings, the clearly erroneous standard of review is appropriate. . . . The trial court’s legal conclusions are subject to plenary review. [ W]here the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision.” (Internal quotation marks omitted.) Maloney v. PCRE, LLC, 68 Conn. App. 727, 734-35, 793 A.2d 1118 (2002).

I

NEGLIGENCE CLAIMS

“The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury.” RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994). If a plaintiff cannot prove all of those elements, the cause of action fails. Santopietro v. New Haven, 239 Conn. 207, 225, 682 A.2d 106 (1996). The court concluded that the plaintiffs failed to prove the existence of a duty to warn or that the “sale or installation of the hairpiece . . . caused damage to Alicia Roach’s scalp or hair.”

“The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation . . . .” (Internal quotation marks omitted.) Gould v. Mellick & Sexton, 263 Conn. 140, 153, 819 A.2d 216 (2003); see also Petriello v. Kalman, 215 Conn. 377, 382-83, 576 A.2d 474 (1990). “A duty . . . may arise . . . from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.” (Internal quotation marks omitted.) Greene v. Perry, 62 Conn. App. 338, 341, 771 A.2d 196, cert. denied, 256 Conn. 917, 773 A.2d 1143 (2001). To implicate a duty to warn, a plaintiff must show that the defendant knew that a danger existed. Davies v. General Tours, Inc., 63 Conn. App. 17, 22, 774 A.2d 1063, cert. granted on other grounds, 256 Conn. 926, 776 A.2d 1143 (2001) (appeal withdrawn October, 18, 2001); see also Sharp v. Wyatt, Inc., 31 Conn. App. 824, 852, 627 A.2d 1347 (1993), aff'd, 230 Conn. 12, 644 A.2d 871 (1994).

The court specifically found that the plaintiffs “produced no credible evidence to show that itching, discomfort or hair breakage were side effects reasonably to be expected from the intervention procedure by the [defendants] or by anyone else.” That finding is supported by the record. The court found that the plaintiff had offered no evidence to show the standard of care regarding the issuance of warnings in connection with the procedure. Therefore, the court’s conclusion that a duty to warn was not established was legally and logically correct. Without having established a duty to warn, the plaintiff cannot establish a breach of such duty. Even if the court had found a duty to warn and a breach of that duty, the plaintiff could not prevail unless causation was found.

The court concluded that the plaintiffs had failed to prove that the lack of a warning caused the injuries to the plaintiff. The court found (1) that she had an ongoing hair loss condition, (2) that she regularly went to a hairdresser for shampooing, coloring, highlighting and styling, (3) that her physician had attributed her hair breakage to either her history of permanent waves and relaxers or to the traction of the hairpiece in combination, (4) that when her hairdresser removed the hairpiece, he snipped some of her hair and (5) that her now thinner hair is due to the natural process of continued hair thinning, which began before the intervention. On the basis of those facts, the court’s conclusion that the plaintiffs had failed to present any evidence of a causal connection between the defendants’ device and the lasting thinness of Alicia Roach’s hair was legally and logically correct.

The plaintiffs also claim on appeal that the court improperly concluded that they were required to produce expert testimony to support their negligence claims. The plaintiffs’ claims of negligence primarily relate to an alleged duty to warn Alicia Roach that the procedure would cause (1) scalp discomfort, (2) sections of her hair to break, (3) the loss of more of her hair and (4) her condition to become worse. The defendants argue that the court did not base its judgment on the lack of expert testimony produced by the plaintiffs, but used that as part of its conclusion that the plaintiffs had not proven their case. We agree with the defendants.

The plaintiffs produced no expert testimony in support of their claims. Expert testimony is required to support a claim of a breach of a duty if “the determination of the standard of care that governs the duty requires knowledge that is beyond the experience of [the] fact finder . . . .” (Internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 686-87, 748 A.2d 834 (2000). At the close of the evidence, the defendants sought to dismiss the action on the ground that the plaintiffs had not presented any expert testimony on the standard of care required in the industry for either the installation of the hairpiece or any necessary warnings. The court denied that motion, finding that the plaintiffs were not required to submit expert testimony and that the court would evaluate the plaintiffs’ case on the evidence submitted.

The court, therefore, despite the lack of expert testimony, went on to consider the evidence presented by the plaintiffs in light of their burden to prove the essential elements of their complaint. In its memorandum of decision, the court did state that the plaintiffs “offered no expert testimony as to the standard of care in the hair extension industry regarding the issuance of warnings” and that the plaintiffs “provided no expert witness . . . to establish a particular standard of care [as to the selling and installing of the hairpieces].” Those statements regarding the expert testimony merely were an acknowledgment that expert testimony would have been helpful to the court in rendering its decision. The court, however, independently considered the evidence. The court stated that in the absence of expert guidance to establish a particular standard of care with regard to warnings, the court could, as the trier of fact, rely on the ordinary knowledge of a trier of fact. The standard of care in the ordinary negligence case is the care that a reasonably prudent person would exercise under the same circumstances. Smith v. Leuthner, 156 Conn. 422, 424-25, 242 A.2d 728 (1968).

In light of the court’s denial of the defendants’ motion to dismiss and a close reading of the court’s memorandum of decision, we conclude that the court properly considered all of the plaintiffs’ evidence and did not base its decision on the lack of expert testimony.

The plaintiff also claimed negligent infliction of emotional distress. To establish that claim, the plaintiff must show that “the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.” (Internal quotation marks omitted.) Perodeau v. Hartford, 259 Conn. 729, 749, 792 A.2d 752 (2002). “[Recovery for unintentionally-caused emotional distress does not depend on proof of either an ensuing physical injury or a risk of harm from physical impact.” (Internal quotation marks omitted.) Id. A plaintiff is not “entitled to damages for emotional distress unless the [plaintiff can establish] that the defendant knew or should have known that [the defendant’s] conduct gave rise to an unreasonable risk of causing emotional distress that might result in illness or bodily harm.” Scanlon v. Connecticut Light & Power Co., 258 Conn. 436, 445, 782 A.2d 87 (2001).

Having concluded that the plaintiffs failed to show any negligence on the part of the defendants, the court’s conclusion that the plaintiffs emotional distress was not caused by the negligence of the defendants was legally and logically correct. The general conclusion of the court was that the plaintiff “was distressed and humiliated that she had spent large sums of money for the intervention with such dismal results.” The thinning of her hair, however, was to be expected due to “the natural process of continued hair thinning, which had been occurring for some years prior to the intervention,” rather than the negligence of the defendants. Her “disappointment in the hairpiece, its removal and her resulting emotional distress cannot be laid” at the defendants’ door. On the basis of the evidence and the law, we agree.

II

BREACH OF CONTRACT

The plaintiffs claim that the court improperly concluded that the defendants did not breach their contract. The defendants argue that the plaintiffs failed to show any breach of contract.

James Roach entered into a contract with the defendants on June 24, 1996. By the terms of the contract, the defendants were to install the Ivari device for Alicia Roach, and James Roach was to pay for the installation. The defendants performed their part of the contract on August 18 and 19, 1996, when the installation was complete. The breach alleged by the plaintiffs was that the installation caused “deleterious” results. The defendants’ promise based on the contract, however, did not purport to promise a specific result, but only promised to install the device. The contract provided only that the defendants would install a hairpiece in a nonsurgical procedure, but it did not provide that the defendants would maintain the device. The court’s findings that the defendants “did the intervention skillfully, carefully, diligently and in a workmanlike manner” are supported by the record and are not clearly erroneous. Those findings support the court’s conclusion that the defendants did not breach their contract.

The judgment is affirmed.

In this opinion the other judges concurred.

       “Plaintiff’ in the singular as used in this opinion refers to Alicia Roach. James Roach, her husband, seeks damages for the sums he expended or will expend for treatment of his wife’s hair loss. The defendants are Ivari International, Inc., and Ivari International Centers, Inc., corporations with principal places of business in Beverly Hills, California, and New York, New York, respectively, and Edward Ivari. The words “defendants” or “Ivari” refer to the corporate entities or their representatives because there was no evidence as to any individual acts or liability of Edward Ivari.

       The court described the industry as a “hair extension industry for a microcylinder attachment procedure” or “a surgical glue attachment procedure.”

       The court found that as explained by the representative, the “intervention involves use of skeins of natural donor hair. Each skein consists of a line of hairs attached to a thread about one inch in length. The threads are then attached end to end in concentric circles over the client’s head. The circles of thread are then anchored to each other by separate threads, which radiate from the center so that the underside of the resulting hairpiece resembles a spider’s web. The client’s natural hair is attached to the hairpiece by forty to sixty separate threads. Each of those threads is attached at one end to the web and at the other end to a tiny metal clamp around a few strands of natural hair at the scalp. Every few weeks, as the natural hair grows out from the scalp, the hairpiece loosens on the head. This places increased tension on the natural hair to which the microcylinders are attached and can cause hair breakage.”

       The court found that a maintenance procedure, according to the Ivari representative, “is necessary wherein the clamps must be removed and replaced closer to the scalp. A maintenance tightens the hairpiece on the client’s head.” Although maintenance is recommended, the contract did not provide that the defendants were to supply it. The contract stated only that adjustment to the microcylinders was recommended “4 to 8 times per year” and “may be performed at any one of [Ivari’s] international centers, cost of which is not covered under this contract.” (Emphasis added.) The contract price did not include any maintenance by the defendants and provided that the plaintiff or “someone around” the plaintiff could be taught the adjustment process.

       Although the contract was executed in New York state and was performed in California, the parties and the court treated (he case as one governed by Connecticut law. The only Connecticut nexus is the domicile of the plaintiffs. Because the case does not rest on a statute or statutes that might vary among the states and the parties did not argue at trial that another state’s law applies, we have decided (he case without any consideration of conflict of laws principles.

       The allegations of negligence in the plaintiff’s amended complaint were that the defendants had “failed to warn the [pjlaintifif that said installation would cause scalp discomfort and itching”; failed to inform the [pjlaintiff that the device when installed was likely to break or pull out sections of her scalp hair”; “failed to inform the [pjlaintiff that the installation of th[e] device would cause her to lose additional hair”; and “sold to the [pjlaintiff a device and installed the same and she was concerned about thinning hair and said installation caused that condition to become worse.”
      The alleged breach of contract was that the “aforementioned problems and need for remediation constitutes a breach of . . . contract . . . .” The allegation of infliction of emotional distress was that the defendants knew or should have known that “the carelessness and negligence of the installation and maintenance” would cause the plaintiff to suffer “generous amounts of hair loss and [that] the resultant disfigurement . . . would cause emotional distress likely to result in physical harm . . . .”

       The defendants claim that the plaintiffs’ complaint does not allege negligence arising from the installation of the hairpiece, but negligence from a duty to warn. The plaintiffs, however, did allege in paragraph 7A (d) of the negligence count that the defendants had been negligent in the sale and installation of the device.

       In view of the court’s finding that the Ivari hairpiece was the functional equivalent of a wig, the court could have concluded that the plaintiffs’ claims could be decided as a matter of common knowledge. See Santopietro v. New Haven, supra, 239 Conn. 225.

       Alicia Roach did not enter into a 'written contract with the defendants, as alleged in the count of her complaint alleging breach of contract. Also, she has not alleged in her complaint that there was a contract based on the oral representations the defendants had made to her. She has not claimed in her complaint or in her arguments to this court or to the trial court that she is a third party beneficiary of the contract as the “client” in the contract on whose scalp the intervention device was to be installed. We need not consider, however, whether Alicia Roach could recover individually in her breach of contract claim because of the conclusions of the trial court that there was no breach of contract, with which we agree.


author: LAVERY, C. J. LANDAU, J.,

text:
    MOHINDER P. CHADHA v. CHARLOTTE HUNGERFORD HOSPITAL ET AL.
    (AC 22395)
    Lavery, C. J., and Foti and Landau, Js.

      Argued September 26, 2002
    officially released May 27, 2003

      Jeffrey R. Babbin, with whom was Bethany L. Appleby, for the appellants (named defendant et al.).

      Mohinder P. Chadha, pro se, the appellee (plaintiff).
   Opinion

LAVERY, C. J.

The defendants Charlotte Hungerford Hospital (hospital), Samuel Langer, Michael Kovalchik and Justin O. Schechter appeal from the judgment of the trial court denying their motion for summary judgment. The dispositive issue on appeal is whether the court improperly concluded that the defendants were not entitled to absolute immunity from suit due to the common-law rule that confers such immunity on persons who make statements in connection with quasi-judicial proceedings. We affirm the judgment of the trial court.

The record reveals the following facts and procedural history. In February, 1997, the plaintiff, Mohinder P. Chadha, a licensed psychiatrist, was a member of the hospital medical staff with admitting privileges. On March 3,1997, the hospital contacted the impaired physician program of the Connecticut State Medical Society (medical society) regarding its concerns about the plaintiff’s ability to practice medicine with reasonable skill and safety. The department of public health filed a “statement of charges,” dated May 13, 1997, against the plaintiff with the Connecticut medical examining board (board) requesting that it “revoke or take any other action . . . against the medical license of [the plaintiff] as it deems appropriate and consistent with law.” On May 14, 1997, Langer, Kovalchik, Schechter and Robert Stine, physicians licensed to practice in the state of Connecticut, submitted affidavits to the department of public health expressing concerns about the plaintiffs ability to practice psychiatry safely. On May 20, 1997, the board ordered the summary suspension of the plaintiff’s license to practice medicine pending a final determination by the board. On November 27,1997, the hospital submitted a report to the National Practitioner Data Bank pursuant to 42 U.S.C. § 11133 (a). In January, 1998, the board issued a final decision ordering the immediate suspension of the plaintiffs license to practice because he had written ten prescriptions for controlled substances while his license was under suspension.

In July, 2000, the plaintiff filed a twenty-one count amended complaint against the hospital, Langer, Kovalchik, Schechter and Stine. Thereafter, the court struck or dismissed all but five of the counts. The first of the remaining counts sounded in defamation and claimed that the hospital had submitted a false report to the National Practitioner Data Bank. The other four counts alleged that Langer, Kovalchik, Schechter and Stine maliciously had submitted false affidavits to the department of public health. The defendants answered the remaining portions of the plaintiffs amended complaint and asserted several special defenses, including absolute immunity for statements made in connection with quasi-judicial proceedings and qualified immunity pursuant to General Statutes §§ 19a-20 and 19a-17b.

On February 7,2001, the defendants filed a motion for summary judgment. On July 31, 2001, the court granted summary judgment on the claim that the hospital maliciously had submitted a false report to the National Practitioner Data Bank. The court denied summary judgment on claims that the physicians maliciously had submitted false affidavits to the department of public health. In its memorandum of decision, the court con-eluded that the defendants were protected by qualified immunity, pursuant to §§ 19a-20 and 19a-17b, and that qualified immunity and not absolute immunity applied to the defendants’ submission of affidavits to the department of public health because the qualified immunity statutes, §§ 19a-20 and 19a-17b, abrogate the common-law absolute immunity provided to persons who make statements in connection with quasi-judicial proceedings.

Although the court concluded that the plaintiff had failed to present any proof of actual malice, which is necessary to overcome the qualified immunity provided by §§ 19a-20 and 19a-17b, it nevertheless denied the defendants’ motion because it found that they had failed to meet their burden pursuant to Practice Book § 17-45 et seq. More particularly, the court stated that there were no documents submitted with the defendants’ motion that addressed the physicians’ affidavits and that, by not submitting any proof countering the plaintiffs allegations that the defendants had acted with malice, the defendants failed to meet their burden of submitting supporting documentation establishing that there was no genuine issue of material fact as to the issue of malice. This appeal followed.

On appeal, the defendants claim that the court improperly denied their motion for summary judgment on the remaining four counts. Specifically, they claim that the court improperly determined that they were not protected by absolute immunity for the statements contained in their affidavits. We disagree.

Initially, we note that the denial of a motion for summary judgment is not, ordinarily, an appealable final judgment. Young v. Metropolitan Property & Casualty Ins. Co., 60 Conn. App. 107, 112, 758 A.2d 452, cert. denied, 255 Conn. 906, 762 A.2d 912 (2000). Where, however, an interlocutory “order or action so concludes the rights of the parties that further proceedings cannot affect them,” the interlocutory order may constitute a final judgment. State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983). In Shay v. Rossi, 253 Conn. 134, 167, 749 A.2d 1147 (2000) (en banc), our Supreme Court determined that the “denial of a motion to dismiss, filed on the basis of a colorable claim of sovereign immunity, must be regarded under Curcio as an immediately appealable final judgment.” Similarly, we regard this denial of a motion for summary judgment, which was filed, inter alia, on the basis of a colorable claim of absolute immunity, as an immediately appealable final judgment under Curcio. See id. We therefore will review the defendants’ claim that the court improperly concluded that they were not entitled to absolute immunity for the statements contained in their affidavits.

The defendants claim that the court improperly determined that §§ 19a-20 and 19a-17b abrogate the common-law absolute immunity provided to persons who make statements in connection with quasi-judicial proceedings. The defendants in their principal brief assert several arguments in support of their claim that the qualified immunity provided by §§ 19a-20 and 19a-17b does not supplant quasi-judicial absolute immunity and that, in fact, the qualified immunity provided by §§ 19a-20 and 19a-17b and the absolute immunity provided by the common law are concurrent; that is, that “where both an absolute and qualified immunity apply, the absolute immunity trumps the other.” We are not persuaded.

We first set forth our standard of review. The defendants’ claim involves a determination of the construction to be given §§ 19a-20 and 19a-17b in light of the common-law grant of absolute immunity to those who make statements in connection with quasi-judicial proceedings. Statutory construction presents a question of law, and our review is, therefore, plenary. State v. Marro, 68 Conn. App. 849, 855, 795 A.2d 555 (2002).

“The process of statutory interpretation involves a reasoned search for the intention of the legislature. ... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply. In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. . . . Thus, this process requires us to consider all relevant sources of the meaning of the language at issue, without having to cross any threshold or thresholds of ambiguity. Thus, we do not follow the plain meaning rule.

“In performing this task, we begin with a searching examination of the language of the statute, because that is the most important factor to be considered. In doing so, we attempt to determine its range of plausible meanings and, if possible, narrow that range to those that appear most plausible. We do not, however, end with the language. We recognize, further, that the purpose or purposes of the legislation, and the context of the language, broadly understood, are directly relevant to the meaning of the language of the statute.

“This does not mean, however, that we will not, in a given case, follow what may be regarded as the plain meaning of the language, namely, the meaning that, when the language is considered without reference to any extratextual sources of its meaning, appears to be the meaning and that appears to preclude any other likely meaning. In such a case, the more strongly the bare text supports such a meaning, the more persuasive the extratextual sources of meaning will have to be in order to yield a different meaning. . . . State v. Courchesne, 262 Conn. 537, 577-78, 816 A.2d 562 (2003).” (Emphasis in original; internal quotation marks omitted.) Grondin v. Curi, 262 Conn. 637, 649-50, 817 A.2d 61 (2003).

In the present case, we are not asked to determine the meaning or applicability of §§ 19a-20 or 19a-17b, as the parties are in agreement that the statutes are applicable to the defendants and that they provide qualified immunity to them. Instead, we are asked to determine the construction to be accorded where the qualified immunity provided by §§ 19a-20 or 19a-17b intersects with the absolute immunity that the common law provides to those who make statements in connection with quasi-judicial proceedings. Specifically, we are asked to determine whether the qualified immunity provided by §§ 19a-20 and 19a-17b abrogates the common-law absolute immunity provided to those who make statements in connection with quasi-judicial proceedings. We conclude that it does.

“Of particular relevance in this case is the . . . principle that [w]hen a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of [statutory] construction. ... In determining whether or not a statute abrogates or modifies a common law rule the construction must be strict, and the operation of a statute in derogation of the common law is to be limited to matters clearly brought within its scope.” (Internal quotation marks omitted.) Spears v. Garcia, 263 Conn. 22, 28, 818 A.2d 37 (2003).

Turning to the merits of the issue before us, we begin our analysis with the relevant statutory language. Section 19a-17b (b) provides in relevant part: “There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any person who provides testimony, information ... or conclusions to any hospital, hospital medical staff . . . professional licensing board or medical review committee when such communication is intended to aid in the evaluation of the qualifications, fitness or character of a health care provider and does not represent as true any matter not reasonably believed to be true.” (Emphasis added.) Section 19a-20 provides in relevant part: “No member of any board . . . subject to the provisions of chapter [370] . . . and no person making a complaint or providing information to any of such boards ... or the Department of Public Health as part of an investigation pursuant to section 19a-14, or a disciplinary action pursuant to section 19a-17, shall, without a showing of malice, be personally liable for damage or injury to a practitioner arising out of any proceeding of such boards ... or department. ...” (Emphasis added.)

After examining the plain language and legislative histories of §§ 19a-20 and 19a-17b, we conclude that the language of those statutes unambiguously and clearly expresses the legislature’s will that those whose conduct or status places them within the purview of either of those statutes should be provided with protection from liability, but that that protection should be limited or qualified and not absolute. We therefore conclude that where the common-law grant of absolute immunity provided to those who make statements in connection with quasi-judicial proceedings would overlap with the qualified immunity provided by § 19a-20 or § 19a-17b, the statutes abrogate the common law.

In further support of our conclusion is the fact that in 1994, the legislature amended § 19a-20 to provide in relevant part: “A person making a complaint or providing information to any of such boards or commissions or to the Department of Public Health as part of an investigation pursuant to section 19a-14 or a disciplinary action pursuant to section 19a-17 shall be entitled to indemnification and defense in the manner set forth in section 5-141d with respect to a state officer or employee.” See Public Acts 1994, No. 94-174, § 2. That amendment further evinces the legislature’s intent to provide only a qualified immunity to those who fall within the purview of those statutes. The amendment applies to persons who make a complaint or provide information as part of an investigation pursuant to General Statutes § 19a-14 or a disciplinary action pursuant to § 19a-17. We find it difficult to imagine a person to whom the 1994 amendment to § 19a-20 would apply, who would not also be considered to have made the statements at issue in connection with a quasi-judicial proceeding. “[W]e presume that the legislature had a purpose for each sentence, clause or phrase in a legislative enactment, and that it did not intend to enact meaningless provisions.” (Internal quotation marks omitted.) State v. Ledbetter, 263 Conn. 1, 16, 818 A.2d 1 (2003). Had the legislature intended for those who are provided qualified immunity by § 19a-20 to be provided with absolute immunity just because their statements were made in connection with a quasi-judicial proceeding, it would have no reason to provide those very same people with indemnification and defense. Instead, it is apparent that the 1994 amendment is in keeping with the legislature’s intent to provide only a qualified immunity to those whose status or conduct places them within the purview of either of those statutes.

We can presume that the legislature provided only a qualified immunity to those covered by the statutes for a reason; it wanted to discourage individuals who otherwise would be protected by those statutes from acting out of an improper motive. See, e.g., Leyba v. Renger, 114 N.M. 686, 845 P.2d 780 (1992). In Leyba, the court stated: “The members of peer review committees are often in direct competition with those being reviewed, and the system has the potential for abuse of the person being reviewed. Possession of hospital privileges ... is crucial to a physician’s success, and a negative decision could be tantamount to excluding a doctor from the profession as a whole. . . . This potential for abuse has been recognized by other courts. See, e.g., Nurse Midwifery Associates v. Hibbett, 918 F.2d 605, 614 (6th Cir. 1990) (noting that anticompetitive concerns are raised when competing physicians are making privilege recommendations concerning a competitor) [modified on other grounds, 927 F.2d 904], cert. denied, 502 U.S. 952, 112 S. Ct. 406, 116 L. Ed. 2d 355 (1991); Memorial Hospital for McHenry County v. Sha dur, 664 F.2d 1058, 1063 (7th Cir. 1981) (pointing out the potential for physicians to use the framework of peer review groups for anticompetitive purposes).” (Citations omitted.) Leyba v. Renger, supra, 689. Had the legislature wanted to provide absolute immunity to those who fall within the ambit of §§ 19a-20 or 19a-17b, it could have done so. It chose not to.

The defendants, nevertheless, assert several arguments in support of their claim that §§ 19a-20 and 19a-17b do not abrogate the common-law absolute immunity provided to persons who make statements in connection with quasi-judicial proceedings. They first argue, in their principal brief, that certain principles of statutory construction support their position that it would be improper “to reduce the [defendants’] protection by removing the blanket of [absolute] immunity simply because qualified immunity might also apply.” Although the principles of construction cited by the defendants are perfectly valid as principles of construction, we do not find them to be controlling in this case. Instead we are persuaded by the principle that “[t]he body of our common law, which serves to supplement the corpus of statutory enactments, is powerless to abrogate the latter, either in whole or in part. Validly expressed legislative will must always control over contrary notions of the unwritten law. When in pari materia, statutory law and the precepts of either preexisting or after-declared common law are to be construed together as one consistent and harmonious whole.” (Internal quotation marks omitted.) Thibodeau v. Design Group One Architects, LLC, 260 Conn. 691, 717, 802 A.2d 731 (2002).

The defendants also cite several cases in support of their position that “where both an absolute immunity and qualified immunity apply, the absolute immunity trumps the other.” Most of the cases cited by the defendants are factually inapposite to the case before us because they do not involve the situation where quasi-judicial immunity overlaps with a statutory grant of qualified immunity. The defendants do, however, cite Attaya v. Shoukfeh, 962 S.W.2d 237 (Tex. App. 1998), a Texas case that is analogous to this case and does support their position. In that case, the Texas Court of Appeals determined that “the qualified immunity provisions of the [Texas] Medical Practice Act does not repeal, destroy, diminish or supercede common law absolute immunity.” Id., 239. In its opinion, the court reasoned that “[qualified immunity alone, whether by statute or common law, does not adequately protect the party informant’s interest or promote the board’s government function,” Id., 239-40. The court, in essence, based its decision on policy reasons. While we recognize that there is a policy reason for granting individuals absolute immunity for statements made in connection with quasi-judicial proceedings; see Preston v. O’Rourke, 74 Conn. App. 301, 311, 811 A.2d 753 (2002); see also Petyan v. Ellis, 200 Conn. 243, 246, 510 A.2d 1337 (1986); we disagree with the Texas Court of Appeals because we are not convinced that the general policy announced by the courts of granting absolute immunity to those who make statements in connection with quasi-judicial proceedings should overcome the legislature’s validly expressed will, which is to provide a qualified, but not absolute, immunity to those who fall within the purview of § § 19a-20 or 19a-17. See Thibodeau v. Design One Group Architects, LLC, supra, 260 Conn. 713-14, 717. Moreover, §§ 19a-20 and 19a-17b are, themselves, an expression of the public policy that exists in this state. See id., 706. The statutes express a legislative policy decision to accord certain individuals, whose status or conduct places them within the purview of one or both of those statutes, with a qualified immunity. See id., 708. We are not free to disregard the legislative policy determination contained in these statutes. See id. (“we may not ‘ignore [a] statement of public policy that is represented by a relevant statute’ ”).

We note that the Supreme Court of New Mexico’s decision in Leyba v. Renger, supra, 114 N.M. 686, supports our conclusion here. In that case, the court was asked to determine whether the enactment of the New Mexico Review Organization Immunity Act (NMROIA), which provided a qualified immunity to members of certain peer review organizations and to persons providing information to those organizations, abrogated the quasi-judicial absolute immunity created by Franklin v. Blank, 86 N.M. 585, 525 P.2d 945 (N.M. App. 1974). The court held that “[t]he qualified immunity set out in the NMROIA conflicts with the common-law absolute immunity of Franklin. It would be contrary to the intent of the legislature to accord absolute immunity in quasi-judicial proceedings when the hospital review committee members are specifically accorded limited qualified immunity by statute.” Leyba v. Renger, supra, 782. We agree with the reasoning of the Supreme Court of New Mexico.

The defendants finally argue that §§ 19a-20 and 19a-17b apply to a broader range of conduct than is protected by quasi-judicial absolute immunity in that §§ 19a-20 and 19a-17b ostensibly cover certain conduct and activities that would not be considered quasi-judicial in nature, and, thus, the “correct analysis is that the reference to ‘malice’ in [§ 19a-20] provides qualified immunity only where absolute immunity did not already attach to a defendant’s actions.” We disagree.

We are again guided by the principles that the legislative will must control over contrary notions of the common law and that the common law may not abrogate statutory enactments, either in whole or in part. Thibodeau v. Design Group One Architects, LLC, supra, 260 Conn. 717. In the present case, the legislature expressed its will that those who fall within the ambit of §§ 19a-20 or 19a-17b should be protected by a qualified immunity. Although it is apparent that the legislature wanted to provide those who fall within the parameters of §§ 19a-20 or 19a-17b with considerable protection, it is also apparent that the legislature did not want to foreclose a plaintiff from bringing an action if the plaintiff could overcome the burden specified in those statutes.

We conclude, therefore, that where the statutory immunity provided by §§ 19a-20 or 19a-17b overlaps with the common-law provision of absolute immunity to those who make statements in connection with quasi-judicial proceedings, the statutes are in derogation of the common law and must prevail over the common-law grant of absolute immunity.

In addition to the defendants’ claim that the court improperly determined that they were not entitled to absolute immunity, the defendants also claim that the court improperly determined that they were not entitled to summary judgment on the basis of qualified immunity. Specifically, the defendants argue (1) that the court improperly determined that they were required to rebut the plaintiffs allegations that they had acted maliciously in publishing their affidavits, (2) that the plaintiff bore the burden of providing a factual basis for his contention that the defendants had acted with malice and (3) that because, as the court found, the plaintiff had failed to meet his burden of providing a factual basis for his contention that the physicians had acted with malice, the defendants were entitled to summary judgment.

As we have stated previously, the denial of a motion for summary judgment is an interlocutory order and, as such, it is not ordinarily an appealable final judgment. Westbrook v. ITT Hartford Group, Inc., 60 Conn. App. 767, 775, 761 A.2d 242 (2000); Young v. Metropolitan Property & Casualty Ins. Co., supra, 60 Conn. App. 112. Because the court’s denial of the defendants’ motion for summary judgment, on the ground that under our rules of practice they did not meet their burden of submitting supporting documentation establishing that there was no genuine issue of material fact, did not “[terminate] a separate and distinct proceeding” or “so [conclude] the rights of the parties that further proceedings cannot affect them”; State v. Curcio, supra, 191 Conn. 31; we do not address the defendants’ claim, as the denial of summary judgment on those grounds is not an appeal-able final judgment. See id.; see also Connecticut National Bank v. Rytman, 241 Conn. 24, 33-34, 694 A.2d 1246 (1997).

The judgment is affirmed.

In this opinion FOTI, J., concurred.

LANDAU, J.,

concurring in part and dissenting in part.

I

For reasons of public policy, I respectfully dissent from the majority’s opinion that the defendants here are provided with only qualified immunity in quasi-judicial proceedings involving health care providers.

I agree with the reasoning of the Texas Court of Appeals in Attaya v. Shoukfeh, 962 S.W.2d 237 (Tex. App. 1998), in which the court stated that “the qualified immunity provisions of the [Texas] Medical Practice Act [do] not repeal, destroy, diminish or supercede common law absolute immunity. Qualified immunity alone, whether by statute or common law, does not adequately protect the party informant’s interest or promote the board’s government function. In this connection, absolute immunity is necessary to encourage parties to fully utilize the governmental grievance process without fear or reprisal. Likewise, the mere threat of retaliatory lawsuits, however meritless, is sufficient to discourage physicians from complying with [the statute].” Id., 239-40.

As demonstrated by the procedural history of this case, qualified immunity comes too late in the day to ward off the chilling effect the threat of a lawsuit can have in the peer review process or on those who complain about physicians who are not or may not be able to provide competent medical care. If in time qualified immunity saves the day for the defendants and they are indemnified for their legal defense, it will come after years of litigation, involving time and stress on the parties and many judicial resources. Here, qualified immunity is as good as no immunity.

The position taken by the majority is a paradox in the face of absolute immunity afforded in other contexts where the courts of this state continue to recognize the protection it affords in quasi-judicial proceedings. See Petyan v. Ellis, 200 Conn. 243, 247-48, 510 A.2d 1337 (1986) (information supplied by employer on fact-finding supplement form of employment security division of state labor department entitled to absolute immunity); Preston v. O’Rourke, 74 Conn. App. 301, 309-15, 811 A.2d 753 (2002) (arbitration is quasi-judicial proceeding and testimony entitled to absolute immunity); Field v. Kearns, 43 Conn. App. 265, 273, 682 A.2d 148 (“bar grievants are absolutely immune from liability for the content of any relevant statements made during a bar grievance proceeding”), cert. denied, 239 Conn. 942, 684 A.2d 711 (1996).

Since Petyan, our Supreme Court and this court have held that witnesses, complainants and grievants enjoy absolute immunity in labor arbitrations and grievances filed against members of the bar. While I acknowledge that labor arbitrations and bar grievances generally involve matters of real and personal property, employment opportunity and large sums of money, to me, those matters pale by comparison with the life and death issues with which physicians and other health care professionals are concerned. It defies common sense that our law will protect a bar grievant or a witness in a labor dispute to prevent the chill of future litigation in the quest for the truth, but it will not provide the same degree of protection for health care providers during the course of a peer review or individuals filing complaints with the department of public health. By relying, in part, on the reasoning in Nurse Midwifery Associates v. Hibbett, 918 F.2d 605, 614 (6th Cir. 1990), modified on other grounds, 927 F.2d 904, cert. denied, 502 U.S. 952, 112 S. Ct. 406, 116 L. Ed. 2d 355 (1991), that physicians and health care providers who serve on peer review committees are often in competition with those being reviewed, does the majority assume that labor grievants, lawyers and others who submit their disputes to arbitration are not in competition with one another?

For the foregoing reasons, I respectfully dissent.

II

Although I believe that the defendants’ first claim is controlling of this appeal, I agree with the majority’s conclusion regarding the defendants’ claim that the court improperly denied their motion for summary judgment because the burden was on the plaintiff to demonstrate a genuine issue of material fact as to malice. I agree that the basis of this claim is not a final judgment and that the claim is not properly before this court. See State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).

       The counts of the complaint raising allegations personally against a fifth defendant, Robert Stine, were struck, and he is not an appellant. We refer in this opinion to the hospital, Langer, Kovalchik and Schechter as the defendants.

       In 1988, the medical society entered into a participant association protocol agreement (protocol agreement) with the department of health services, now the department of public health. Pursuant to the protocol agreement, the medical society agreed to conduct its impaired physician program in accordance with the department’s protocol governing participation of established medical organizations in the implementation of Public Acts 1984, No. 84-148 (protocol), and thereby was approved as a “participant association” by the department. According to the terms of the protocol, a person or organization mandated to report information that appears to show that a physician is or may be unable to practice medicine with reasonable skill or safety may fulfill that obligation by notifying a participant organization.

       Langer, Kovalchik and Stine were physicians on staff at the hospital. Schechter was retained by the hospital to perform an independent review of medical records of some of the plaintiffs patients.

       The plaintiffs license was to be suspended until the plaintiff entered counseling in accordance with the board’s decision and provided a copy of the first session to the board. Once the plaintiff complied with those conditions, he was to be placed on probation for five years.

       Stine is not a defendant in any of the remaining counts. The plaintiffs claims with respect to Stine’s conduct in one of the remaining counts were directed against the hospital under a theory of respondeat superior.

       General Statutes § 19a-20 provides: “No member of any board or commission subject to the provisions of chapter 368v, chapters 369 to 375, inclusive, 378 to 381, inclusive, 383 to 388, inclusive, 398 and 399, including a member of a medical hearing panel established pursuant to subsection (g) of section 20-8a, and no person making a complaint or providing information to any of such boards or commissions or the Department of Public Health as part of an investigation pursuant to section 19a-14, or a disciplinary action pursuant to section 19a-17, shall, without a showing of malice, be personally hable for damage or injury to a practitioner arising out of any proceeding of such boards and commissions or department. A person making a complaint or providing information to any of such boards or commissions or to the Department of Public Health as part of an investigation pursuant to section 19a-14 or a disciplinary action pursuant to section 19a-17 shall be entitled to indemnification and defense in the manner set forth in section 5-141d with respect to a state officer or employee.”

       General Statutes § 19a-17b (b) provides: “There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any person who provides testimony, information, records, documents, reports, proceedings, minutes or conclusions to any hospital, hospital medical staff, professional society, medical or dental school, professional licensing board or medical review committee when such communication is intended to aid in the evaluation of the qualifications, fitness or character of a health care provider and does not represent as true any matter not reasonably believed to be true.”

       The court’s granting of summary judgment on the first count is not at issue in this appeal. Although the court granted the motion for summary judgment in favor of the hospital on the first count, the hospital remains aggrieved by the denial of that motion with respect to the count against it on a theory of respondeat superior. See footnote 5.

       Practice Book § 17-45 provides in relevant part that “[a] motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like. . . .” Practice Book § 17-49 provides that summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.”

       Although the legislative history of General Statutes §§ 19a-17b and 19a-20 is relatively bereft on the particular statutory provisions at issue, what little there is supports the conclusion that the legislature meant the statutes to provide a qualified immunity to those whose conduct or status places them within the purview of one of these statutory sections. Representative Robert G. Gilligan, summarizing what would eventually become subsections (b) and (c) of § 19a-17b before the House of Representatives stated: “This amendment extends immunity from civil liability to any person who provides testimony or information to a medical review committee for the purpose of evaluating the qualifications, fitness or character of a health care provider if the information does not represent as true any matter not reasonably believed to be true. Section 3 of the Amendment extends immunity from civil liability to members of medical review committees for any actions taken if the actions were taken without malice and [in] the reasonable belief that the action was warranted.” 19 H.R. Proc., Pt. 6, 1976 Sess., p. 2382.

       General Statutes § 5-141d provides in relevant part: “(a) The state shall save harmless and indemnify any state officer or employee, as defined in section 4-141, and any member of the Public Defender Services Commission from financial loss and expense arising out of any claim, demand, suit or judgment by reason of his alleged negligence or alleged deprivation of any person’s civil rights or other act or omission resulting in damage or ii\juiy, if the officer, employee or member is found to have been acting in the discharge of his duties or within the scope of his employment and such act or omission is found not to have been wanton, reckless or malicious.
      “(b) The state, through the Attorney General, shall provide for the defense of any such state officer, employee or member in any civil action or proceeding in any state or federal court arising out of any alleged act, omission or deprivation which occurred or is alleged to have occurred while the officer, employee or member was acting in the discharge of his duties or in the scope of his employment, except that the state shall not be required to provide for such a defense whenever the Attorney General, based on his investigation of the facts and circumstances of the case, determines that it would be inappropriate to do so and he so notifies the officer, employee or member in writing. . . .”

       The 1994 amendment provides indemnification and defense to the same people to whom the rest of General Statutes § 19a-20 applies except that the amendment does not provide indemnification and defense to members of the various boards, commissions or medical hearing panels, all of which entities’ members are provided with qualified immunity by § 19a-20.

       The label quasi-judicial is applied to a fairly broad spectrum of proceedings that would appear to us to include almost any complaints or proceedings before the various boards and commissions referenced in General Statutes § 19a-20. “[I]n determining whether a proceeding is quasi-judicial . . . our review is not limited to the label of the proceeding, but includes a review of the proceeding itself. The principal factors to be considered are whether the body has the power to: (1) exercise judgment and discretion; (2) hear and determine or to ascertain facts and decide; (3) make binding orders and judgments; (4) affect the personal or property rights of private persons; (5) examine witnesses and hear the litigation of the issues on a hearing; and (6) enforce decisions or impose penalties. . . . Further, quasi-judicial is defined as the action, discretion, etc., of public administrative officers or bodies, who are required to investigate facts, or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from them, as a basis for their official action, and to exercise discretion of a judicial nature.” (Internal quotation marks omitted.) Preston v. O’Rourke, 74 Conn. App. 301, 309-10, 811 A.2d 753 (2002); see also Petyan v. Ellis, 200 Conn. 243, 246, 510 A.2d 1337 (1986) (“[Jjudicial proceeding to which the immunity attaches . . . includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not. ... It extends also to the proceedings of many administrative officers, such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial or quasi-judicial, in character. . . . This privilege extends to every step of the proceeding until final disposition. . . . [L]ike the privilege which is generally applied to pertinent statements made in formal judicial proceedings, an absolute privilege also attaches to relevant statements made during administrative proceedings which are quasi-judicial in nature.” [Citations omitted; internal quotation marks omitted.]).

       The defendants cite Colon v. Board of Education, 60 Conn. App. 178, 758 A.2d 900, cert. denied, 255 Conn. 908, 763 A.2d 1034 (2000), for the proposition that “[a] statute should not be construed as altering the common law rule, farther than the words of the statute import, and should not be construed as making any innovation upon the common law which the statute does not fairly express”; (internal quotation marks omitted) id., 183-84; and that “statutes are not readily interpreted as abrogating common law rights.” (Internal quotation marks omitted.) Id., 184.
      Although the principles cited by the defendants are perfectly valid, we do not view our decision in this case as being in any way violative of those principles. Indeed we are not altering the common-law rule further than the words of the statute import, nor are we “making any innovation upon the common law which the statute does not fairly express.” (Internal quotation marks omitted.) Id., 183-84. Last, although we have determined that General Statutes §§ 19a-17b and 19a-20 abrogate quasi-judicial absolute immunity, we are mindful that “statutes are not readily interpreted as abrogating common law rights.” (Internal quotation marks omitted.) Colon v. Board of Education, supra, 60 Conn. App. 184.

       Among the cases cited by the defendants are two federal District Court cases that are factually similar to this case and apply Connecticut law. See Fink v. Magner, 988 F. Sup. 74, 82-83 (D. Conn. 1997); Victoria v. O’Neill, 688 F. Sup. 84, 90-92 (D. Conn. 1988). Both cases held that the defendants were entitled to absolute immunity. In neither case, however, did the court even mention the existence of General Statutes §§ 19a-20 or 19a-17b. Thus, those courts did not determine the issue now before us, and, furthermore, it is not apparent whether they were even aware that our legislature has chosen to provide a qualified immunity to people whose status or conduct places them within the purview of §§ 19a-20 or 19a-17b.

       Although the defendants argue that General Statutes §§ 19a-17b and 19a-20 apply to conduct and activities that would not be considered quasi-judicial in nature, we believe that almost any conduct protected by § 19a-20 would be considered to have occurred in connection with a quasi-judicial proceeding. See footnote 12.

       See Woodcock v. Journal Publishing Co., 230 Conn. 525, 546, 646 A.2d 92 (1994) (proving malice is difficult), cert. denied, 513 U.S. 1149, 115 S. Ct. 1098, 130 L. Ed. 2d 1066 (1995); General Statutes § 19a-20 (providing indemnification, defense to certain individuals bringing complaints or providing information to boards, commissions described in statute).