author: Dupont, C. J.

text:
    Claire D. Friedlander v. Henry Z. Friedlander
    (3337)
    Dupont, C. J., Borden and Spallone, Js.

      Henry Z. Friedlander, pro se, the appellant (defendant).

      Saul Kwartin, for the appellee (plaintiff).
   Dupont, C. J.

This case is another chapter in what has become a bitter and protracted marital dissolution dispute. Friedlander v. Friedlander, 191 Conn. 81, 90, 463 A.2d 587 (1983). In this chapter, the defendant husband filed a postjudgment motion requesting that the trial court order the sale of the former marital residence of the parties. The trial court denied the motion and the defendant husband appealed.

“The parties were married in 1961. They have two children, Jeffrey, born in 1963, and Joel, born in 1966. The parties were divorced on August 19, 1971. The court approved the parties’ written separation agreement and ordered it placed in the file of the case. As part of the judgment, the court awarded the plaintiff wife, inter alia, custody of the two sons, $5000 lump sum alimony, and the right to occupy the family home at 33 Lolly Lane, Stamford, which is jointly owned by the parties.” Id., 83.

The plaintiff wife’s right to occupy that home is the subject of this appeal. The dissolution judgment provided: “The plaintiff shall have the right to occupy the jointly owned home of the parties at No. 33 Lolly Lane, Stamford, Connecticut, until the children attain the age of twenty-one (21) years, marry, die, or become self-supporting, or if their custody is granted to the defendant, or until the plaintiff remarries, whichever event shall first occur. Upon the occurrence of any of the events contained in this Paragraph, the home shall be sold forthwith, and the net proceeds as hereinafter defined shall be divided equally between the parties.” The written separation agreement of the parties contained substantially the same wording. The provision appears in a paragraph of the separation agreement entitled “Occupancy of Home.”

The defendant argues that the plaintiffs right to occupy the family home is limited to the time period in which the children have not reached the age of majority because the award of the use and occupancy of the marital residence was in recognition of the defendant’s support obligation to his children. The original judgment was rendered in August of 1971. In 1972, the age of majority in Connecticut was changed from twenty-one years to eighteen years. Public Acts, Spec. Sess., June, 1972, No. 127, § 1. The younger child of the parties had reached the age of eighteen years prior to the filing of the defendant’s motion.

The defendant relies on Sillman v. Sillman, 168 Conn. 144, 358 A.2d 150 (1975), and Kennedy v. Kennedy, 177 Conn. 47, 411 A.2d 25 (1979), to assert that the trial court was obliged to order the sale of the home if the plaintiff’s use and occupancy of the home was, in reality, child support. Both of those cases hold that without statutory authority, the courts lack subject matter jurisdiction to enforce, by contempt, orders involving child support for a child over eighteen years of age. In Kennedy v. Kennedy, supra, the court limited its ruling to facts involving an enforcement of a written separation agreement by way of a contempt motion. See also Blaydes v. Blaydes, 187 Conn. 464, 466 n.2, 446 A.2d 825 (1982). The present case does not involve the use of a contempt motion to enforce a written separation agreement.

This court has held that a separation agreement is enforceable in a civil suit on the contract. Lavigne v. Lavigne, 3 Conn. App. 423, 425-26, 488 A.2d 1290 (1985). Even if the provision of the agreement involved in the present case were to be interpreted as relating solely to child support, the trial court would be correct in its judgment that the sale of the premises should not be ordered. The defendant is not seeking to enforce a written separation agreement by the use of the contempt power of the court, but, rather, is seeking the court’s aid in allowing him to disavow his contract. If the court were to have ordered the sale, it would have interfered with the contractual rights of the plaintiff. Private settlements of domestic financial affairs are to be encouraged and courts should support rather than undermine such agreements. Hayes v. Beresford, 184 Conn. 558, 568, 440 A.2d 224 (1981).

The trial court’s denial of the sale order is also supported because its characterization of the use and occupancy of the marital home as an award to the plaintiff is correct. Friedlander v. Friedlander, supra, 83. Further, the dissolution judgment terminates her right to occupy the home if she remarries or if she ceases to occupy the home as her home. Neither of these provisions is concerned with the majority or minority status of the children. The dissolution judgment provides her with a right to buy out the defendant’s interest in the property if she remarries. There is no clause in the dissolution judgment providing for an upward adjustment in child support payments if the home is sold prior to the time the children reach the age of majority. Presumably, such a contingency would have been provided for in the agreement if the use and occupancy of the marital home were disguised child support, since the need for shelter for the children would continue to exist if she were to remarry.

Judgments in marital dissolution actions rendered by the court in accordance with the parties’ agreement are contracts approved by the court. Kenworthy v. Kenworthy, 180 Conn. 129, 131, 429 A.2d 837 (1980). The interpretation of such an agreement presents a question of fact for the trial court, a review of which is limited to deciding whether the trial court’s decision is clearly erroneous. Lavigne v. Lavigne, supra, 427. Applying that standard here, we find that the trial court’s finding was not clearly erroneous. A reasonable interpretation of the language in question was that it was not an award for child support.

There is no error.

In this opinion the other judges concurred.

       The resolution of this claim of error makes it unnecessary to address a second claim of error which depended on a favorable disposition of the first claim of error.


source: Caselaw Access Project

license: Public Domain

text:
    Otis Marshall v. Yale Podiatry Group et al.
    (3594)
    Dupont, C. J., Borden and Spallone, Js.
    Argued June 11
    decision released August 20, 1985

      Diane D. Ruben, with whom, on the brief, was Andrew R. Lubin, for the appellant (plaintiff).

      Dion W. Moore, for the appellees (defendants).
   Dupont, C. J.

This case presents the question of whether an orthopedic surgeon is qualified to testify as an expert as to the standard of care required in connection with the performance of foot surgery by a licensed podiatrist certified in the field of surgery.

This is a medical malpractice action arising out of surgery performed by the defendant Jeffrey Yale, a licensed podiatrist in Connecticut, on the plaintiffs right and left feet. Yale is an agent and employee of the defendant Yale Podiatry Group, P.C. His examination of the plaintiff disclosed a hallux limitus of the right foot (restricted, painful range of big toe motion) and a tailor’s bunion of the left foot. To alleviate the plaintiff’s condition, Yale operated on the plaintiff implanting an artificial joint in the plaintiff’s right, big toe and removing a portion of the plaintiff’s left small toe.

At trial, the plaintiff called Urelich Weil, an orthopedic surgeon, to testify to the applicable standard of care for such surgery. The defendants objected to Weil’s testifying, claiming that he was not qualified to testify as to the applicable standard of care. The trial court sustained the defendants’ objection and the plaintiff excepted. Weil was the plaintiff’s only expert witness and therefore the plaintiff rested since without his testimony the plaintiff could not prevail. See Pisel v. Stamford Hospital, 180 Conn. 314, 334, 430 A.2d 1 (1980). The defendants moved for a directed verdict, which the trial court granted. The plaintiff moved to set aside the verdict, which the trial court denied and the plaintiff appealed.

The standard of care to which physicians and surgeons are held is “that which physicians and surgeons in the same general neighborhood and in the same general line of practice ordinarily have and exercise in like cases.” Force v. Gregory, 63 Conn. 167, 169, 27 A. 116 (1893). When the court formulated that test, the “same general neighborhood” was interpreted as a territorial limitation restricted to the confines of the community in which the doctor practiced. In Geraty v. Kaufman, 115 Conn. 563, 162 A. 33 (1932), the “general neighborhood” was considered the state of Connecticut. It has now been broadened to include the entire nation. Van Steensburg v. Lawrence & Memorial Hospitals, 194 Conn. 500, 506-507 n.8, 481 A.2d 750 (1984). These cases reveal a trend towards the liberalization of the rules involving the qualifications of medical experts.

Although the issue of this case does not involve the geographical limitation on medical expert testimony, but rather the “general line of practice” limitation on expert medical testimony offered in a medical malpractice action, the liberalization of the evidentiary rules regarding the former limitation are relevant in analyzing the latter limitation.

Our analysis of cases starts with Fitzmaurice v. Flynn, 167 Conn. 609, 356 A.2d 887 (1975), where the court found that the trial court erred in excluding the plaintiffs expert, a practicing surgeon specializing in breast cancer surgery, from testifying as to the proper medical standards of practice among obstetrician-gynecologists pertaining to breast examinations. In that case, the testimony was “that breast lump examinations are performed in exactly the same manner by obstetrician-gynecologists and surgeons; and that these two specialties are identical with respect to breast lump examination and diagnosis.” Id., 615. The threshold question of admissibility is governed by the scope of the witness’ knowledge and not the artificial classification of the witness by title. Id., 618.

Our appellate courts have had occasion to address this issue since that case. In Katsetos v. Nolan, 170 Conn. 637, 646-47, 368 A.2d 172 (1976), the court held that where the evidence presented at trial showed that the treatment in question falls within the field of all medical specialties and the minimum standard of care was common to all specialties, the plaintiff’s medical experts were competent to testify as to the applicable standard of care, although not specialists in the same field as the defendants. In Buckley v. Lovallo, 2 Conn. App. 579, 584-86, 481 A.2d 1286 (1984), the plaintiff offered two plastic surgeons as expert witnesses on the standard of care for performing a breast reduction operation, although the defendant performing the surgery was a general surgeon. That defendant moved for a directed verdict, arguing that the plaintiff failed to present sufficient evidence to establish the applicable standard of care. The trial court denied that motion and was upheld on appeal. One of the plastic surgeons testified that the standard of care applicable for performing the surgery was the same for plastic surgeons and general surgeons. Id., 585. The common thread tying these decisions together is that where the evidence indicates that the specialties overlap and the applicable standard of care is common to each, a medical expert from either of the overlapping groups who is familiar with that common standard is competent to testify as to the standard of care.

Connecticut has not previously considered whether an orthopedic surgeon can testify as an expert against a podiatrist in a malpractice action. Other jurisdictions, however, have addressed this issue, reaching varying decisional results. The Ohio Supreme Court, citing a Connecticut case, Katsetos v. Nolan, supra, held that the plaintiffs medical expert, a podiatrist, was competent to testify as to the alleged malpractice, applying and failing to remove a cast which was too tight, by the defendant orthopedic surgeon. Alexander v. Mt. Carmel Medical Center, 56 Ohio St. 2d 155, 383 N.E.2d 564 (1978). The record disclosed that the application and removal of casts is an area where these fields of medicine overlap. The court, therefore, concluded that the podiatrist was qualified to testify as an expert. Id., 162. The Georgia Court of Appeals addressed this issue, holding that where the evidence indicates the fields overlap and the methods of treatment are the same for the schools involved, an orthopedic surgeon can testify as an expert as to the standard of care which must be exercised by a podiatrist. Sandford v. Howard, 161 Ga. App. 495, 288 S.E.2d 739 (1982). The California Court of Appeals has addressed the analogous issue of whether a podiatrist can testify as to the applicable standard of care of an orthopedic surgeon performing foot surgery, holding that he can. Chadock v. Cohn, 96 Cal. App. 3d 205, 157 Cal. Rptr. 640 (1979). The record revealed a familiarity with the surgery and contained testimony that the fields overlapped. Id., 209-14.

There is, however, a line of authority excluding such testimony. The South Carolina Court of Appeals has held that an orthopedic surgeon was not competent to testify as to the applicable standard of care in a malpractice action against a podiatrist. Botehlo v. Bycura, 282 S.C. 578, 584-87, 320 S.E.2d 59 (S.C. App. 1984). The record there revealed that the orthopedic surgeon had never performed ambulatory foot surgery nor was he familiar with the surgical procedure performed. Id., 65. Likewise, the North Carolina Court of Appeals has excluded the testimony of an orthopedic surgeon on the applicable standard of care in a malpractice action against a podiatrist. Whitehurst v. Boehm, 41 N.C. App. 670, 255 S.E.2d 761 (1979). The record also revealed an unfamiliarity with the field of practice. Id., 676. The Illinois Supreme Court has considered whether “a plaintiff may establish the standard of care a podiatrist owes a patient by offering the testimony of a physician or surgeon, or another expert other than a podiatrist.” Dolan v. Galluzzo, 77 Ill. 2d 279, 281, 396 N.E.2d 13 (1979). The court held that “in order to testify as an expert on the standard of care in a given school of medicine, the witness must be licensed therein.” Id., 285. The dissent casts this as a mechanical and formalistic resolution of the issue. Id., 287. (Ward, J., dissenting.)

The decisions allowing and excluding expert testimony in this area generally focus on the expert’s familiarity with the school of medicine and the procedures involved. To resolve this issue in the context of this case requires an examination of the testimony proffered to qualify Weil as an expert, in order to determine whether he possessed a sufficient familiarity with the school of medicine and the procedures involved.

In the absence of the jury, Weil was extensively examined regarding his qualifications to testify as an expert. He testified that he has performed hundreds of operations on the feet, that he was familiar with the surgical procedure performed on the plaintiff’s feet, and that he was familiar with the treatment, both conservatively and surgically, of keratosis and calluses upon the feet. Further, he testified that he had worked with almost all of the podiatrists in the New Haven area. They had referred patients to him for treatment and he had referred patients to them, generally for conservative treatment, but occasionally for surgical procedures performed in a hospital. He had observed and performed operations where more than one head and neck of a metatarsal was removed for neurological disorders of the feet. Here, the defendant podiatrist removed the fifth metatarsal of the plaintiffs left foot. In addition, the doctor testified that he had performed implant operations and was familiar with implants into the foot and toes, but had never performed an implant operation on the toes. He stated that he was familiar with the standard of care applicable to the treatment of keratosis and bunions and that the standard of care did not change simply because a podiatrist rather than an orthopedic surgeon treated the patient.

The defendant podiatrist testified that, in terms of foot surgery, orthopedic surgeons and podiatric surgeons generally performed the same procedures. He admitted that a certain medical text on surgery on the feet was authoritative. Weil expressed a familiarity with that text insofar as it pertains to the plaintiffs preoperative condition and the surgical and conservative nonsurgical techniques for the treatment of the plaintiffs condition. Although Weil had never performed or assisted in the surgical procedures involved in the treatment of the plaintiffs malady, this was so because he questioned the use of such procedures. The extensive offer of proof discloses that the plaintiffs expert had the requisite familiarity with the particular school of medicine and the procedure involved to substantiate that he had the necessary qualifications to give his opinion as to the standard of care.

There is error, the judgment is set aside and a new trial is ordered.

In this opinion the other judges concurred.

       The defendants argue that the plaintiff waived his right to claim error on the issue of whether the plaintiffs expert was qualified to testify since the directed verdict resulted from the plaintiffs tactical decision to rest. When the defendants filed their brief, the plaintiff moved to strike this portion of their brief since the defendants did not file a preliminary statement of issues presenting for review alternate grounds upon which the judgment might be affirmed. Practice Book § 3032. This court denied that motion without prejudice to its renewal at this time. This court now decides that the defendants’ claim is not properly before the court and therefore will not be considered.

       A reported decision of the New York trial court excluded a general surgeon from testifying as to the standard of care of podiatrists. Darby v. Cohen, 101 Misc. 2d 516, 421 N.Y.S.2d 337 (1979).


author: Borden, J.

text:
    Paula D'Arcy, Administratrix (Estates of Roy T. D’Arcy and Sarah E. D’Arcy) v. James F. Shugrue, Commissioner of Transportation
    (2516)
    Hull, Borden and Daly, Js.
    Argued May 14
    decision released August 20, 1985

      William F. Gallagher, with whom, on the brief, were Terence A. Zemetis and Joseph M. Delaney, for the appellant-appellee (defendant).

      Richard A. Bieder, with whom was Alex A. Knopp, for the appellee-appellant (plaintiff).
   Borden, J.

The plaintiff is the administratrix of the estates of her husband, Roy T. D’Arcy, and her daughter, Sarah E. D’Arcy. They died when their motor vehicle was struck on Interstate Highway 84 by another motor vehicle, operated by Chester Milton, who had lost control of his vehicle, crossed over the grassy median divider and collided with the D’Arcy vehicle.

The case involves the question of whether the failure of the defendant, the commissioner of transportation, to erect a metal beam divider at that point in the highway could rationally be found to be the sole proximate cause of the deaths of the D’Arcys. We hold that, under the circumstances of this case, as a matter of law the defendant’s negligence could not have been the sole proximate cause of their deaths.

On August 18, 1975, at approximately 4 p.m., Roy T. D’Arcy was operating his vehicle, in which the plaintiff and his daughter were passengers, in a westerly direction on Interstate 84, a divided, limited access state highway in Farmington. Milton was operating his vehicle at an excessive rate of speed in an easterly direction on the other side of the highway when he lost control of his vehicle. He crossed the grassy median divider at a point at which there was no barrier and collided with the D’Arcy vehicle in the westbound lane. The collision caused the deaths of Roy T. D’Arcy and Sarah E. D’Arcy. The plaintiff sued the defendant pursuant to General Statutes § 13a-144, which imposes liability on the commissioner for injuries suffered “through the neglect or default of the state or any of its employees by means of any defective highway . . . which it is the duty of the commissioner of transportation to keep in repair . . . .” This liability, however, can only be imposed if the defect in the highway is the sole proximate cause of the plaintiffs injuries and if those injuries are not also proximately caused by the negligence of the plaintiff or a third person. Roth v. MacDonald, 124 Conn. 461, 463, 200 A.2d 725 (1938).

The trial court reserved decision on the defendant’s motion for a directed verdict and submitted the case to the jury, together with a series of special interrogatories. The jury rendered a verdict for the plaintiff. In response to the special interrogatories, they found specifically that the defendant was negligent because the absence of a metal beam divider in the construction plan of the highway rendered it unsafe from the date of its opening in 1969 to the date of the collision. The jury also specifically found that this negligence was the sole proximate cause of the deaths because it was the only proximate cause and because it superseded the conduct of Milton.

The defendant moved, pursuant to Practice Book § 321, for judgment in accordance with his earlier motion for a directed verdict, and to set aside the verdict. The trial court denied both motions and rendered judgment on the verdict. The defendant appeals, raising several claims of error. The plaintiff cross appeals, urging us to abandon the rule which predicates the commissioner’s liability on a determination that his negligence is the sole proximate cause of the plaintiff’s injuries. We find error on the appeal, and no error on the cross appeal.

The Defendant’s Appeal

Although the defendant raises several claims on appeal, both parties agree, as do we, that the central issue is whether there was sufficient evidence to support the verdict. “We are mindful that the ‘ruling of the trial court on a motion to set aside a verdict is entitled to great weight’ because of the court’s familiarity with the facts and circumstances of the case.” Nielsen v. D’Angelo, 1 Conn. App. 239, 244, 471 A.2d 965, cert. dismissed, 193 Conn. 801, 474 A.2d 1259 (1984). We are also mindful of the fact that the jury answered the special interrogatories favorably to the plaintiff, and that, on reviewing a claim of evidentiary sufficiency, we must view the evidence most favorably to sustaining the verdict. Id., 245. We are also aware, of course, that the issue of causation in a negligence action is a question of fact for the trier, subject to reversal by the court only if the evidence is insufficient as a matter of law to support the verdict. See Coburn v. Lenox Homes, Inc., 186 Conn. 370, 384-86, 441 A.2d 620 (1982). We conclude, nonetheless, that the evidence in this case was insufficient, as a matter of law, to support the verdict and that the court erred in denying the defendant’s motions for judgment and to set aside the verdict.

I

Since the claimed negligence of the defendant pursuant to General Statutes § 13a-144 consisted of a design defect, namely, the absence of a metal beam divider, it was incumbent on the plaintiff to establish that the highway’s “ ‘plan of construction [was] one which was totally inadmissible, [i.e., that] the highway would have been in such a defective condition as to have been out of repair from the beginning.’ ” Donnelly v. Ives, 159 Conn. 163, 167, 268 A.2d 406 (1970). The plaintiff introduced sufficient evidence for the jury to find, as it did, this requirement satisfied. It was also necessary, however, that the plaintiff establish that the defendant’s negligence was the sole proximate cause of the deaths of the decedents. The evidence was insufficient, as a matter of law, to establish this sole proximate cause.

The evidence most favorable to sustaining the verdict was as follows: At the area of the highway in question the grassy median divider was 45 feet wide between the eastbound and westbound lanes. There are large concrete pilings, known as a “stack,” located on the median. The stack was originally constructed to support intersecting highways which were stacked above and crossed over the highway. There was a metal guardrail protecting the stack. There were also concrete parapets connected to a bridge overpass where the highway crosses over a local road. A metal guardrail ran from the parapet toward the stack. The end of this guardrail was buried in the grassy median. Thus, there was a gap, approximately 1250 feet long, in the grassy median, between the metal guardrail protecting the stack and the buried end of the metal guardrail protecting the parapet.

The D’Arcy vehicle was traveling westerly in the right, or slow, lane. Milton’s vehicle left the eastbound lane, began to spin and yaw as it crossed the grassy median, struck the buried end of the metal rail, entered the westbound lanes and struck the D’Arcy vehicle.

It was critical to the plaintiff’s claim of the defendant’s negligence that she prove that the absence of a metal beam divider in the 1250 foot gap, through which Milton’s vehicle traveled, was a factual, or “but for,” cause of the collision. In order to do so, she produced two experts who in essence supplied the opinions necessary to her claim.

The first was Harry Gough, a consulting engineer, who reconstructed the accident as follows: When Milton left the eastbound highway he was traveling approximately 87.7 miles per hour. When the right rear of his vehicle hit the end of the metal barrier, where it entered the ground, he was traveling at 79.9 miles per hour. When he collided with the D’Arcy vehicle, he was traveling at 55 miles per hour. The D’Arcy vehicle was traveling at 55 miles per hour prior to the collision. Roy T. D’Arcy had applied his brakes and slowed to 48 miles per hour at the moment of impact. Milton left 250 feet of skid marks from the point at which his vehicle had left the highway to the point of collision. As it crossed the median, the center of gravity of the Milton vehicle was traveling at a 21.28 degree angle, although the vehicle itself had rotated to a 33 degree angle. The right central area, just forward of the door of the Milton vehicle, collided with the D’Arcy vehicle.

The second expert witness was Robert Brenner, a mechanical, traffic and safety engineer. The critical part of Brenner’s testimony was in response to a hypothetical question which assumed the following facts, inter alia: The portion of the highway was essentially as already described. When the Milton vehicle first contacted the grassy median it was at an angle of 11 degrees and was traveling at 87.2 miles per hour, with its brake lights on. It continued until it contacted the corner of the beam rail, at which point its angle was 19.5 degrees and its speed 79.5 miles per hour. A portion of the vehicle hit the guardrail, and it continued to spin and hit the D’Arcy vehicle, which had pulled to the right. The Milton vehicle weighed 4482 pounds. Roy T. D’Arcy and Sarah D’Arcy died as a result of the collision.

In response to this hypothetical question, which also included other relevant assumed facts concerning the absence of and the costs of installing a metal beam median barrier, Brenner testified as follows: But for the absence of a median barrier, the collision would not have occurred because such a barrier would have redirected the Milton vehicle, and, alternately, but for the end of the guardrail, which caused the Milton vehicle to spin, Milton would have had a chance to regain control of his vehicle and avoid the collision. He also testified that these conditions rendered the highway unreasonably dangerous from the time it opened.

The plaintiff also introduced the police report of the accident, which indicated, inter alia, that the Milton vehicle was traveling faster than the posted speed limit of 55 miles per hour, that after leaving 250 feet of skid marks in crossing the median divider it hit the D’Arcy vehicle and stopped it, hit it again, pushing it sideways 13 feet onto the right shoulder, and that the Milton vehicle continued on and bounced off the right guardrail into the center lane, where it came to rest. The report also indicated that Milton admitted that he had last eaten at approximately 9 a.m. that day, and had drunk a half pint of vodka in the three hours prior to the accident.

The plaintiff conceded at the trial, in both her opening statement to the jury at the beginning of the case; Practice Book § 296; and in her final argument to the jury at the conclusion of the evidence, that Milton was negligent. Although we do not have a transcript of these statements, this concession is noted in the plaintiff’s brief and in the trial court’s charge to the jury.

There was also evidence, offered by the defendant, that, at the time of the accident, Milton was racing with another vehicle at speeds of 85 to 100 miles per hour, that the content of his blood was .24 per cent by weight of alcohol; cf. General Statutes § 14-227a; and that he was unfit to operate a motor vehicle. Since this evidence, accentuating the plaintiff’s concession of Milton’s negligence, would tend to militate against, rather than for, the court’s ruling in denying the defendant’s motions, we do not consider it. See Nielsen v. D’Angelo, supra.

II

Having conceded Milton’s negligence, the plaintiff offers two alternate bases on which to sustain the verdicts. The first is that the jury could rationally have found, on the basis of the purpose and effectiveness of a median barrier and the known danger of fatal crossover accidents, that Milton’s conduct, even if negligent, was only a minor, and not a substantial, factor in the deaths. The second is that the jury could rationally have found that the defendant’s negligence superseded that of Milton.

A

We first consider the plaintiff’s argument which seeks to minimize the effect of Milton’s negligence. We reject it for several reasons.

First, at oral argument in this court the plaintiff stressed that there was evidence which, if credited by the jury, supplied a reasonable basis for a finding that Milton’s conduct was but a minor, and not a substantial, factor in causing the collision, and that, therefore, under Mahoney v. Beatman, 110 Conn. 184, 197-98, 147 A.2d 762 (1929), Milton’s conduct was not a proximate cause of the collision. The evidence alluded to is essentially the testimony of Milton and of Herbert Nails, Milton’s brother-in-law, with whom Milton was purportedly racing at the time of the accident. This evidence was introduced by the defendant. The gist of their testimony, taken most favorably to the plaintiff, was that before the accident they had drunk vodka, that Milton was traveling at 45 to 55 miles per hour when he was cut off by a tractor trailer, and that he turned left to avoid the tractor trailer.

We note, however, that in her brief the plaintiff does not rely on this theory of sole proximate cause. Nowhere does she advert to this evidence; indeed it was brought to our attention only in passing in the defendant’s brief. The only reference in her brief which we glean as a possible effort to supply this basis for the jury’s finding of sole proximate cause is the general statement that “[t]he jury could have considered the purpose and effectiveness of a median barrier as well as the known danger of fatal crossover accidents in finding that the manner in which Milton crossed over the median, even if negligent, was only a minor factor and not a substantial factor in the D’Arcy deaths.” We cannot fairly read this evidence as referring to “the manner in which Milton crossed over the median.” The major thrust of the plaintiff’s argument focuses, not on whether Milton’s negligence could be found to be only a minor factor in causing the deaths, but on whether the defendant’s negligence could be found to be a cause superseding Milton’s negligence.

Second, and most important, this evidence minimizing Milton’s negligence, and its possible use as a justification for the jury’s finding of sole proximate cause, is simply and inherently contradictory to the plaintiff’s theory of liability and to the evidence in support of the defendant’s negligence. That theory and evidence rely, for their foundation, on the testimony of Gough and Brenner. Their testimony, taken together, was that Milton, having left 250 feet of skid marks in the eastbound lane, left that lane at about 87 miles per hour, crossed over the grassy median divider, spinning and yawing, at about 79 miles per hour, and traveling at 55 miles per hour collided with the D’Arcy vehicle. Moreover, there was also evidence, adduced by the plaintiff, of Milton’s drinking one-half pint of vodka on a virtually empty stomach during the three hours prior to the accident. It simply defies common sense to permit the plaintiff to claim that a finding of the defendant’s negligence can be based on the plaintiff’s experts’ reconstruction of the accident and the other evidence introduced by the plaintiff supporting that reconstruction, and, at the same time, to claim that the jury must be deemed rationally to have completely disregarded that reconstruction in assessing the conduct of a central actor’s role in the very same reconstruction. “It is an abiding principle of jurisprudence that common sense does not take flight when one enters a courtroom.” State v. Zayas, 195 Conn. 611, 620, 490 A.2d 68 (1985).

Third, it is clear to us that this proferred basis on which to sustain the verdict, which attempts to reduce the effect of Milton’s negligence, is not the theory on which the case was tried by the plaintiff and was not the basis on which the trial court denied the defendant’s motions. In response to the defendant’s first motion for a directed verdict, made at the conclusion of the plaintiff’s case, the plaintiff argued, not that Milton’s negligence was only a minor factor, but that the jury could conclude that Milton was not negligent at all. Ultimately, however, the plaintiff conceded Milton’s negligence. She introduced evidence of his great speed, his loss of control, both on the highway and as he crossed the divider and collided with the D’Arcy vehicle, and of his drinking prior to the accident. The trial court, in its memorandum of decision denying the defendant’s motions, viewed the evidence in favor of the verdict as establishing that “Milton, while intoxicated, was operating a vehicle in an easterly direction on [Interstate Highway 84] at an excessive rate of speed and lost control of his vehicle,” crossed the median divider, and struck the D’Arcy vehicle, causing the deaths.

The gist of the court’s reasoning that the jury could reasonably have found the defendant’s negligence to be the sole proximate cause rested on two bases. First, there was ample evidence that the state in 1967 adopted a policy mandating median barriers in areas of highways such as this, and that the purpose of such a barrier was to prevent high speed, crossover collisions. Second, the court reasoned as follows: “This concern for crossover accidents was certainly well founded. To be sure, if the Milton vehicle had not crossed over, this tragic event would never have occurred. Nevertheless, crossover accidents by speeders was a known condition which the commissioner had to recognize when designing and constructing the state’s super highways. The defendant called a state trooper who testified on cross examination that between 1969 and 1975, it was not unusual for persons to operate vehicles on 1-84 while intoxicated and at high rates of speed. There was ample expert testimony for the jury to conclude that if the hairier was in place, in accordance with the state’s own policy, the collision would not have occurred. Since the purpose of the barrier was to prevent crossover accidents by known speeders (including intoxicated speeders) and since the barrier would have prevented the Milton crossover or deflected his vehicle so that the accident would not have occurred, the finding that the failure to erect such a barrier to protect travelers, such as the D’Arcys, was the sole proximate cause of their deaths must stand as a legitimate question of fact which it was in the province of the jury to determine. The state cannot shield itself behind the negligence of Milton when that negligence was a known risk from which it should have protected the public by the installation of a mere barrier. The harm that occurred was the foreseeable risk created by the defendant’s failure to erect a barrier at the site where the crossover occurred and it was reasonable for the jury to find that it was the sole proximate cause of the accident.”

The plaintiff echoed this line of reasoning in this court. She urges us to sustain the verdict, with respect to this aspect of the sole proximate cause issue, on the theory that the jury could have considered the purpose and effectiveness of a median barrier, and the known danger of fatal crossover accidents.

We generally decide appeals based on the theories on which the cases were decided in the trial court. Practice Book § 3063; Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 52, 492 A.2d 223 (1985). This reasoning does not seek to establish Milton’s negligence as but a minor factor in the collision. Instead, it has as its factual predicate his speeding while intoxicated. Thus, minimization of Milton’s role in causing the collision was not the theory on which the case was tried and decided.

Moreover, this reasoning, in which the trial court and the plaintiff concur, does no more than to establish that the defendant’s negligence could certainly be found to be a proximate cause of the deaths of the D’Arcys. We fail to see, however, that it supplies a basis on which a jury, faced with the evidence in this case, could have rationally found that negligence to be the sole proximate cause of those deaths.

B

This leaves for analysis the issue of whether, on this evidence, the jury could rationally have found that the defendant’s negligence was a superseding cause so as to be the sole proximate cause of the deaths. This is the principal basis which the plaintiff offers on appeal on which to sustain the verdict, and its invocation as such a basis is the principal claim of error by the defendant on appeal. We conclude that the evidence in this case, taken most favorably to the plaintiff, cannot as a matter of law support a finding that the defendant’s negligence in failing to erect a metal barrier was a superseding cause, within the proper meaning of that term, so as to be the sole proximate cause of the deaths of the D’Arcys.

The terms “intervening cause” and “superseding cause” have been used interchangeably. See, e.g., Corey v. Phillips, 126 Conn. 246, 253-56, 10 A.2d 370 (1939). The Restatement of Torts makes clear that the doctrine is properly referred to as “superseding cause,” and that it embodies within it the concept of an “intervening force.” 2 Restatement (Second), Torts §§ 440 through 453.

The function of the doctrine of superseding cause is not to serve as an independent basis of liability, regardless of the conduct of a third party whose negligent conduct may have contributed to the plaintiff’s loss. The function of the doctrine is to define the circumstances under which responsibility may be shifted entirely from the shoulders of one person, who is determined to be negligent, to the shoulders of another person, who may also be determined to be negligent, or to some other force. “A superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.” Id., § 440.

If the third person’s negligence is determined to be a superseding cause of the plaintiff’s injury, that negligence, rather than the negligence of the party attempting to invoke the doctrine of superseding cause, is said to be the sole proximate cause of the injury. Virelli v. Benhattie, Inc., 146 Conn. 203, 209, 148 A.2d 760 (1959); see also Miranti v. Brookside Shopping Center, Inc., 159 Conn. 24, 29, 266 A.2d 370 (1969); Corey v. Phillips, supra, 254-56. The doctrine serves as a diriding line between two closely related factual situations: where two forces combine to cause the plaintiffs injuries; and where one force intervenes in such a way as to relieve a negligent defendant from liability. See generally 2 Restatement (Second), Torts §§ 440 through 453. Thus, the doctrine of superseding cause serves as a device by which one admittedly negligent party can, by identifying another’s superseding conduct, exonerate himself from liability by shifting the causation element entirely elsewhere.

The circumstances under which this shifting may take place have been well-defined in our case law. Even if a plaintiff’s injuries are in fact caused by a defendant’s negligence, a superseding cause may break that causal connection if it “so entirely supersedes the operation of the defendant’s negligence that it alone, without his negligence contributing thereto in any degree, produces the injury; or it must be the non-concurring culpable act of a human being who is legally responsible for such act.” Corey v. Phillips, supra, 255. “ Tf a defendant’s negligence was a substantial factor in producing the plaintiff’s injuries, the defendant would not be relieved from liability for those injuries even though another force concurred to produce them.’ Miranti v. Brookside Shopping Center, Inc., supra, 29. And, where the negligence of the actor creates the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor’s conduct. Restatement (Second), 2 Torts § 442B . . . . ” Merhi v. Becker, 164 Conn. 516, 522, 325 A.2d 270 (1973); Tetro v. Stratford, 189 Conn. 601, 605, 458 A.2d 5 (1983).

This analysis makes clear that the doctrine of superseding cause cannot, under the facts of this case, serve as a basis for a finding that the defendant’s negligence was the sole proximate cause of the collision which caused the deaths of the D’Arcys. This is so because, in order properly to apply that doctrine to the facts of this case, it is necessary to ask this question: Assuming that Milton was negligent, which the plaintiff conceded, and assuming also that his negligence was a “but for” cause of the deaths, which cannot be doubted and which formed a critical factual predicate of the plaintiff’s assertion of the defendant’s liability, could the jury have rationally found that the defendant’s negligence was a superseding cause which would have relieved Milton from liability? It is only if the answer to the question is “Yes,” that the defendant’s negligence could be found, under the doctrine of superseding cause, to be the sole proximate cause of the deaths. Unless that question could rationally have been answered, “Yes,” Milton could not have been relieved of liability by the doctrine of superseding cause, the conduct of both Milton and the defendant would have to be viewed as concurring to cause the deaths, and the defendant’s negligence could not, therefore, be the sole proximate cause of the deaths.

Applying the doctrine to the facts of the case, we conclude that the jury could not, as a matter of law, have reasonably concluded that the defendant’s negligence was a superseding cause so as to relieve Milton’s conduct of liability of the deaths. It cannot be doubted on this evidence that Milton’s negligence was a substantial factor in producing the deaths. It was a “but for” cause, and no rational jury could have found other than that the resulting deaths were within the foreseeable risk created by that negligence. Coburn v. Lenox Homes, Inc., 186 Conn. 370, 384, 441 A.2d 620 (1982).

“[Wjhere the negligence of the actor [i.e., Milton] creates the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force [i.e., the defendant’s negligence] does not relieve the actor [Milton] of liability, except where the harm is intentionally caused by a third person [the defendant] and is not within the scope of the risk created by the actor’s [Milton’s] conduct. ” (Emphasis added.) Merhi v. Becker, supra; 2 Restatement (Second), Torts § 442B. “[A]ny harm which is in itself foreseeable, as to which the actor has created or increased the recognizable risk, is always ‘proximate,’ no matter how it is brought about, except where there is such intentionally tortious or criminal intervention, and it is not within the scope of the risk created by the original negligent conduct.” 2 Restatement (Second), Torts § 442B, comment b.

Here, there is no evidence to support a determination that the defendant’s conduct, although negligent, was intentionally tortious or criminal. Nor could the jury have rationally found that the deaths of the D’ Arcys were not within the scope of the risk created or increased by Milton’s originally negligent conduct. Therefore, since there was no basis for a finding that the defendant’s negligence was a superseding cause with respect to Milton’s conduct, there was no basis for a finding that the defendant’s negligence was the sole proximate cause of the deaths of the D’Arcys.

The Plaintiff’s Cross Appeal

The plaintiff has filed a cross appeal in which she urges us to abandon the long standing interpretation of General Statutes § 13a-144 requiring her to establish, as the basis for recovery from the defendant, that his negligence was the sole proximate cause of the deaths. We decline to do so.

The judgment from which the defendant appealed was in favor of the plaintiff. Therefore, she is not an “appellee . . . aggrieved by the judgment . . . from which the appellant has appealed”; Practice Book § 3003; and her proper procedure was not to file a cross appeal within ten days of the appeal. Id. She seeks, instead, “to present for review alternate grounds upon which the judgment may be affirmed or ... to present for review adverse rulings or decisions of the court which should be considered on appeal in the event the appellant is awarded a new trial,” in which case her proper procedure was, as appellee, to “file a preliminary statement of issues within fourteen days from the filing of the appeal” presenting the adverse ruling of the trial court which she sought to have reviewed. Practice Book § 3012 (a). Since both parties have fully briefed and argued the issue, however, and since presentation of this claim to us is a prerequisite to the plaintiff’s seeking further review of it by way of a petition for certification by the Supreme Court; State v. Torrence, 196 Conn. 430, 433-34, 434 nn.5, 6, 493 A.2d 865 (1985); we consider her claim as if properly presented.

The plaintiff’s claim is essentially that Perrotti v. Bennett, 94 Conn. 533, 109 A.2d 890 (1920), and its progeny; see, e.g., Donnelly v. Ives, 159 Conn. 163, 268 A.2d 406 (1970); Hay v. Hill, 137 Conn. 285, 76 A.2d 924 (1950); Roth v. MacDonald, 124 Conn. 461, 200 A. 725 (1938); were wrongly decided. In our short appellate life we have consistently taken the position that it is not within our function as an intermediate appellate court to overrule Supreme Court authority. O’Connor v. O’Connor, 4 Conn. App. 19, 20, 492 A.2d 201 (1985); Plawecki v. Angelo Tomasso, Inc., 1 Conn. App. 48, 52 n.5, 467 A.2d 944, cert. denied, 192 Conn. 801, 470 A.2d 1218 (1984). This principle has even more applicability where, as here, the authority sought to be overruled involves the interpretation of a statute. Herald Publishing Co. v. Bill, 142 Conn. 53, 62-63, 111 A.2d 4 (1955). There is no basis in this record to justify the radical departure from the appellate norm which the plaintiff seeks.

There is error on the appeal, the judgment is set aside and the case is remanded with direction to render judgment for the defendant; there is no error on the cross appeal.

In this opinion the other judges concurred.

       Furthermore, in Mahoney v. Beatman, 110 Conn. 184, 198, 147 A. 762 (1929), the court specifically noted that the plaintiff, whose conduct was being gauged as being a substantial factor in causing the collision, had not been found to be negligent. In this case, the plaintiff conceded that Milton, whose conduct corresponds to the plaintiff in Mahoney v. Beatman, supra, was negligent.

       Although in this case the doctrine comes into play between two potential tortfeasers, namely, the defendant and Milton, it can, of course, also relate to a defendant’s negligence and the plaintiffs contributory negligence.

       The plaintiff relies on two out of state cases: Thorbjohnson v. Rockland-Rockport Lime Co., Inc., 309 A.2d 240 (Me. 1973); and Raybell v. State, 6 Wash. App. 795, 496 P.2d 559 (1972). Both are factually distinguishable, in that both involve a one car accident, rather than, as here, a crossover accident in which the negligence of the other driver was conceded. Furthermore, to the extent that they do involve an issue of sole proximate cause arising out of a superseding cause, similar to this case, we find their reasoning unpersuasive.


author: Hull, J.

text:
    Axel Campbell v. Charles Pommier et al.
    (2774)
    Hull, Spallone and Daly, Js.

      Argued May 14
    decision released August 20, 1985

      Richard H. Cunningham, for the appellant (plaintiff).

      Arnold J. Bai, with whom was Garie J. Mulcahy, for the appellees (defendants).
   Hull, J.

This appeal arises out of the trial court’s judgment rendered upon a jury verdict for the defendants, directed by the court. In addition, the plaintiff appeals several of the trial court’s evidentiary rulings. We find error in part.

On September 5,1974, the plaintiff, Axel Campbell, visited the office of the defendant Charles Pommier for a dental checkup. During the course of his visit, Campbell underwent four bite wing x-rays administered by the defendant Elaine Byron, Pommier’s dental hygienist. There is a dispute over precisely what thereafter occurred. Campbell’s complaint alleges, in three counts, that due to either (1) the negligence of Byron and Pommier, (2) negligence in maintaining the x-ray machine, or (3) the wilful acts of Byron, he suffered excessive doses of x-ray radiation which caused him injuries including tissue damage, eye pain, photophobia, headaches and accompanying emotional distress and inability to work.

After a trial during which a great deal of the plaintiff’s evidence was successfully objected to by the defendants, the defendants moved for a directed verdict. The motion was granted by the court which concluded (1) that there was no evidence of intent on the part of Byron, (2) that there was no evidence of any defect in the x-ray machine caused by insufficient maintenance, and (3) that, with respect to the negligence claims, there was no evidence of either a violation of the requisite standard of care or a causal relationship between such a violation and the plaintiff’s injuries. From the judgment rendered after the denial of his motion to set aside the directed verdict, the plaintiff filed the present appeal. We conclude that the court erred in directing a verdict for the defendants on the first count.

I

“A directed verdict is not favored but is justified if, on the evidence, the jury could not reasonably and legally reach any other conclusion than that embodied in the verdict as directed.” Kegel v. McNeely, 2 Conn. App. 174, 177, 476 A.2d 641 (1984); Buckley v. Lovallo, 2 Conn. App. 579, 583, 481 A.2d 1286 (1984). “On reviewing the action of the trial court in first directing and thereafter refusing to set the verdict aside, the evidence must be considered in the light most favorable to the plaintiff. Johnson v. Consolidated, Industries, Inc., 153 Conn. 522, 524, 218 A.2d 380 (1966); Yeske v. Avon Old Farms School, Inc., 1 Conn. App. 195, 201, 470 A.2d 705 (1984).” Kegel v. McNeely, supra.

In the present case, although the briefs and oral argument focused primarily on the negligence claims, the directed verdict encompassed all three counts of the complaint and we must review each of them separately.

A

The Plaintiffs Allegations of Negligence on the Part of Byron and Pommier

The defendants conceded at oral argument that there was “a lot of testimony” on the issue of what the appropriate standard of care was with respect to the taking of bite wing x-rays. It is only with respect to proof of breach of that standard and proximate cause that the parties disagree.

In Connecticut, both breach of the standard of care and proximate cause must be proved by expert testimony. Grody v. Tulin, 170 Conn. 443, 449, 365 A.2d 1076 (1976); Fitzmaurice v. Flynn, 167 Conn. 609, 616, 356 A.2d 887 (1975); Ardoline v. Keegan, 140 Conn. 552, 558, 102 A.2d 352 (1954). We conclude that expert testimony was presented on both of these issues.

Allan Reiskin, a professor of radiology of the school of dental medicine at the University of Connecticut, testified that the standard of care with regard to the taking of x-rays, as advocated by the American Dental Association, “would be to keep the exposure as low as possible, which would include factors, such as keeping the x-ray field as small as possible, which is usually done by having . . . the source as close to the object as possible.” Reiskin then went on to testify, on the basis of an arc of unexposed film on one of the x-rays caused by a “cone cut,” that the machine used in this case was “approximately fourteen inches” from Campbell’s cheek, and he testified that taking the x-ray at a distance away from the cheek would violate the standard of care.

Related to that testimony was the testimony of Arthur Heubner, director of radiation control for the state department of environmental protection, that, if placed at the cheek, the machine would irradiate an area of 5.5 inches in diameter while at fourteen inches from the cheek, the machine would irradiate an area of 8.25 inches in diameter. This evidence clearly was sufficient to enable the jury to conclude that the x-ray machine was, in fact, farther from Campbell than was proper, and that, if the machine was, in fact, fourteen inches from Campbell’s face, his eyes could have been within its field and hence his injuries could have been caused by it.

Further, the testimony was clearly sufficient to enable the jury to infer that the x-ray exposure lasted longer than the standard allowed. Reiskin testified that the exposure should be "as low as possible.” Byron testified that from three-quarters of a second to one second was the usual exposure and Campbell testified that he heard buzzing sounds ranging between four and fifteen seconds. This, coupled with Byron’s testimony and that of Heubner regarding the noise made by the machine while it was activated, brought the issue within the jury’s power to decide.

With regard to the issue of proximate cause, David H. Fogel, a privately practicing physician, testified that he treated Campbell on several occasions after his visit to Pommier. He further testified that his conclusion after treating Campbell was that Campbell’s injuries were caused by x-ray radiation. From this, he concluded that the x-rays at issue in this case caused the injuries because “[t]he only history that I obtained from the patient was the sole x-ray exposure that he had from the dental x-ray machine.” Thus, not only was there expert testimony regarding whether x-rays caused Campbell’s injuries, but that, as far as Fogel could tell, the x-rays in question caused those injuries.

We note, with regard to all of the evidence referred to above, that it was far from compelling. Nor was it uncontroverted. That does not, however, nullify the fact that it could have been believed and that, if believed, it would have supported a jury verdict in favor of the plaintiff on the first count. “A party has the same right to submit a weak case as he has to submit a strong one.” Strickland v. Vescovi, 3 Conn. App. 10, 16, 484 A.2d 460 (1984). We, therefore, conclude that the court erred in directing a verdict for the defendants with respect to the first count of the complaint.

B

The Plaintiff’s Allegations of Negligent Failure to Maintain the Machine

The plaintiff testified that he heard buzzing or humming sounds coming from the x-ray machine for periods of four to eight seconds and twelve to fifteen seconds. In one case, the sound was interrupted a number of times. While he was not allowed to testify that these sounds were actually caused by operation of the machine, both Byron and Heubner did testify that operation of the machine caused such sounds to emanate from its head. This evidence, coupled with Byron’s testimony, referred to earlier, that she set the time on the machine for three-quarters of a second or one second, clearly presented enough evidence to the jury from which it could infer that the actual exposure time did not conform to the time which was set by Byron on the timer.

Nonetheless, the plaintiff must prove more than the mere existence of a malfunction. Since this claim sounds in negligence, duty of care, breach of duty, injury and proximate cause all must be proven by the plaintiff. Coburn v. Lenox Homes, Inc., 186 Conn. 370, 372, 441 A.2d 620 (1982). Here, the plaintiff does not point us to any testimony elicited at trial regarding the proper standard of care in maintaining x-ray machines, nor does he point us to any evidence that the defendants breached that standard other than the fact that an injury occurred. Hence, as to the second count of the complaint, the directed verdict was not in error.

C

The Plaintiffs Allegations that Byron Acted Wilfully

Byron testified, at trial, to the effect that she usually placed the cone of the x-ray machine at or near the cheek of her patient and that, depending on the region of the mouth to be x-rayed, the proper exposure time was from three-quarters of a second to one second. Byron also testified that, as to the plaintiff, she did not remember any deviation from her usual procedure. The plaintiff asserts that sufficient proof of wilfulness to submit the question to the jury is found in the following inconsistencies in the evidence: (1) Byron’s testimony regarding her usual procedures and her testimony that she did not remember any deviation therefrom in this case; (2) her conflicting deposition testimony regarding the distance between the x-ray machine and Campbell’s face; (3) her further conflicting answers on this issue in her responses to the plaintiff’s interrogatories; and (4) Reiskin’s conflicting trial testimony regarding his estimation of the distance between the x-ray machine and the plaintiff. We disagree.

Even if all of the conflicting evidence is taken in the light most favorable to the plaintiff, it contains no inference of wilfulness on Byron’s part. At the very best, it suggests that she placed the x-ray machine farther from the plaintiff than was proper and that, consequently, he was exposed to radiation over a larger portion of his face than was proper. No evidence regarding wilfulness was presented. The jury could not reasonably and legally have reached any other conclusion and, thus, as to the third count of the complaint, the directed verdict was proper.

II

The plaintiff also raises eight claims of error with regard to evidentiary rulings made by the trial court. We conclude that, with the exception of three of these claims, they are without merit as the court’s rulings were within the bounds of its discretion in such matters. Hardisty v. Hardisty, 183 Conn. 253, 257, 439 A.2d 307 (1980); New York Annual Conference v. Fisher, 182 Conn. 272, 302, 438 A.2d 62 (1980). We consider the following claims since they are apt to recur upon a new trial.

A

The Court’s Refusal to Allow Diagnosis Testimony Regarding a Mental Condition From Other Than a Board-Certified Psychiatrist

The plaintiff presented two witnesses to testify regarding his mental condition. The first of these was Kermit Shulman, a licensed clinical psychologist who tested and treated the plaintiff from April, 1977, to trial. Shulman has a masters degree in psychology from Columbia University and has done advanced studies in clinical psychology at Washington School of Psychiatry and in psychoanalysis at the New York Psychiatrics Institute. He has further studied at both the Theodore Wright Clinic and Bellevue Hospital in New York. Shulman has been in private practice since 1940 examining, diagnosing and treating patients with mental problems.

“The true test for the admissibility of expert testimony is ‘whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue.’ ” Schomer v. Shilepsky, 169 Conn. 186, 191, 363 A.2d 128 (1975), quoting Taylor v. Monroe, 43 Conn. 36, 44 (1875); Puro v. Henry, 188 Conn. 301, 309, 449 A.2d 176 (1982); see also McCormick, Evidence (3d Ed. 1984) § 13. Clearly, Shulman satisfied this requirement and should have been qualified as an expert. The court concluded, however, that “[a] psychologist is not a psychiatrist .... Therefore, he may not testify as to diagnosing anybody with a mental illness, acute mental illness.”

Clearly there is a distinction between psychologists and psychiatrists, and that distinction should be made clear to a jury. The distinction, however, does not make one an expert and the other not an expert. In fact, psychologists have in the past been recognized as expert witnesses. See Stale v. Toste, 178 Conn. 626, 628, 424 A.2d 293 (1979). “ ‘[I]f any reasonable qualifications can be established, the objection goes to the weight rather than to the admissibility of the evidence.’ ” Waldron v. Raccio, 166 Conn. 608, 614, 353 A.2d 770 (1974), quoting Wray v. Fairfield Amusement Co., 126 Conn. 221, 224, 10 A.2d 600 (1940); Going v. Pagani, 172 Conn. 29, 32, 372 A.2d 516 (1976); see also Buckley v. Lovallo, 2 Conn. App. 579, 584, 481 A.2d 1286 (1984). Consequently, the court erred in refusing to allow Shulman to testify as to his diagnosis of the plaintiff.

The second expert presented by the plaintiff was David Danzer. Danzer is a graduate of the medical school of the University of Miami who did additional work in psychiatry for two months at Los Angeles County General Hospital and at the naval hospital in Pensacola, Florida, where he dealt with aviators’ psychiatric problems. He was also qualified in psychiatry by the navy and was acting chief of neuropsychiatry for Quonset Naval Hospital for six months in 1971.

Danzer testified that he saw the plaintiff in what was essentially a social setting during the period just after the plaintiff’s visit to the defendants. He, on one occasion, inspected the injuries to the plaintiff’s tongue and testified as to what he saw although that was not a formal inspection for diagnostic purposes. The court refused to allow Danzer to testify as to the plaintiff’s psychiatric condition, concluding that “[h]e can tell about the personality he took, and the tests that he took, and what he found as a result of the test and he did, but we refuse to allow him to give a psychiatric opinion.”

As with Shulman’s testimony, we conclude that the court erred in failing to qualify Danzer as an expert. Although the transcript of his testimony reveals that he had very little substantive evidence to provide to the court and that his credentials were skimpy in the psychiatric field, such matters affect the weight of his testimony, not his expertise in and of itself. Thus, the court erred in failing to allow Danzer to testify as to his diagnosis, from his meetings with the plaintiff, of the plaintiff’s psychiatric state at that time.

B

The Court’s Refusal to Allow Testimony With Regard to Machine Malfunction Prior to Testimony as to the Cause of the Plaintiff’s Injuries

The plaintiff presented two witnesses, Louis Makrinos, an x-ray service engineer, and Edward Kennelly, a radiological physicist, to the court to testify regarding the cause of a hum heard by the plaintiff and regarding the area of the plaintiffs face exposed to the x-ray beam. These witnesses, however, were presented prior to any testimony, other than that of the plaintiff himself, regarding the injuries suffered or their medical causation. On this basis, the court sustained the defendant’s objections to the testimony of the two witnesses as being premature.

It is within the discretion of the trial court to control the order of the testimony. State v. McCall, 187 Conn. 73, 84, 444 A.2d 896 (1982); McCormick, Evidence, supra, § 58. However, it is often necessary to allow evidence to be admitted conditionally on the promise of counsel to provide support for that evidence at a later time. This is “the everyday method of handling the situation.” McCormick, Evidence, supra. In the present case, it was necessary for the plaintiff to provide evidence regarding the nature of the claimed defect in the machine so that he could later obtain testimony from his medical experts regarding whether the claimed defect could have caused his injuries. On the other hand, without testimony regarding the nature and extent of the plaintiff’s injuries, testimony regarding the claimed defect made little sense. Nonetheless, “only one fact can be proven at a time or by a given witness, and the order of convenience in calling witnesses or of clear presentation may not in a particular case be the order of logical statement.” McCormick, Evidence, supra. Thus, we conclude that the trial court erred in refusing to allow the plaintiff to elicit the testimony of Makrinos and Kennelly when they were presented.

III

Finally, the plaintiff claims that the court erred in denying his motion for mistrial on the ground of the court’s expressions “including facial and physical actions,” and in denying his motion to set aside the directed verdict. Our conclusion in part I of this opinion renders further discussion of these claims unnecessary.

There is error in part, the judgment is set aside and the case is remanded with direction to render judgment as on file except that a new trial is ordered with respect to count one of the plaintiff’s complaint.

In this opinion the other judges concurred.

       This appeal, originally filed in the Supreme Court, was transferred to this court. General Statutes § 51-199 (c).

       On January 14,1980, Pommier died and the co-executors of his estate were thereafter substituted herein as parties.

       In substance, this calculation was made by computing the diameter of the exposure area from the arc on the film. From that diameter it is then possible to compute the distance between the machine and the subject.

       Although the plaintiff’s preliminary statement of issues refers to two separate claims of error at this point, his argument consolidates them. Hence, the two remaining claims of error in the court’s evidentiary rulings are consolidated here.


text:
    State of Connecticut v. Tyrone E. Fernandez
    (3379)
    Hull, Spallone and Daly, Js.
    Argued June 5
    decision released August 20, 1985

      Kenneth Rosenthal, assistant public defender, with whom, on the brief, was Donald D. Dakers, public defender, for the appellant (defendant).

      Donald O’Brien, special assistant state’s attorney, with whom, on the brief, were Arnold Markle, state’s attorney, and Mary Galvin, assistant state’s attorney, for the appellee (state).
   Hull, J.

This case involves the very narrow issue of whether the defendant’s mental state was sufficiently in dispute to entitle him to a jury charge on the lesser included offenses of assault in the third degree by recklessness or assault in the third degree by criminal negligence.

The defendant was tried before a jury on the charge of assault in the first degree in violation of General Statutes § 53a-59 (a) (l). At the close of argument, the defendant filed written requests to charge on the lesser included offenses described above. Over the defendant’s objection, the state filed a written request to charge on the lesser included offense of assault in the second degree under General Statutes § 53a-60 (a) (2). In its charge, the court instructed the jury on the lesser included offense of assault in the second degree as requested by the state but did not charge the jury on either of the subsections of assault in the third degree as requested by the defendant. On May 11, 1984, following a rereading of the court’s instructions on lesser included offenses at the jury’s request, the defendant was convicted of assault in the second degree under General Statutes § 53a-60 (a) (2). The defendant appeals from the judgment on the verdict, sentencing him to five years incarceration.

On the basis of the evidence adduced at trial, the jury could reasonably have found the following facts. On May 14, 1983, at about 9-p.m., the complainant, Thomas Izzo, and Ralph Gaudino, along with their respective dates, Sharon McCreven and Tracy Brereton, drove into New Haven to attend the Agora Ballroom, an entertainment establishment located on Whalley Avenue around the corner from the defendant’s residence.

Izzo parked his car on Norton Street and they all walked the short distance to the Agora. Sometime after midnight the two women returned to the car and found that it had been broken into. They went back into the Agora and summoned Izzo and Gaudino. All four then returned to the car with Izzo in the lead.

Izzo discovered that a window of the car had been pried open and that a pocketbook, a radio, and a leather jacket were missing. Izzo, angry, noticed the defendant laughing nearby. Izzo pushed the defendant and a fight ensued. The two of them fell back into nearby bushes punching each other. They rolled around on the ground, Izzo punched the defendant on the head repeatedly and, at one point, he stood over the defendant pinning him to the ground face down. During the struggle, the defendant was able to free his left hand long enough to stab Izzo twice in the stomach with a sharp, flat bladed instrument. None of the witnesses was within arm’s reach when the fight broke up.

Jeff Gray, a passerby who had also been at the Agora, testified that he observed Izzo on top of the defendant with his hands around the defendant’s neck, and that he lifted Izzo off of the defendant, ending the fight. The defendant then went into his apartment. The victim began to breathe differently, noticing a feeling of air entering his abdomen. He saw blood on his shirt which he thought was the defendant’s blood.

Meanwhile, Gaudino was involved in a fight with three or four males further up Norton Street. Izzo joined in this fracas to help Gaudino. Izzo testified that he took hold of two of the males and pinned both of them to the ground simultaneously. This fight was broken up by the arrival of the police. The officers ordered Izzo and his friends to leave the area.

Upon returning to the car, Izzo told McCreven that there was something wrong with him. After leaving the scene, Izzo circled back to retrieve a jack. He stopped and got out of the car and hurled the jack through the front window of the defendant’s apartment. Izzo was arrested shortly thereafter for criminal mischief. He was taken to the police station and then to Yale-New Haven Hospital. He had two small puncture wounds in his abdomen, one superficial and one penetrating his peritoneum. His recovery was rapid and unremarkable.

Izzo and his companions testified that the wounds were caused by the fight with the defendant. He felt some punches in his stomach. At no time did he observe any weapon. Izzo’s three companions also testified that they saw blood on Izzo’s shirt after the first fight. Izzo explained that he did not, at the scene, accuse the defendant of having caused his injuries because the police did not give him a chance to do so.

Instructions on a properly requested lesser included offense are critical to the fair presentation of a criminal case to a jury and implicate a defendant’s fundamental right to have the jury pass upon every factual issue fairly presented by the evidence. The Supreme Court has reversed a number of recent convictions because of the trial court’s failure to instruct the jury on lesser included offenses requested by the defendant. State v. Burge, 195 Conn. 232, 487 A.2d 532 (1985); State v. Harris, 189 Conn. 268, 455 A.2d 342 (1983); State v. Falby, 187 Conn. 6, 444 A.2d 213 (1982); State v. Gordon, 185 Conn. 402, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982); State v. Smith, 185 Conn. 63, 441 A.2d 84 (1981).

The parties agree that the controlling law is as follows. “A defendant is entitled to an instruction on a lesser offense if, and only if, the following conditions are met: (1) an appropriate instruction is requested by either the state or the defendant; (2) it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser; (3) there is some evidence, introduced by either the state or the defendant, or by a combination of their proofs, which justifies conviction of the lesser offense; and (4) the proof on the element or elements which differentiate the lesser offense from the offense charged is sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.” State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980); see also State v. Falby, supra, 28-29; State v. Smith, supra, 76-77; State v. Maselli, 182 Conn. 66, 72, 437 A.2d 836 (1980), cert. denied, 449 U.S. 1083, 101 S. Ct. 868, 66 L. Ed. 2d 807 (1981); State v. Rodriguez, 180 Conn. 382, 407-408, 429 A.2d 919 (1980).

The state properly concedes that the first three prongs of Whistnant were met. First, the defendant filed a timely request to charge and, on several appropriate occasions, he took oral exception to the court’s failure to give the charges requested. Second, the only distinguishing element between the crime charged and those requested is a more culpable mental state. Therefore, “it is not possible to commit the greater offense, in the manner described in the information or bill of particulars, without having first committed the lesser,” as required by State v. Whistnant, supra. State v. Smith, supra; State v. Rodriguez, supra. Third, the state proved that the defendant intentionally caused physical injury by means of a dangerous instrument and, in so doing, necessarily “some evidence” was introduced by the state “which justifies conviction of the lesser offense.” State v. Whistnant, supra. This third prong is satisfied where the evidence suggests “at least a possibility” that the elements of the lesser offense have been established. State v. Falby, supra, 30.

At the fourth prong of the Whistnant test, the parties go their separate ways. As to this requirement, the elements distinguishing the greater from the lesser offense will be “sufficiently in dispute”; State v. Whistnant, supra; whenever the evidence permits reasonable minds to differ upon the existence or nonexistence of the missing element. State v. Smith, supra, 77-78.

The law on this subject has recently been exhaustively summed up by Justice Healey in State v. Manley, 195 Conn. 567, 489 A.2d 1024 (1985). The defendant in that case claimed that the court erred in refusing to charge on robbery in the third degree as a lesser included offense of robbery in the first degree. The count charged against the defendant required the state to prove that he committed the crime of robbery while “armed with a deadly weapon, to wit: a pistol or revolver.” The defendant sought a lesser included offense charge on robbery in the third degree which requires no weapon. He claimed that neither the actual weapon used nor any bullet was ever recovered. The issue of the weapon’s operability was sufficiently in dispute for the purposes of the fourth prong of Whistnant to require a jury charge on the lesser included offense requested.

“The focal question raised by the defendant’s claim involves the fourth prong of the Whistnant test: whether the evidence of the element that differentiated the included offense of robbery in the third degree from robbery in the first degree, in this case the ‘armed with a deadly weapon’ element, was ‘sufficiently in dispute to permit the jury consistently to find the defendant innocent of the greater offense but guilty of the lesser.’ [State v. Vass, 191 Conn. 604, 616-17, 469 A.2d 767 (1983)]; State v. Whistnant, supra. ‘We must answer in the affirmative if viewing the evidence in the light most favorable to the defendant; People v. Shuman, 37 N.Y.2d 302, 304, 333 N.E.2d 363 (1975); reasonable minds could differ upon the existence or nonexistence of the element that distinguishes the inclusive from the included offense. State v. Morin, 180 Conn. 599, 610-11, 430 A.2d 1297 (1980) (Healey, J., dissenting). Otherwise the defendant would lose the right to have the jury pass upon every factual issue fairly presented by the evidence. Stevenson v. United States, 162 U.S. 313, 314, 16 S. Ct. 839, 40 L. Ed. 980 (1896). . . .’ State v. Smith, 185 Conn. 63, 77-78, 441 A.2d 84 (1981); State v. Gordon, 185 Conn. 402, 423, 441 A.2d 119 (1981), cert. denied, 455 U.S. 989, 102 S. Ct. 1612, 71 L. Ed. 2d 848 (1982).” State v. Manley, supra, 574-75.

In finding no error in the trial court’s refusal to give the requested charge, the court stated: “In sum then, five witnesses for the state testified regarding the incident and the gunshot. The defense neither presented its own witnesses nor did it cross-examine any of these five witnesses regarding their testimony about the gunshot. While we agree with the defendant that jurors in criminal cases should be ‘free to reject even uncontradicted testimony, if they do not find it credible’; State v. Dudla, 190 Conn. 1, 7, 458 A.2d 682 (1983); we are not persuaded by the defendant’s claim that the ‘proof’ differentiating robbery in the third degree from the charged offense of robbery in the first degree was ‘sufficiently in dispute’ under the fourth prong of Whistnant to require an instruction on the claimed lesser included offense.

“While this defendant, of course, was under no obligation to present evidence in his own behalf, we recognize as a practical matter that the defendant, for purposes of the Whistnant test, ought, in order to be entitled to a jury instruction on a lesser included offense, to endeavor to place a particular element of the crime charged ‘sufficiently in dispute’ under the fourth prong of Whistnant. This could occur either through the right of cross-examination, the major function of which is to put certain matters in dispute, or through evidence presented as part of the defendant’s case. State v. Vass, supra, 619.

“In this case, the defendant, as was his choice, decided not to pursue either of these courses. It is not at all improper that the defendant, requesting a lesser included offense instruction, bear an obligation, weak though it may be, to demonstrate that there is evidence ‘sufficiently in dispute’ to warrant giving the requested instruction. See Rouse v. United States, 402 A.2d 1218, 1221 (D.C. App. 1979); Day v. United States, 390 A.2d 957, 962 (D.C. App. 1978). The fourth prong of Whistnant specifically requires that the ‘proof’ be ‘sufficiently in dispute.’ Such proof is ‘sufficient’ when it is ‘marked by [a] quality [such as] to meet with the demands, wants or needs of a situation . . . .’ Webster, Third New International Dictionary. In the Whistnant context, therefore, the proof is ‘sufficiently in dispute’ where it is of such a factual quality that would permit the finder of fact reasonably to find the defendant guilty on the lesser included offense. This requirement serves to prevent a jury from capriciously convicting on the lesser included offense when the evidence requires either conviction on the greater offense or acquittal. See Sansone v. United States, 380 U.S. 343, 349-50, 85 S. Ct. 1004, 13 L. Ed. 2d 882 (1965); Sparf and Hansen v. United States, 156 U.S. 51, 63-64, 15 S. Ct. 273, 39 L. Ed. 343 (1895); United States v. Brown, 551 F.2d 236, 239 n.4 (8th Cir. 1977). This rationale comports with the view that ‘[f]act finding does not require mathematical certainty. [But] [j]urors are supposed to reach their conclusions on the basis of common sense, common understanding and fair beliefs, grounded on evidence consisting of direct statements by witnesses or proof of circumstances from which inferences can fairly be drawn.’ Schulz v. Pennsylva nia R. Co., 350 U.S. 523, 526, 76 S. Ct. 608, 100 L. Ed. 668 (1956). Moreover, the trial court, in making its determination whether the proof is ‘sufficiently in dispute,’ while it must carefully assess all the evidence whatever its source, is ‘not required to put the case to the jury on a basis [of a lesser included offense] that essentially indulges and even encourages speculations as to [a] bizarre reconstruction [of the evidence].’ United States v. Sinclair, 444 F.2d 888, 890 (D.C. Cir. 1971).” State v. Manley, supra, 578-80. Finally, it need not be stressed that the defendant never has any obligation to testify or present any evidence in his own defense.

We now analyze the issue in this case through the prisms of the parties’ disparate views. The state’s view is that the defendant’s trial strategy was to show that the victim was stabbed by one of the two other individuals he fought with that night and that he accused the defendant of stabbing him because the defendant had him charged with criminal mischief for throwing the jack.

The state claims that the jury could not have found that the defendant recklessly caused serious physical injury because their verdict of assault in the second degree under General Statutes § 53a-60 (a) (1) indicated that physical injury was caused by a dangerous instrument. They considered assault in the third degree under General Statutes § 53a-61 (a) (1) involving intent to cause physical injury with no dangerous instrument involved, and rejected it. Further, the evidence would not support assault in the third degree under General Statutes § 53a-61 (a) (3) concerning conduct causing physical injury with a dangerous instrument and acting with criminal negligence. The state rules out General Statutes § 53a-61 (a) (2) since the jury found, by its verdict, that a dangerous weapon was involved.

The defendant’s argument makes it clear that the state’s position begs the question. Under the instructions given, the jury had available the following alternatives: (1) assault in the first degree under General Statutes § 53a-59 (a) (1) which requires intent to cause serious physical injury and the causing of serious physical injury by means of a dangerous instrument; (2) assault in the second degree under General Statutes § 53a-60 (a) (2) which requires intent to cause physical injury and the causing of physical injury by means of a dangerous instrument; and (3) assault in the third degree under General Statutes § 53a-61 (a) (1) which requires intent to cause physical injury and the causing of physical injury.

Because of the trial court’s refusal to charge on the subsections requested by the defendant, the jury was not permitted to consider either of the following: (4) assault in the third degree under General Statutes § 53a-61 (a) (2) which requires the reckless causing of physical injury; or (5) assault in the third degree under General Statutes § 53a-61 (a) (3) which requires the causing of physical injury with criminal negligence by means of a dangerous instrument.

Thus, the jury was provided legal options only with respect to the seriousness of the injury and the use of a dangerous instrument. The court’s instructions and the state’s position foreclosed the jury from considering whether or not the defendant recklessly or with criminal negligence assaulted the victim with a dangerous instrument.

There was much confusion in the evidence concerning the cause of Izzo’s injuries. Izzo himself described the general rolling about and punching. Other witnesses for both the state and the defense testified that there was considerable physical contact, tussling, violence, and wrestling and rolling around on the ground. There was also testimony of Izzo’s intoxication and apparent belligerency and the defendant’s distraught condition.

The case boils down to the subtle and special role of mental elements in criminal law. State of mind is essentially proven by circumstantial evidence based on inferences drawn from the circumstances of the crime. See, e.g., State v. D’Antuono, 186 Conn. 414, 423, 441 A.2d 846 (1982); State v. Giguere, 184 Conn. 400, 403-404, 439 A.2d 1040 (1981); State v. Rodriguez, 180 Conn. 382, 404, 429 A.2d 919 (1980); State v. Holley, 174 Conn. 22, 26, 381 A.2d 539 (1977). Except in rare cases, it is a question of fact within the discretion of the jury. State v. Rodriguez, supra; State v. Holley, supra. It is in the field of intent particularly in which the court’s instructions should take special account of the jury’s fact-finding responsibilities. Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979); Morrissette v. United States, 342 U.S. 246, 274, 72 S. Ct. 240, 96 L. Ed. 288 (1952); State v. Kurvin, 186 Conn. 555, 558, 573-74, 442 A.2d 1327 (1982). This court has very recently noted the jury’s “classic function of drawing inferences of intent.” State v. Dumlao, 3 Conn. App. 607, 619, 491 A.2d 404 (1985), citing State v. Giorgio, 2 Conn. App. 204, 211, 477 A.2d 134 (1984).

Four recent cases in which the Supreme Court upheld a defendant’s right to a lesser included offense instruction under the evidence prong of Whistnant involved state of mind as the differentiating element. See State v. Burge, supra; State v. Falby, supra; State v. Gordon, supra; State v. Smith, supra.

Most significantly, even identical evidence may support a jury finding of intent or recklessness (and thus, by compelling analogy, a finding of criminal negligence). See State v. Marino, 190 Conn. 639, 652, 462 A.2d 1021 (1983); State v. Falby, supra; State v. Smith, supra; State v. Giguere, supra.

The state’s position in this case presents a classic case of wanting to have its inference and eat it too. The whole thrust of the state’s case is based on inferences from circumstantial evidence. No one saw a dangerous instrument. The state’s case rested first on inference from a jumble of facts that the defendant caused the victim’s injuries and, secondly, that he did so intentionally. The court's charge limited the jury to differentiation between serious physical injury and physical injury, and to the use or absence of a dangerous instrument. What’s sauce for the goose is sauce for the gander. The jury, which was allowed to draw inferences of intent from the tangled web of evidence should likewise have been permitted to draw inferences as to recklessness or negligence.

The court “must appraise all the testimony and evidence to determine whether it is capable of more than one reasonable inference. United States v. Comer, 421 F.2d 1149, 1154 (D.C. Cir. 1970).

“WTiether the fourth prong of the test for an instruction on a lesser included offense has been satisfied is a mixed question of law and fact that the trial court is uniquely positioned to pass upon, and its determination, unless clearly erroneous, will not be reversed.” State v. Manley, supra, 581 n.12.

In this case, the failure to give the charge requested on lesser included offenses was clearly erroneous.

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

In this opinion the other judges concurred.

       General Statutes § 53a-61 (a) provides, in pertinent part: “A person is guilty of assault in the third degree when: ... (2) he recklessly causes serious physical injury to another person; or (3) with criminal negligence, he causes physical injury to another person by means of ... a dangerous instrument.”
      General Statutes § 53a-3 (13) defines “recklessly” as follows: “A person acts ‘recklessly’ with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregarding it constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation . . . .”
      General Statutes § 53a-3 (14) defines “criminal negligence” as follows: “A person acts with ‘criminal negligence’ with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation . . . .”
      General Statutes § 53a-3 (7) defines “dangerous instrument,” in pertinent part, as follows: “ ‘Dangerous instrument’ means any instrument, article or substance which, under the circumstances in which it is used or attempted or threatened to be used, is capable of causing death or serious physical injury

       General Statutes § 53a-59 (a) provides, in pertinent part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of ... a dangerous instrument . . . .”

       General Statutes § 53a-60 (a) provides, in pertinent part: “A person is guilty of assault in the second degree when: ... (2) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of ... a dangerous instrument . . . .”

       Attributed to Varro. Translated from the Latin in John Ray’s English Proverbs, 1670.