text:
    RITA PATERNOSTRO v. ARBORIO CORPORATION ET AL.
    (AC 18851)
    O’Connell, C. J., and Hennessy and Vertefeuille, Js.
    Argued October 20
    officially released December 28, 1999

      Ross T. Lessack, for the appellant (plaintiff).

      Nancy S. Rosenbaum, for the appellees (defendants).
   Opinion

O’CONNELL, C. J.

The plaintiff, Rita Patemostro, the dependent widow of Francesco Patemostro, appeals from the decision of the workers’ compensation review board (board) affirming the workers’ compensation commissioner’s (commissioner) denial of her claim for survivor’s benefits under General Statutes § 31-306. The plaintiff contends that the board improperly upheld (1) the commissioner’s finding that the decedent was intoxicated at the time of his death, (2) the commissioner’s finding that the decedent engaged in wilful and serious misconduct and (3) the commissioner’s determination as to the proximate cause of the decedent’s death. We affirm the decision of the board.

The following facts and procedural history are necessary to the resolution of this appeal. On October 14, 1994, at approximately 10:55 p.m., the decedent, Francesco Patemostro, was stmck by an automobile as he walked across Interstate 84 westbound near exit 22 in Waterbury. Immediately following the accident, he was transported to Saint Mary’s Hospital in Waterbury, where he was pronounced dead at 11:30 p.m.

At the time of the accident, the decedent was employed by the defendant Arborio Corporation as a member of a road crew assigned to erect warning signs along a section of Interstate 84. As a member of the sign crew and as the union steward, he was trained and familiar with the safety procedures for erecting the warning signs. On the evening of the accident, he was notified of an incorrect sign pattern and was instructed to correct the problem. He drove to the area, parked the company tmck on the left shoulder of the highway and, in contravention of company policy, walked across three highway lanes to fix a sign located on the right shoulder of the highway. The accident occurred after he fixed the sign and was returning to his tmck.

A plastic beverage cup emitting the odor of alcohol was found in the decedent’s lunch box in the passenger compartment of the company tmck. Also found in the passenger compartment were six full cans of beer and one half-empty bottle of liquor. A blood sample drawn from the decedent by the office of the chief medical examiner at 9 a.m. on October 15, 1994, revealed a blood alcohol level of 0.18 percent.

The plaintiff submitted a claim for benefits under § 31-306, and on February 2, 1996, a hearing was held before the commissioner. The defendant employer and the defendant workers’ compensation insurance carrier, Liberty Mutual Insurance Company, argued that the plaintiff was not entitled to benefits because the decedent’s death was “due to the use of alcohol” under General Statutes § 31-275 (1) (C), and because his death was caused by wilful and serious misconduct or by his intoxication pursuant to General Statutes § 31-284 (a).

James O’Brien, a physician and pharmacologist, testified that a person with a blood alcohol level of 0.18 percent would be presumed intoxicated and would have impaired judgment, vision and reflexes, and would have difficulty standing and a decreased ability to perceive danger. He further stated that it was possible that the decedent had reached the 0.18 percent blood alcohol level between 9 p.m. and 10:55 p.m. on the date of his death.

Timothy J. Arborio, a vice president of the defendant employer, presented evidence that the employer’s policy prohibits employees from walking across an interstate highway. He testified that consumption of alcohol by an employee while on the job was prohibited. Ralph Keyes, the general superintendent of the employer, testified that the accident occurred at a heavily traveled and poorly lighted shaip curve in the highway. A state police accident reconstructionist testified that the decedent came into contact with the vehicle at the right front passenger door as he walked from the highway’s right shoulder to its left shoulder, and that the contact occurred in the extreme left travel lane.

The commissioner found that the decedent had consumed alcohol to the point of intoxication during working hours, in violation of the employer’s policy, and that this misconduct was wilful and serious. He further found that the decedent engaged in wilful and serious misconduct when he walked across the highway, in violation of the employer’s policy, at a time when traffic was heavy and at a location where visibility was diminished. The commissioner concluded that “[the decedent’s] intoxication when considered together with his attempt to cross the interstate highway constituted wilful and serious misconduct on the part of [the decedent] and was the cause of the injuries which ultimately resulted in his death.” The commissioner determined that, because the decedent’s death was the result of wilful and serious misconduct, the plaintiff was not entitled to compensation pursuant to § 31-284 (a) and that it was not necessary, therefore, to decide whether the decedent’s intoxication caused his death for purposes of § 31-275 (1) (C). The plaintiff appealed to the board, which affirmed the commissioner’s decision.

I

The plaintiff first claims that the board improperly affirmed the commissioner’s finding that the decedent was intoxicated, asserting that this conclusion was based on an inference unreasonably drawn from the subordinate facts and an incorrect application of the law. To analyze the plaintiffs claims, we must first determine the appropriate standard of review.

The standard applicable to the board when reviewing a commissioner’s decision is well established. The board sits as an appellate tribunal reviewing the decision of the commissioner. Bowman v. Jack’s Auto Sales, 54 Conn. App. 289, 293, 734 A.2d 1036 (1999). “[T]he review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [T]he power and duty of determining the facts rests on the commissioner . . . .” (Internal quotation marks omitted.) Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 192, 737 A.2d 993, cert. denied, 251 Conn. 929, 742 A.2d 364 (1999). The commissioner may base his or her findings on circumstantial evidence; see Gaul v. Noiva, 155 Conn. 218, 224, 230 A.2d 591 (1967); and may rely on expert testimony. See State v. Blades, 225 Conn. 609, 629, 626 A.2d 273 (1993). Where the subordinate facts allow for diverse inferences, the commissioner’s selection of the inference to be drawn must stand unless it is based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Discuillo v. Stone & Webster, 43 Conn. App. 224, 226, 682 A.2d 145 (1996), aff'd, 242 Conn. 570, 698 A.2d 873 (1997).

This court’s review of decisions of the board is similarly limited. Barron v. City Printing Co., 55 Conn. App. 85, 89, 737 A.2d 978 (1999). “The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Besade v. Interstate Security Services, 212 Conn. 441, 449, 562 A.2d 1086 (1989). “[W]e must interpret [the commissioner’s finding] with the goal of sustaining that conclusion in light of all of the other supporting evidence.” (Internal quotation marks omitted.) Weiss v. Chesebrough-Ponds USA Co., 51 Conn. App. 106, 110, 719 A.2d 1225 (1998). “Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to supportit.” (Internal quotation marks omitted.) O’Reilly v. General Dynamics Corp., 52 Conn. App. 813, 818, 728 A.2d 527 (1999).

The evidence here supports the commissioner’s finding that the decedent was intoxicated and, therefore, that finding must stand. The commissioner was presented with evidence that the decedent’s blood alcohol level was 0.18 percent and that a person with that blood alcohol level would be impaired to the point of intoxication. The commissioner also heard evidence that aplastic beverage cup emitting the odor of alcohol, six full cans of beer and one half-empty bottle of liquor were found in the company truck, which the decedent was driving immediately prior to the accident.

In light of this evidence, the commissioner found that the decedent was intoxicated. This conclusion was properly based on inferences reasonably drawn from the subordinate facts and was a correct application of the law. Accordingly, the board’s decision as to this issue is affirmed.

II

The plaintiffs second claim is that the board improperly upheld the commissioner’s finding that the decedent engaged in wilful and serious misconduct. The plaintiff claims that the commissioner could not properly conclude that the decedent’s violations of the defendant’s rules against consuming alcohol while on duty and crossing the highway constituted wilful and serious misconduct.

“[S]erious misconduct is wrong or improper conduct of a grave and aggravated character . . . [where] the injured employee appreciated at the time of injury that he was exposing himself to serious injury.” Mancini v. Scovill Mfg. Co., 98 Conn. 591, 597, 119 A. 897 (1923). Wilful misconduct may be either intentional or reckless misconduct. Caraher v. Sears, Roebuck & Co., 124 Conn. 409, 415, 200 A. 324 (1938). Reckless misconduct is “highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.” (Internal quotation marks omitted.) Dubay v. Irish, 207 Conn. 518, 533, 542 A.2d 711 (1998).

The plaintiff claims that the commissioner was not presented with evidence that the decedent knew of the employer’s rules prohibiting the consumption of alcohol while on duty and walking across a highway, and that a violation of these rules was, at best, negligent behavior. The commissioner, however, found that (1) the decedent was a union steward whose responsibility it was to communicate with management regarding safety and personnel issues, (2) the decedent’s blood alcohol level was 0.18 percent, and that this level was attained by consuming alcoholic beverages while on duty, and (3) the area where the decedent attempted to cross the highway was at a dimly lit and heavily traveled sharp curve in the interstate highway. Under the circumstances, the rales violations could properly be considered to be grave, aggravated and highly unreasonable conduct representing an extreme departure from ordinary care, where a high degree of danger existed.

The evidence, therefore, supports the commissioner’s finding that the decedent (1) was intoxicated, (2) had knowingly violated the employer’s policy against consuming alcohol while on duty, (3) had knowingly violated the employer’s policy against crossing the highway and (4) that the combination of these factors constituted wilful and serious misconduct that caused the injuries leading to the decedent’s death. We are persuaded that this conclusion was properly based on inferences reasonably drawn from the subordinate facts and was a correct application of the law, and that the board, therefore, properly affirmed the commissioner’s conclusion as to this issue.

Ill

The plaintiff claims finally that the board improperly affirmed the commissioner’s application of the substantial causative factor test. She asserts that for the defendants to prevail, it must be established that the decedent’s death was caused solely by either his intoxication or by his wilful and serious misconduct, and not by a combination thereof or by any other cause.

The plaintiff requests that this court apply the “sole proximate cause” standard to the affirmative defense of wilful and serious misconduct under § 31-284 (a). While this causation standard is used in defective highway actions under General Statutes § 13a-149; Carbone v. New Britain, 33 Conn. App. 754, 758, 638 A.2d 628, cert. denied, 230 Conn. 904, 644 A.2d 917 (1994), citing White v. Burns, 213 Conn. 307, 316, 567 A.2d 1195 (1990); it has never been applied in workers’ compensation cases in Connecticut and we will not apply it here. Instead, the appropriate causation analysis under § 31-284 (a) is the substantial causative factor test. Besade v. Interstate Security Services, supra, 212 Conn. 449 (“traditional proximate cause concepts furnish the appropriate analysis for determining causation in workers’ compensation cases”); McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 118, 527 A.2d 664 (1987). “[T]he test for determining whether particular conduct is a proximate cause of an injury [is] whether it was a substantial factor in producing the result.” (Internal quotation marks omitted.) Hines v. Davis, 53 Conn. App. 836, 839, 731 A.2d 325 (1999).

The commissioner found that the decedent’s intoxicated state, combined with the proscribed acts of consuming alcohol while on duty and crossing the highway, constituted wilful and serious misconduct that caused the injuries that resulted in the decedent’s death. The board upheld the commissioner’s determination that this conduct caused his death because the decedent’s serious and wilful misconduct was, at least, a substantial cause of the accident.

Our review of the record persuades us that the commissioner properly concluded that the decedent’s actions, in toto, constituted wilful and serious misconduct that proximately caused his death and that the board’s decision was also proper. Accordingly, we deny the plaintiffs claim as to this issue.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       General Statutes § 31-284 (a) provides in relevant part: “[Cjompensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. . . .”

       Even though we are satisfied that the commissioner properly concluded that the decedent was intoxicated, we must nonetheless review this claim because the commissioner did not conclude that intoxication, in isolation, proximately caused the decedent’s death. Stated in the alternative, had the commissioner concluded that the decedent’s “death [was] due to the use of alcohol” under § 31-275 (1) (C), or that his death was “caused ... by his intoxication” under § 31-284 (a), it would not be necessary for us to discuss this claim.


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. KENNETH JAMISON
    (AC 17453)
    Lavery, Spear and Daly, Js.
    Argued September 21
    officially released December 28, 1999

      Vicki H. Hutchinson, special public defender, for the appellant (defendant).

      Margaret Gaffney Radionovas, assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Richard L. Palombo, Jr., supervisory assistant state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Kenneth Jamison, appeals from the judgment of the trial court, rendered after a jury trial, of assault in the second degree in violation of General Statutes § 53a-60 (a) (2). He claims that the evidence was insufficient to convict him because (1) the jury returned inconsistent not guilty verdicts on two other gun related counts, (2) the victim was not believable and (3) the jury found him guilty solely because he previously had been convicted of manslaughter. We conclude that the claims are not reviewable and, therefore, affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On September 21,1995, Hashim Preston was in his sister’s apartment in Bridgeport. Shortly after midnight, Maria Caban knocked on the door of the apartment and was let in by Preston. While the door was open, the defendant forced his way into the apartment and engaged Preston in a hostile conversation about certain money matters. At some point, the defendant pulled out a long black stick that had tape and a cable wire around it, and struck Preston in the face with it five to seven times.

On October 12,1995, several police officers executed a search and seizure warrant at 400 Wood Avenue. The defendant was present, but told the officers that he was a visitor to the premises. The officers seized a gun that belonged to the defendant, ammunition and an identification card that contained the defendant’s picture and the name “Johnny Vincent.”

On the basis of Preston’s identification, the defendant was arrested and a trial followed. At the close of the state’s case, the defendant moved for a judgment of acquittal on the grounds that a state’s witness gave conflicting versions of the incident, the police investigation was inadequate, and the search and seizure warrant was defective. He did not claim that the evidence was insufficient to support a guilty verdict. The trial court denied the motion, and the jury returned a verdict of not guilty on the counts of the information that alleged criminal possession of a firearm in violation of General Statutes § 53a-217 (a) and carrying a pistol without a permit in violation of General Statutes § 29-35 (a). The jury found the defendant guilty of assault in the second degree, and this appeal followed.

I

The defendant challenges the jury verdict claiming that it was based on insufficient evidence. He constructs the following argument: Preston gave the only evidence of the assault, testifying that the defendant struck him with a gun, and the evidence showed that the same gun was found three weeks later in an apartment occupied by the defendant. By finding the defendant not guilty of criminal possession of a firearm and carrying a pistol without a permit, the jury demonstrated that it did not believe Preston’s testimony that he was struck with a gun. Although Preston testified that the defendant also struck him with the stick that was wrapped with tape and cable wire, it is “inconceivable” that the jury believed Preston’s testimony. The defendant further asserts that “[t]he only conclusion which can be drawn from the verdicts is that the jury convicted [the defendant] based on his prior conviction of manslaughter. . . . Prior conviction of manslaughter is not sufficient to convict an individual of assault in the second degree.”

The defendant concedes that the insufficiency claim now made on appeal was not made in the trial court. He asserts, however, that a claim that the evidence was insufficient to convict is of constitutional dimension and, therefore, reviewable pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). This contention is correct; see State v. Roy, 233 Conn. 211, 212-13, 658 A.2d 566 (1995); but it is also subject to another principle. Although a defendant may label a claim as constitutional in nature, such labeling does not make it so. State v. Schiappa, 248 Conn. 132, 164, 728 A.2d 466, cert. denied, 528 U.S. 862, 120 S. Ct. 152, 145 L. Ed. 2d 129 (1999); State v. Taylor, 239 Conn. 481, 502-503, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997). Here, neither the individual components of the defendant’s insufficiency claim nor their sum rises to the level of constitutional magnitude.

The cornerstone of the defendant’s claim is his assertion that the two not guilty verdicts conclusively demonstrate that the jury did not believe Preston. This is nothing more than a claim that the verdicts are inconsistent. “[A] claim that factually inconsistent verdicts must be set aside is not one of constitutional dimension.” State v. Milner, 46 Conn. App. 118, 125, 699 A.2d 1022 (1997).

II

The second component of the defendant’s insufficiency claim is that it is “inconceivable” that the jury believed Preston’s testimony that he was struck with the taped wire wrapped stick. The defendant offers no authority in support of the claim that his disagreement with the jury’s assessment of Preston’s credibility rises to the level of constitutional magnitude. Our Supreme Court has “recognized . . . that claimed instructional errors regarding general principles of credibility of witnesses are not constitutional in nature. . . . Indeed, it would trivialize the constitution to transmute a nonconstitutional claim into a constitutional claim simply because of the label placed on it by a party or because of a strained connection between it and a fundamental constitutional right.” (Internal quotation marks omitted.) State v. Schiappa, supra, 248 Conn. 165. If claimed instructional errors regarding witness credibility are not of constitutional dimension, we see no reason to accord constitutional status to the defendant’s claim that the jury could not have believed parts of Preston’s testimony.

Ill

The defendant’s final claim is that the jury must have found him guilty solely because of his prior manslaughter conviction. This assertion constitutes the entire briefing of the claim. We are not required to review a claim that amounts to nothing more than a completely speculative assertion unsupported by analysis or authority. See Cummings v. Twin Tool Mfg. Co., 40 Conn. App. 36, 45, 668 A.2d 1346 (1996).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-60 (a) provides in relevant 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 ... by means of a deadly weapon . . . .”

       The defendant moved to dismiss the charges, but the trial court treated 1he motion as one for a judgment of acquittal. There is no indication in the record that the defendant put on evidence.

       General Statutes § 53a-217 (a) provides in relevant part: “A person is guilty of criminal possession of a firearm . . . when he possesses a firearm . . . and (1) has been convicted of a [crime enumerated herein] . . . .”

       General Statutes § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28. . . .”

       The count of the information that charged criminal possession of a firearm originally alleged that the defendant had been convicted previously of manslaughter. At the beginning of the trial, the clerk read that count to the jury. Thereafter, that count was amended to read that the defendant had been convicted previously of a crime and the trial court instructed the jury with respect to that count that the defendant and the state had stipulated that the defendant had been convicted of one of the crimes enumerated in § 53a-217 (a).

        State v. Golding, supra, 213 Conn. 239-40, held “that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.)

       The defendant makes no claim that the stick, augmented with tape and cable wire, was not a deadly weapon as that term is defined in General Statutes § 53a-3 (6). Even if this claim were properly before us, the axiomatic proposition that the fact finder is the sole judge of witness credibility would compel its rejection.


author: SCHALLER, J.

text:
    WALTER SCHEIRER v. FRENISH, INC., ET AL.
    (AC 18306)
    Lavery, Schaller and Hennessy, Js.

      Argued September 29
    officially released December 28, 1999

      Alexander Scheirer, for the appellant (plaintiff).

      Francis P. Alvarez, with whom were Christina L. Calise and, on the brief, Diane K. Rembleske, for the appellee (defendant Bic Corporation).
   Opinion

SCHALLER, J.

The plaintiff, Walter Scheirer, appeals from the judgment of the trial court rendered following the granting of the motion for summary judgment filed by the defendant Bic Corporation. The defendant claimed in its motion that the plaintiffs action was barred by the exclusive remedy provisions of the Workers’ Compensation Act (act). On appeal, the plaintiff claims that the trial court improperly granted the defendant’s motion for summary judgment because a genuine issue of material fact exists as to whether the plaintiffs injury resulted from his employer’s intentional conduct thereby satisfying the narrow exception to the exclusivity provision of the act and allowing the plaintiff to pursue his common-law remedy in a trial. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. On December 17, 1991, the plaintiff was at work when he suffered a cerebral aneurysm. At the time, Gail McHugh was a registered muse also employed by the defendant. McHugh was called on to examine and evaluate the plaintiff after a foreman observed that he was acting strangely. After evaluating and questioning the plaintiff, McHugh called an ambulance to take the plaintiff to a hospital.

The plaintiff initially filed a complaint against the defendant alleging, inter alia, that the defendant directed or authorized McHugh to withhold medical treatment from him. The plaintiff further alleged that his injuries, which included a severe fracture of the cranium and permanent brain damage, were caused by the defendant’s intentional conduct.

The defendant moved for summary judgment claiming that, in the absence of proof by the plaintiff that the defendant intended to injure the plaintiff by withholding medical treatment, the exclusive remedy provisions of the act barred the plaintiff’s claim. By affidavits and deposition transcripts, the defendant submitted proof that it did not withhold medical treatment from the plaintiff. The plaintiff, however, claimed that there was a genuine issue of material fact as to whether the defendant directed or authorized McHugh to withhold treatment from the plaintiff. In opposition to the motion, the plaintiff relied on the deposition testimony of McHugh in which she testified that it was the policy of the defendant that she should act in a manner to minimize employee absenteeism, especially absenteeism due to a work-related injury. The plaintiff argued that the defendant’s conduct would permit a factual finding that the defendant instructed McHugh to delay seeking medical services for the plaintiff.

The trial court granted the defendant’s motion for summary judgment on the basis of the exclusivity provisions of the act. The court determined that the plaintiffs argument was not plausible and that no genuine issue of material fact existed. The court stated that “it would seem logical that [reducing absenteeism due to work-related injury] would be the policy of the medical staff of any employer and cannot be equated with a policy of intentionally withholding medical treatment.” The plaintiff appealed.

We begin by addressing the appropriate standard of review of a trial court decision granting a motion for summary judgment. “Pursuant to Practice Book § 384 [now § 17-49], summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all the material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Citations omitted; internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105-106, 639 A.2d 507 (1994).

“Although the court must view the inferences to be drawn from the facts in the light most favorable to the party opposing the motion ... a party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment. ... A party opposing a motion for summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.” (Citation omitted; internal quotation marks omitted.) Altfeter v. Naugatuck, 53 Conn. App. 791, 801, 732 A.2d 207 (1999).

The present case raises the question of whether the complaint, deposition and affidavits submitted in opposition to the defendant’s motion for summary judgment sufficiently raise a genuine issue of material fact as to whether the defendant committed an intentional tort or engaged in wilful or serious misconduct sufficient to allow an employee to bring a common-law tort action against his employer and thereby avoid the exclusivity provision of the act. Our Supreme Court has “consistently . . . interpreted the exclusivity provision of the act, General Statutes § 31-284 (a), as a total bar to common law actions brought by employees against employers for job related injuries with one narrow exception that exists when the employer has committed an intentional tort or where the employer has engaged in wilful or serious misconduct. Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979).” Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 106.

Jett “is the seminal case in which [our Supreme Court] articulated this narrow exception and held that the exclusivity of the act would not be eroded when the employee alleges an intentional tort by his supervisor. In Jell, [the court] recognized the distinction between the actor who is ‘merely a foreman or supervisor,’ to which attribution of corporate responsibility for his or her conduct is inappropriate, and the actor who ‘is of such a rank in the corporation that he [or she] may be deemed the alter ego of the corporation under the standards governing disregard of the corporate entity,’ to which attribution of corporate responsibility is appropriate.” Id.

In the present case, the plaintiff claims that the defendant’s intentional conduct caused his injuries. The plaintiff cites the standard that a party is entitled to consideration not only of the facts, but also of the inferences reasonably and logically drawn therefrom. See United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378-81, 260 A.2d 596 (1969). First, the plaintiff argues that a “high concentration of company pressure to avoid the loss .of employee work time” existed at the defendant’s place of business. The plaintiff bases this argument on the defendant’s work policy that was designed to reduce employee absenteeism. Next, the plaintiff offers the argument that the fact that McHugh did not immediately call for an ambulance leads ineluctably to the conclusion that appropriate medical treatment was intentionally withheld because of the work policy. The plaintiffs line of reasoning is unpersuasive. Moreover, the plaintiff mischaracterizes McHugh’s testimony and ignores her undisputed testimony explaining her independent actions in relation to the treatment of the plaintiff. In addition, the plaintiff has not disputed evidence presented by the defendant that McHugh actually attended to the plaintiffs medical needs. Instead, the plaintiff essentially asks this court to speculate that McHugh’s delay in summoning an ambulance in the context of the defendant’s work policy amounts to an intentional withholding of medical treatment by the defendant. Although a court may consider inferences reasonably and logically drawn from the facts, we disagree with the plaintiff that the trial court could reasonably have reached that conclusion on the basis of the inferences drawn from the facts of this case. The trial court properly granted the defendant’s motion for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       The other defendants, Frenish, Inc., Gail McHugh, Timothy Craven and David Eisenhandler, are not parties to this appeal. We refer in this opinion to Bic Corporation as the defendant.

       At the time of the plaintiffs injury> General Statutes (Rev. to 1991) § 31-284 (a) provided: “An employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment or on account of death resulting from personal injury so sustained, but an employer shall secure compensation for his employees as follows, except that compensation shall not be paid when the personal injury has been caused by the wilful and serious misconduct of the injured employee or by his intoxication. All rights and claims between employer and employees, or any representatives or dependents of such employees, arising out of personal injury or death sustained in the course of employment as aforesaid are abolished other than rights and claims given by this chapter, provided nothing herein shall prohibit any employee from securing, by agreement with his employer, additional benefits from his employer for such injury or from enforcing such agreement for additional benefits.”
      All references herein to § 31-284 are to the 1991 revision of the statute. The preceding language is presently codified, with minor technical changes, at General Statutes § 31-284 (a).

       In addition to arguing that the trial court was correct in finding that no genuine issues of material fact exist, the defendant maintains, as an alternate ground for affirmance, that the judgment should be affirmed because the plaintiffs claim is preempted by § 301 of the Labor Management Relations Act. 29 U.S.C. § 185. We need not address this alternate ground since the trial court properly granted summary judgment for the defendant.

       At her deposition, McHugh testified that the actions she took concerning the plaintiff on December 17, 1991, were based on her own professional judgment. She further testified that on that day, she received no directions or instructions from the defendant concerning the plaintiff’s condition and that the defendant does not have a written policy relating to calling an ambulance.

       The plaintiffs complaint, was in three counts: one count sounded in contract, one in negligence and one in intentional tort. On August 29, 1994, the trial court granted the defendant’s motion to strike the plaintiffs cont ract, and negligence claims.

       Specifically, the plaintiff claims that as a result of the defendant’s intentional conduct, McHugh did not call an ambulance right away and that she left the plaintiff unattended. The plaintiff alleges that, while unsupervised, he collapsed and struck his head on the floor causing additional injuries.

       In her deposition and affidavit, McHugh testified that she first observed the plaintiff in a supervisor’s office and tried to determine if he was on medication. McHugh stated further that she later examined the plaintiff in the health services office where she checked the plaintiffs pupils and took his blood pressure and pulse. McHugh’s examination of the plaintiff revealed a blood pressure of 160/80, a pulse of 104 and pupils that were round, equal and reacting to light. In addition, McHugh testified that she asked the plaintiff a series of questions. After the plaintiff answered several questions, McHugh then summoned an ambulance to transport the plaintiff to the hospital.


text:
    TERRY D. GILLETTE v. TOWN OF MONROE ET AL.
    (AC 18673)
    O’Connell, C. J., and Schaller and Daly, Js.

      Argued September 24
    officially released December 28, 1999

      Christopher B. Carveth, for the appellant (plaintiff).

      Mark J. Sommaruga, with whom, on the brief, was Catherine M. Thompson, for the appellees (defendants).
   Opinion

SCHALLER, J.

The plaintiff, Terry D. Gillette, appeals from the decision of the workers’ compensation review board (board) affirming the commissioner’s denial of his claim for hypertension and heart disease benefits pursuant to General Statutes (Rev. to 1993) § 7-433C. On appeal, the plaintiff contends that under § 7-433c, the commissioner improperly considered information not contained in the preemployment physical examination report furnished to the defendant town of Monroe (town) when he denied the plaintiffs claim, and that the board’s affirmance was therefore improper. We reverse the decision of the board and remand the case for further proceedings.

The following facts and procedural history are relevant to our disposition of this appeal. Francis P. A. Williams served as the plaintiffs personal physician from 1947 through the mid-1960s. In 1947, Williams referred the plaintiff to Harris P. Shumacker, a physician who performed excision surgery on the plaintiff for a coarctation of the descending aorta and aneurysm.

In 1965, the plaintiff applied to the town for the position of uniformed police officer. As a candidate for employment with the police department, the plaintiff was required to pass a July, 1965 preemployment physical examination to be performed by the police surgeon, in this case, Williams. Following the completion of the examination, Williams forwarded a letter dated August 2, 1965, to the town’s chief of police. The substance of the letter was as follows: “[The plaintiff] was given a preemployment physical examination for the position of probationary patrolman on July 22nd. He was found to be in good physical condition and to meet the requirements for the position.” Thereafter, the plaintiff was hired by the town on the recommendation of its police board for the position of uniformed police officer.

The plaintiffs employment continued without medical incident until April 27, 1994, at which time he was diagnosed with aortic valve problems and congestive heart failure, which required aortic valve replacement surgery. Thereafter, on February 2, 1995, the plaintiff learned that he also had hypertension.

In February, 1995, the plaintiff filed a claim for compensation pursuant to § 7-433c, which the defendants timely contested. With respect to heart disease benefits, the plaintiff sought compensation for the aortic valve surgery, including all related medical expenses as well as temporary total disability and permanent partial disability ratings. In addition, the plaintiff sought compensation for expenses related to his hypertension, including medications and a permanent partial disability rating. Hearings were held before the trial commissioner on May 21 and August 26, 1996.

The commissioner made the following relevant findings. At the time of the preemployment examination, the plaintiff and Williams were aware that the plaintiff suffered from congenital heart disease, which required corrective surgery in 1947. Williams was in a unique position as the plaintiffs personal physician for many years and, therefore, possessed knowledge of his preexisting heart disease and its consequences. This, along with the fact that Williams was the police surgeon and a member of the police board in the 1960s, could not be ignored and separated from his simple summary letter forwarded on behalf of the plaintiff in August, 1965.

The commissioner concluded that because the plaintiff and Williams held specific knowledge of the plaintiffs congenital heart disease, the determination of whether the preemployment physical examination revealed evidence of heart; disease should be based on all of the evidence rather than only on Williams’ 1965 report. Applying that standard to the facts as he found them, the commissioner concluded that the plaintiffs preemployment physical examination revealed evidence of heart disease and that consequently, under § 7-433c, he was not entitled to heart disease benefits. The commissioner also applied the rationale of Suprenant v. New Britain, 28 Conn. App. 754, 759, 611 A.2d 941 (1992) (preemployment examination evidence of either heart disease or hypertension precludes subsequent claim based on either condition), and dismissed the hypertension claim. Both parties subsequently filed motions to correct the trial commissioner’s findings, which were denied.

The plaintiff thereafter petitioned the board for review of the commissioner’s ruling. The board, with one member dissenting, affirmed the commissioner’s ruling. The majority noted that Williams’ dual capacity as the plaintiffs physician and the town’s police surgeon understandably caused Williams to believe that elaborating on the plaintiffs medical history in the 1965 report was unnecessary since “a ‘yes’ or ‘no’ recommendation regarding the [plaintiffs] fitness for duty would be adequate and wholly determinative.” The majority further stated that because § 7-433c was not in effect at the time of the 1965 preemployment physical examination, Williams had no impetus for specifically reporting the plaintiffs heart disease to the town and, therefore, the commissioner was justified in looking outside the four comers of the report. Having reached that conclusion, the majority further concluded that the commissioner’s evaluation of the evidence was in no way suspect and that the inference drawn therefrom, namely, that the plaintiff suffered from congenital heart disease in 1965, was reasonable. The board therefore affirmed the trial commissioner’s ruling and this appeal followed.

I

The plaintiff asserts that the commissioner improperly considered information not contained in the preemployment physical examination report in concluding that the plaintiff had not established entitlement to hypertension and heart disease benefits under § 7-433c. The plaintiff also contends that the board improperly affirmed the commissioner’s decision. We agree on both counts.

We first set forth the standards governing our review of decisions by the board. “[W]hen a decision of a commissioner is appealed to the [board], the [board] is obligated to hear the appeal on the record of the hearing before the commissioner and not to retry the facts. Fair v. People’s Savings Bank, 207 Conn. 535, 538-39, 542 A.2d 1118 (1988). The commissioner has the power and duty, as the trier of fact, to determine the facts. Castro v. Viera, 207 Conn. 420, 435, 541 A.2d 1216 (1988). The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Adzima, v. UAC/Norden Division, [177 Conn. 107, 118, 411 A.2d 924 (1979)]. [Castro v. Viera, supra, 435]. Our scope of review of the actions of the review [board] is similarly limited. DeBarros v. Singleton, 21 Conn. App. 107, 110, 572 A.2d 69 [cert. denied, 215 Conn. 808, 576 A.2d 538] (1990).” (Internal quotation marks omitted.) Vanzant v. Hall, 219 Conn. 674, 677, 594 A.2d 967 (1991). “Where, however, the appeal involves an issue of statutory construction that has not yet been subjected to judicial scrutiny, this court has plenary power to review the administrative decision. See Davis v. Norwich, 232 Conn. 311, 317, 654 A.2d 1221 (1995) (state agency not entitled to special deference when its construction of statute has not undergone previous judicial scrutiny).” Doe v. Stamford, 241 Conn. 692, 697, 699 A.2d 52 (1997).

Because the resolution of this appeal presents a novel issue of statutoiy construction, we further set forth the well established principles of statutoiy construction on which we rely. “[0]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative histoiy 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.” (Internal quotation marks omitted.) Castagno v. Wholean, 239 Conn. 336, 339, 684 A.2d 1181 (1996).

Section 7-433c (a) provides in relevant part that “in the event ... a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care . . . .” (Emphasis added.) This language clearly and unambiguously mandates that for the plaintiff to be foreclosed from the benefits of the statute, the results of his preemployment physical examination must contain evidence of hypertension or heart disease. The commissioner’s findings show that Williams’ August 2, 1965 report is the only source from which we can ascertain the results of the preemployment physical examination. It is beyond doubt that the language of that report does not indicate in any way that the plaintiff exhibited symptoms consistent with either hypertension or heart disease. We therefore must conclude that the plaintiffs examination did not “reveal any evidence” of either condition.

The decision of the trial commissioner also is inconsistent with other parts of the statute. Section 7-433c (a) further provides that “ [i]f successful passage of such a physical examination was, at the time of . . . employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim . . . .” (Emphasis added.) To say that an examination report, such as the one in the present case, that makes no mention of either hypertension or heart disease, can be disregarded, while a plaintiff whose examination is not reported at all is afforded the presumption of compensability, would render the statute illogical and inconsistent.

Furthermore, an interpretation allowing the consideration of evidence not contained in the preemployment physical examination would frustrate the purpose of § 7-433c as set forth by the legislature in the statute. Second-guessing a report that gave the plaintiff a clean bill of health, on which he may have justifiably relied, would effectively deprive him of the benefit conferred by the legislature and certainly would not “act as an inducement in attracting and securing persons” for employment as regular members of paid police departments. General Statutes (Rev. to 1995) § 7-433c (a).

In reaching the conclusion that, in this case, the evidence called for in § 7-433c must be contained, if at all, in the four comers of Williams’ report, we are mindful of the board’s concern that the statute at issue was not in effect at the time of the plaintiffs preemployment physical examination. A review of the history of the relevant heart and hypertension legislation leads us to conclude that the town was on notice that whether the plaintiff exhibited symptoms consistent with heart disease or hypertension at the time of his hire had possible future compensatory ramifications.

“In 1951, the General Assembly enacted a statute providing that any impairment of health caused by hypertension or heart disease resulting in the total or partial disability of a uniformed member of a paid municipal fire department who successfully passed a physical examination on entry into such service shall be presumed to have been suffered in the line of duty. [General Statutes (Sup. 1951)] § 175b. The rebuttable presumption afforded to firemen was, in 1953, made applicable to regular members of paid, municipal police departments; [General Statutes (Sup. 1953)] § 308c; and, in 1955, was applied to situations where death, as well as disability, results. [General Statutes (Sup. 1955)] § 407d. This provision, which was repealed and reenacted in 1961 as General Statutes § 7-433a; Public Acts 1961, No. 330, §§ 1, 2; was amended by the legislature in 1967 making it explicit that the statute applies whether the condition occurs while the policeman or fireman is on duty or off duty at the time. Public Acts 1967, No. 770, § 1.” Plainville v. Travelers Indemnity Co., 178 Conn. 664, 667-68, 425 A.2d 131 (1979). Similar to § 7-433c, § 7-433a provided compensation to those whose physical “examination failed to reveal evidence of’ hypertension or heart disease. Public Acts 1961, No. 61-330, § 1. Because the plaintiffs preemployment physical examination took place in 1965, when § 7-433a was in force, the town’s police surgeon had the same incentive to give, and the town had the same duty to ensure, a thorough examination and production of a thorough report thereof with any findings relative to the plaintiffs condition regarding heart disease and hypertension, as they would have had if § 7-433c had been in force. Furthermore, the fact that Williams wore multiple hats in this case certainly cannot serve to obviate his responsibilities to perform a thorough examination and to document comprehensive relevant findings.

For the reasons stated, the board improperly affirmed the commissioner’s denial of the plaintiffs application for benefits related to his heart disease on the ground that the preemployment physical examination revealed evidence of heart disease. Accordingly, the rationale of Suprenant v. New Britain, supra, 28 Conn. App. 759, cannot bar the plaintiffs claim with respect to hypertension.

II

In their brief, the defendants urge two alternate grounds for affirming the commissioner’s denial of the plaintiffs claims. The defendants argue that (1) the claim for heart disease benefits is time barred pursuant to General Statutes § 31-294c and (2) because the plaintiffs preemployment physical examination revealed evidence of heart disease, the plaintiff cannot recover benefits for either hypertension or heart disease. We are not persuaded.

A

The defendants first claim that the denial of that portion of the plaintiffs claim seeking benefits for heart disease can be affirmed because it is time barred pursuant to § 31-294c. We disagree.

Because the plaintiffs preemployment physical examination revealed no evidence of heart disease and because he was entitled to rely on the clean bill of health assigned to him in the 1965 report, we cannot say that, subsequent to his hiring, he was under any duty to file a claim for heart disease benefits any sooner than when the condition was first detected. The finding and dismissal by the trial commissioner indicates that the plaintiff was diagnosed with aortic valve problems and congestive heart failure in April, 1994. Therefore, the plaintiffs claim for heart disease benefits, filed less than one year later, in February, 1995, was timely under § 31-294c. Accordingly, the plaintiffs claim for heart disease benefits is compensable because his preemployment physical examination failed to reveal any evidence of heart disease.

Although the defendants did not argue against it, we also point out, for the benefit of future proceedings, that the portion of the plaintiffs claim relative to hypertension benefits also is timely. Again, the plaintiff filed his claim in February, 1995. The stipulation of facts entered into by the parties and made a part of the commissioner’s finding and dismissal, states that the plaintiff learned of his hypertension condition that same month, well within the one year period preceding the filing of his claim. Thus, the claim is timely. Furthermore, because our analysis in part I regarding heart disease is equally applicable to the determination of whether the 1965 examination revealed evidence of hypertension, we conclude that the plaintiffs examination revealed no such evidence. Therefore, the plaintiffs claim for hypertension benefits also is compensable.

B

The defendants also argue that because the plaintiffs preemployment physical examination revealed evidence of heart disease, the plaintiff is precluded from recovering benefits for hypertension as well as heart disease. In support of their argument, the defendants rely on the rationale of Suprenant v. New Britain, supra, 28 Conn. App. 759, for the proposition that if evidence of either hypertension or heart disease is revealed by the preemployment physical examination, the plaintiff is barred from claiming benefits for either condition. In light of our conclusion in part I, we conclude that this ground for affirmance also has no merit.

The decision of the workers’ compensation review board is reversed and the case is remanded to the board with direction to remand the matter to the trial commissioner for a determination of the amount of compensation.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1993) § 7-433c (a) provides: “In recognition of the peculiar problems of uniformed members of paid fire departments and regular members of paid police departments, and in recognition of the unusual risks attendant upon these occupations, including an unusually high degree of susceptibility to heart disease and hypertension, and in recognition that the enactment of a statute which protects such fire department and police department members against economic loss resulting from disability or death caused by hypertension or heart disease would act as an inducement in attracting and securing persons for such employment, and in recognition, that the public interest and welfare will be promoted by providing such protection for such fire department and police department members, municipal employers shall provide compensation as follows: Notwithstanding any provision of chapter 568 or any other general statute, charter, special act or ordinance to the contrary, in the event a uniformed member of a paid municipal fire department or a regular member of a paid municipal police department who successfully passed a physical examination on entry into such service, which examination failed to reveal any evidence of hypertension or heart disease, suffers either off duty or on duty any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability, he or his dependents, as the case may be, shall receive from his municipal employer compensation and medical care in the same amount and the same manner as that provided under chapter 568 if such death or disability was caused by a personal injuiy which arose out of and in the course of his employment and was suffered in the line of duty and within the scope of his employment, and from the municipal or state retirement system under which he is covered, he or his dependents, as the case maybe, shall receive the same retirement or survivor benefits which would be paid under said system if such death or disability was caused by a personal injury which arose out of and in the course of his employment, and was suffered in the line of duty and within the scope of his employment. If successful passage of such a physical examination was, at the time of his employment, required as a condition for such employment, no proof or record of such examination shall be required as evidence in the maintenance of a claim under this section or under such municipal or state retirement systems. The benefits provided by this section shall be in lieu of any other benefits which such policeman or fireman or his dependents may be entitled to receive from his municipal employer under the provisions of chapter 568 or the municipal or state retirement system under which he is covered, except as provided by this section, as a result of any condition or impairment of health caused by hypertension or heart disease resulting in his death or his temporary or permanent, total or partial disability. As used in this section, the term ‘municipal employer’ shall have the same meaning and shall be defined as said term is defined in section 7-467.”
      All references hereafter to § 7-433c are to the 1993 revision of the statute.

       Also named as a defendant in this action was the Connecticut Inter-Local Risk Management Agency, the town’s workers’ compensation insurance administrator.

       In addition to being the plaintiffs personal physician and the town’s police surgeon, Williams also was a member of the town police board.

       At the time the plaintiff first sustained a “condition or impairment of health caused by hypertension or heart disease” while in the employ of the town, namely, April, 1994, and the time the plaintiff filed his claim, namely, February, 1995, the text of § 7-433c was the same.

       See footnote 1.

       Although it is not necessary to our holding, we note, moreover, that if Williams’ multiple roles have any bearing on the duty of the parties in this case, it would seem to militate in favor of specificity in his report, which, in turn, would tend to support an inference contrary to that reached by the commissioner and the board, namely, that Williams did not note any evidence of either of the conditions because such evidence was not present.

       General Statutes § 31-294c (a) provides in relevant part: “No proceedings for compensation under the provisions of this chapter shall be maintained unless a written notice of claim for compensation is given within one year from the date of the accident or within three years from the first manifestation of a symptom of the occupational disease, as the case may be, which caused the personal injury . . .


author: VERTEFEUILLE, J.

text:
    JANE KRUPIEN v. PRYIA RAI
    (AC 18305)
    Foti, Lavery and Vertefeuille, Js.
    Submitted on briefs September 15
    officially released December 28, 1999

      William S. Palmieri filed a brief for the appellantappellee (plaintiff).

      Cynthia A. Watts filed a brief for the appellee-appellant (defendant).
   Opinion

VERTEFEUILLE, J.

The plaintiff, Jane Krupien, appeals from the trial court’s judgment rendered for the defendant, Pryia Rai, after a jury trial. The plaintiff brought this action alleging that she sustained personal injuries when the car in which she was a passenger was struck by a car operated by the defendant. On appeal, the plaintiff claims that the court improperly overruled her objection to a portion of the defendant’s closing argument and failed to give a curative instruction to the jury concerning the argument. We reverse the judgment of the trial court.

The following facts are relevant to this appeal. On August 3,1991, the plaintiff was a passenger in a vehicle driven by her husband on Route 5 in North Haven. The plaintiffs vehicle was struck by a vehicle driven by the defendant. The plaintiff alleged that the defendant was stopped at a stop sign on an intersecting street and then entered the stream of traffic on Route 5 and struck the front passenger side of the plaintiffs vehicle. The plaintiff contended that her injuries were caused by the defendant’s negligence.

The plaintiff and the defendant testified at trial. The plaintiff, however, did not call her husband to testify. The defendant requested that the court give the jury a missing witness charge under Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). The trial court denied the request.

During closing argument, the defendant’s counsel made express reference to the plaintiff’s failure to call her husband to testify despite the trial court’s denial of the Secondino charge. The plaintiff immediately objected and requested that the court give the jury a curative instruction. The court, however, overruled the objection and denied the plaintiffs request. The jury returned a verdict for the defendant. This appeal followed.

It is well established that the party seeking a Secondino charge must prove that the witness is available and is a witness that the opposing party would naturally produce. Id., 675. A party must seek and obtain an advance ruling from the trial court before arguing to the jury that an unfavorable inference should be drawn from the absence of a witness at trial. See State v. Clark, 48 Conn. App. 812, 831, 713 A.2d 834, cert. denied, 245 Conn. 921, 717 A.2d 238 (1998). “Unless [a] party fulfills the requirements of a Secondino charge ... he will not be allowed to argue it to the jury in any form, full or ‘watered down.’ ” (Citation omitted.) State v. Charlton, 30 Conn. App. 359, 370-71, 620 A.2d 1297, cert. denied, 225 Conn. 922, 625 A.2d 824 (1993). The defendant’s request for a missing witness charge was denied by the trial court. Defense counsel’s remarks in closing argument were therefore clearly improper.

The defendant contends that even if the defense counsel’s remarks were improper and should have been stricken, the error was harmless. We do not agree.

In this case, liability was not conceded. Both the plaintiff and the defendant testified, and they disagreed about how the accident happened. No other witnesses to the accident testified. We conclude that in rendering a verdict for the defendant, the jury may have drawn an adverse inference from the plaintiffs failure to call her husband to testify as a result of defense counsel’s improper remarks. Thus, we cannot say that the error in this case was harmless.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The defendant filed a cross appeal in this case, arguing that the trial court should have given amissing witness charge to the jury under Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). Technically, however, his claim is not properly part of a cross appeal because he was not aggrieved by the judgment of the trial court. See Practice Book § 61-8. Further, the defendant’s claim cannot be treated as an adverse ruling in the event that a new trial is awarded pursuant to Practice Book § 63-4 (a) (1) (B) because the legislature has abolished the use of the missing witness charge in civil cases. See Public Acts 1998, No. 98-50. See footnote 2 of this opinion. We therefore address only the plaintiffs claim on appeal and dismiss the defendant’s cross appeal.

       The rule set forth in Secondino provides: “The failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would have been unfavorable to the party’s cause.” (Internal quotation marks omitted.) Secondino v. New Haven Gas Co., supra, 147 Conn. 675. The trial underlying this appeal was held in March, 1998. The legislature abolished the Secondino rale in civil cases, effective October 1, 1998. See Public Acts 1998, No. 98-50. This legislation, however, does not affect our decision in this appeal.

       Counsel for the defendant stated: '‘[The plaintiff] also stated 1hat she did not make a claim against her husband, wiiich would make you think that . . . she considered that he had no fault in this, yet, she chose not to put him on the stand.”

       The trial court judge stated, “I will, in my instructions to the jury, indicate to the jury that these are closing remarks only, they are not evidence, nor are they testimony.”


author: PER CURIAM.

text:
    JOHN DOE v. STATEWIDE GRIEVANCE COMMITTEE
    (AC 18617)
    O’Connell, C. J., and Hennessy and Vertefeuille, Js.
    Argued October 20
    officially released December 28, 1999

      Max F. Brunswick, for the appellant (plaintiff).

      Cathy A. Dowd, assistant bar counsel, for the appellee (defendant).
   Opinion

PER CURIAM.

The principal issue presented by this appeal is whether an attorney against whom a grievance complaint has been filed with the statewide grievance committee (committee) must exhaust available administrative remedies before seeking judicial recourse from an adverse ruling of the committee. The plaintiff attorney, proceeding anonymously, appeals from the trial court’s judgment denying his request permanently to enjoin the committee from proceeding with a public hearing on certain alleged violations of the Rules of Professional Conduct. The committee moved to dismiss this action, claiming that the court lacked subject matter jurisdiction because the plaintiff failed to exhaust his administrative remedies by completing the public hearing already initiated and exhausting the remaining procedures set forth in Practice Book § 27J, now § 2-35. The trial court denied the committee’s motion to dismiss. The trial court thereafter denied the plaintiffs request for injunctive relief.

Subsequent to the filing of briefs in this appeal, our Supreme Court decided Johnson v. Statewide Grievance Committee, 248 Conn. 87, 101, 726 A.2d 1154 (1999), holding that an attorney must exhaust his or her administrative remedies available through the grievance process before seeking judicial review or intervention. The Supreme Court rejected the claim, similar to the one made in the present case, that the attorney should not be required to exhaust his administrative remedies because of the harm to his practice and his reputation that would result from proceeding with the public hearing before the reviewing subcommittee. In rejecting the claim, the Supreme Court noted that the plaintiff had “failed to establish that any conceivable harm he might suffer as a result of a public hearing . . . would rise to a level warranting equitable intervention by the Superior Court.” Id., 107.

In light of Johnson, the committee’s motion to dismiss for failure to exhaust administrative remedies should be granted. The form of the judgment in favor of the committee is therefore improper. See Waterworks v. Audet, 29 Conn. App. 722, 617 A.2d 932 (1992).

The form of the judgment is improper, the judgment is reversed and the case is remanded with direction to render judgment dismissing the plaintiffs action.


author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. CHRISTIE MIKOLINSKI
    (AC 17866)
    Lavery, Schaller and Hennessy, Js.
    Argued September 29
    officially released December 28, 1999

      Jeffrey D. Brownstein, with whom, on the brief, were Robert J. McKay and Gregory A. Thompson, for the appellant (defendant).

      Eileen McCarthy Geel, assistant state’s attorney, with whom, on the brief, were Scott J. Murphy, state’s attorney, and Brian Preleski, assistant state’s attorney, for the appellee (state).
   Opinion

HENNESSY, J.

The defendant, Christie Mikolinski, appeals from the judgment of conviction, rendered after a trial to the court, of operation of a motor vehicle while under the influence of liquor in violation of General Statutes § 14-227a. On appeal, the defendant claims that the trial court improperly concluded that (1) the detention of her vehicle pursuant to a sobriety checkpoint was constitutionally valid, (2) there was sufficient evidence presented to prove that she was the driver arrested at the sobriety checkpoint and (3) there was sufficient evidence that the defendant was operating her vehicle on a public highway. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. “Between 11 p.m. on May 23, 1997, and 3 a.m. on May 24,1997, the Southington police department conducted a sobriety checkpoint of eastbound and westbound traffic in the area of 1199 Meriden-Waterbury Turnpike. Signs were posted in each direction alerting motorists to the checkpoint, and routes exiting the turnpike were available to motorists in each direction who chose not to enter the checkpoint.

“On May 24, 1997, at approximately 1:35 a.m., the [defendant] entered the checkpoint and stopped her vehicle. While the [defendant] was stopped, a police officer asked her a number of questions.” Mikolinski v. Commissioner of Motor Vehicles, 55 Conn. App. 691, 693, 747 A.2d 518 (1999). After the defendant admitted that she had been drinking alcohol, the officer “directed [her] to an adjacent parking lot where a second officer conducted a detailed investigation. Upon approaching the [defendant’s] vehicle, the second officer smelled a strong odor of alcohol on the [defendant’s] breath and noticed that her eyes were red and glassy. He administered several sobriety tests, all of which the [defendant] failed. The second officer then placed her under arrest for operating a motor vehicle while under the influence of liquor in violation of General Statutes § 14-227a.” Id.

At trial, the defendant filed a motion to suppress evidence obtained from her as a result of her detention and a motion for judgment of acquittal at the conclusion of the state’s case. The court denied both motions.

I

The defendant first claims that the trial court improperly concluded that her detention at the sobriety checkpoint was constitutionally valid.

A

The defendant claims that her detention violates article first, § 7, of the constitution of Connecticut and federal constitutional principles in that the detention was an unreasonable seizure without a reasonable and articulable suspicion, and that the evidence obtained as a result thereof should have been suppressed. We disagree.

In its memorandum of decision, the court noted that the checkpoint was constitutionally valid, having found that the procedures used embodied the same neutral criteria as the checkpoint that was upheld in State v. Boisvert, 40 Conn. App. 420, 426, 671 A.2d 834, cert. denied, 237 Conn. 903, 674 A.2d 1332 (1996). “On appeal, it is the function of this court to determine whether the decision of the court is clearly erroneous.” (Internal quotation marks omitted.) State v. Torres, 197 Conn. 620, 625, 500 A.2d 1299 (1985).

“It is well established law that even though stopping a vehicle at a checkpoint is a seizure under both the federal and state constitutions, such investigatory seizures and detention are permitted under both constitutions. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 450, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990); State v. Boisvert, [supra, 40 Conn. App. 426].” Mikolinski v. Commissioner of Motor Vehicles, supra, 55 Conn. App. 700. In State v. Boisvert, supra, 426, this court concluded that “sobriety checkpoints are a valid exercise of police power under our state constitution, that no requirement of a ‘reasonable and articulable suspicion’ must exist for the initial stop, and that the balancing test . . . is the proper test to be utilized. That test determines whether the strength of the public interest in combating the threat to public safety of operators of motor vehicles whose ability to operate may be impaired due to the consumption of intoxicating liquor, and the effectiveness of roadside checkpoints outweigh the minimal intrusion on a motorist’s privacy.” Accordingly, this court held that “[m]inimal intrusion in the interest of public safety may be allowed in the form of checkpoint stops when the stop is conducted pursuant to a practice embodying neutral criteria.” Id. Similarly, the United States Supreme Court has upheld the constitutionality of the “use of sobriety checkpoints generally.” Michigan Dept. of State Police v. Sitz, supra, 450.

In the present case, the court found that the sobriety checkpoint was conducted according to guidelines established by the Southington police department that were substantially the same as the state police guidelines upheld in State v. Boisvert, supra, 40 Conn. App. 426. The court noted that the Southington police had established a method of operation approved by ranking officers, that a safe location had been chosen, that posted signs alerted drivers to the checkpoint’s existence and provided them with the opportunity to exit before entering the checkpoint, that every car was stopped and that the officers had been instructed to ask each motorist a specific set of questions. We hold that the trial court’s finding that the checkpoint embodied neutral criteria was not clearly erroneous, and, thus, that court properly determined that the checkpoint was constitutional under article first, § 7, of the constitution of Connecticut and under the federal constitution.

B

The defendant claims next that her detention violated article first, § 9, of the constitution of Connecticut, which provides that “[n]o person shall be arrested, detained or punished, except in cases clearly warranted by law.” The defendant maintains that without a reasonable and articulable suspicion, the police could not detain her at a roadside sobriety check stop pursuant to article first, § 9. We disagree.

Article first, § 9, has generally been characterized as guaranteeing due process of law. State v. Lamme, 216 Conn. 172, 177, 579 A.2d 484 (1990). The text of article first, § 9, “indicates that the specific content appropriately to be assigned to the phrase ‘clearly warranted by law’ depends on the particular liberty interest that is at stake.” Id., 178. “[Section] 9’s separate inclusion of arrests and detentions counsels against finding an intent to impose a constitutional requirement for a parity of treatment between the greater intrusion on personal freedom represented by an arrest and the lesser intrusion represented by a detention.” Id.

In State v. Lamme, supra, 216 Conn. 172, the police had legally stopped the defendant for operating a motor vehicle without illuminated headlights and subsequently detected the odor of alcohol on his breath. His detention for sobriety testing, without probable cause for arrest, was found to be permissible because the principles of due process permit a brief investigatory detention “if the police have a reasonable and articulable suspicion that a person has committed or is about to commit a crime.” Id., 184. Accordingly, our Supreme Court held that “the principles underlying constitutionally permissible Terry stops, as further construed in cases such as United States v. Hensley, [469 U.S. 221, 227, 105 S. Ct. 675, 83 L. Ed. 2d 604 (1985)], and Florida v. Royer, [460 U.S. 491, 498, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983)], define when detentions are ‘clearly warranted by law’ under article first, § 9.” State v. Lamme, supra, 184.

In the present case, however, the police did not have a reasonable and articulable suspicion to detain the defendant at the roadside sobriety checkpoint. The policy of the police at the checkpoint was to stop every car regardless of whether there was suspicion of illegal activity. The principles of due process, however, warrant the holding that this roadside sobriety checkpoint is permitted under article first, § 9, of the constitution of Connecticut.

In deciding that a brief detention was permissible under article first, § 9, our Supreme Court noted in State v. Lamme, supra, 216 Conn. 184, that “[b]alancing the circumscribed nature of a Terry stop intrusion against the serious risks of criminal behavior, especially in the context of the risks associated with driving while under the influence of intoxicating liquor, we are persuaded that the defendant’s brief detention did not violate his due process rights.” Similarly, after balancing the limited detention involved with a roadside checkpoint against the risks of driving under the influence of alcohol, we conclude that the roadside sobriety checkpoint in this case did not violate the defendant’s due process rights. “The state has a vital interest in keeping intoxicated drivers off the roads and highways.” State v. Lamme, 19 Conn. App. 594, 599, 563 A.2d 1372 (1989), aff'd, 216 Conn. 172, 579 A.2d 484 (1990). Balanced against that strong state interest is the relatively minor intrusiveness of a roadside sobriety checkpoint, where police detain individuals in their cars only for a short period of time and ask a few questions.

Our Supreme Court adopted federal constitutional precedents to illuminate the provisions of article first, § 9, of the Connecticut constitution. State v. Lamme, supra, 216 Conn. 184. We note particularly the decision of the United States Supreme Court in Michigan Dept. of State Police v. Sitz, supra, 496 U.S. 444, in which the court upheld roadside sobriety checkpoints under the fourth and fourteenth amendments to the United States constitution. Despite the “reasonable and articulable suspicion” requirement for detentions as delineated in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), the United States Supreme Court held the roadside sobriety checkpoint detention to be constitutional, without a reasonable and articulable suspicion, because the state’s interest outweighed the “slight” measure of intrusion on motorists and the checkpoint reasonably advanced the state’s interest. Michigan Dept. of State Police v. Sitz, supra, 451, 455.

In the present case, the sobriety checkpoint was conducted pursuant to guidelines established by the Southington police department, which the trial court found to be substantially the same as the state police guidelines, titled “Spot Checks,” from the department of public safety’s administration and organizational manual. The guidelines embody neutral criteria, including a plan to stop every car at a safe location, to ask only a few uniform questions and to provide warning signs with alternative routes so motorists could avoid the sobriety checkpoint. Weighing the gravity of public concern regarding the operation of motor vehicles under the influence of alcohol against the intrusiveness on the individual’s liberty during roadside sobriety checkpoints, we are persuaded that the defendant’s brief detention at the checkpoint did not violate her due process rights. We hold, therefore, that the roadside checkpoint does not violate article first, § 9, of the constitution of Connecticut.

II

The defendant next claims that there was insufficient evidence presented to prove that she was the driver arrested at the roadside sobriety checkpoint. We disagree.

“The standard of review of an insufficiency claim is twofold. We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” (Internal quotation marks omitted.) State v. Harris, 227 Conn. 751, 757, 631 A.2d 309 (1993).

On the basis of the evidence and the inferences reasonably drawn therefrom, the court could have concluded beyond a reasonable doubt that the defendant was the woman arrested May 24, 1997, for violation of § 14-227a. The court noted that both police officers who detained the defendant identified her by name during the trial and observed her presence in court. The first officer testified that he had a personal recollection of stopping the defendant at the sobriety checkpoint. He specifically recalled introducing himself to the defendant and her admission that she had just consumed a “few beers.” Likewise, the second officer testified that he recalled approaching the defendant’s car and smelling the alcohol on her breath. He also had a specific recollection of the defendant’s performance during the sobriety test. Although neither officer was requested to point to the defendant in court, both officers testified that they specifically recalled the defendant and her condition on the night of the roadside sobriety check stop. We conclude that there was sufficient evidence of identification for the court to have found beyond a reasonable doubt that the defendant was the woman arrested at the roadside sobriety checkpoint on May 24, 1997.

Ill

The defendant claims next that there was insufficient evidence to prove beyond a reasonable doubt that she was operating her motor vehicle on a public highway as required by § 14-227a. We disagree.

The question of whether a roadway is a public highway is a question of fact. Ventres v. Farmington, 192 Conn. 663, 666-67, 473 A.2d 1216 (1984). The trial court noted in its memorandum of decision that both police officers testified that the defendant operated her motor vehicle on a public highway, specifically, Connecticut State Route 322 when she was detained at the sobriety checkpoint. We hold that there was sufficient evidence for the court reasonably to have concluded that the defendant was operating her motor vehicle on a public highway.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 14-227a (a) provides: “No person shall operate amotor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drug or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

       In Mikolinski v. Commissioner of Motor Vehicles, supra, 55 Conn. App. 691, the defendant appealed from the trial court’s judgment sustaining the decision of the commissioner of motor vehicles to suspend her operator’s license. In that case, this court set forth the facts and addressed many of the issues raised by the defendant in this appeal. Due to the different standards of review for an administrative license suspension and a criminal proceeding; see Kirei v. Hadley, 47 Conn. App. 451, 455, 705 A.2d 205 (1998); we must review similar issues raised in Mikolinski v. Commissioner of Motor Vehicles, supra, 691.

       While the defendant in State v. Boisvert, supra, 40 Conn. App. 422, claimed that the roadside sobriety checkpoint violated article first, §§ 7 and 9, of the Connecticut constitution, this court declined to address the § 9 claim as it was raised for the first time on appeal. Id., 423 n.5. This court, did note, however, that if it were “to consider the defendant’s claims pursuant to article first, § 9, one of our state constitutional provisions that guarantees due process of law, we would be guided by our Supreme Court’s holding that a brief investigatory detention, even without probable cause, passes state constitutional muster.” Id., citing State v. Lamme, 216 Conn. 172, 184, 579 A.2d 484 (1990).

        Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

       The fourteenth amendment to the United States constitution provides that no state shall “deprive any person of life, liberty or property, without due process of law . . .

       The Supreme Court stated in Michigan Dept. of State Police v. Sitz, supra, 496 U.S. 450-51, that “the instant action challenges only the use of sobriety checkpoints generally. We address only the initial stop of each motorist passing through a checkpoint and the associated preliminary questioning and observation by checkpoint officers. Detention of particular motorists for more extensive field sobriety testing may require satisfaction of an individualized suspicion standard.” Similarly, we are only addressing the initial stop of an individual at a roadside sobriety checkpoint. For the police to conduct the more detailed field sobriety tests, they must have a reasonable and articulable suspicion that the individual was under the influence of alcohol. State v. Lamme, supra, 216 Conn. 172.

       The Southington police department is not bound by guidelines “promulgated in the department of public safety’s administrative and organizational manual . . . Mikolinski v. Commissioner of Motor Vehicles, supra, 55 Conn. App. 702 n.15.

       See footnote 1.

       A Southington police sergeant testified as follows:
      “Q: On what street was this checkpoint set up?
      “A: Meriden-Waterbury Turnpike, which is Connecticut State Route 322.
      “Q: And, that is a public highway here in the state of Connecticut?
      “A: Yes, it is.”


text:
    MARLON SYMS v. COMMISSIONER OF CORRECTION
    (AC 18394)
    Landau, Mihalakos and Dupont, Js.
    Argued October 18
    officially released December 28, 1999

      James A. Shanley, special public defender, for the appellant (petitioner).

      Nancy Chupak, deputy assistant state’s attorney, with whom, on the brief, were James Thomas, state’s attorney, and Edward R. Narus, senior assistant state’s attorney, for the appellee (respondent).
   Opinion

PER CURIAM.

After a review of the record and briefs, and after hearing the parties at oral argument, we conclude that the petitioner, Marlon Syms, has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, has failed to sustain his burden of persuasion that the denial of certification to appeal from the dismissal of his petition for a writ of habeas corpus was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

The habeas court’s dismissal of the petitioner’s writ was predicated on a factual review of the petitioner’s claim and a determination that the petitioner had failed to rebut the “strong presumption that counsel’s conduct f[ell] within the wide range of reasonable professional assistance . . . .” Safford v. Warden, 223 Conn. 180, 193, 612 A.2d 1161 (1992).

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petitioner’s petition for certification to appeal.

The appeal is dismissed.

       The habeas court also found as a fact that counsel had effectively attacked the only eyewitnesses who had identified the petitioner and that counsel’s decision not to present any witnesses was reasonable trial court strategy in light of all the circumstances.