text:
    State of Connecticut v. Robert W. Haynes
    (9339)
    (9340)
    Dupont, C. J., O’Connell and Norcott, Js.

      Argued May 28
    decision released August 13, 1991

      Elizabeth M. Inkster, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Lawrence J. Tytla, assistant state’s attorney, with whom, on the brief, was C. Robert Satti, Sr., state’s attorney, for the appellee (state).
   Norcott, J.

This case presents two issues: (1) whether the trial court improperly instructed the jury on the state’s burden of proof relative to circumstantial evidence and (2) whether the trial court improperly denied the defendant credit toward his term of probation.

The defendant, Robert W. Haynes, was charged by information with assault in the third degree in violation of General Statutes § 53a-61 and possession of narcotics in violation of General Statutes (Rev. to 1981) §§ 19-452 and 19-481 (a). A jury found him guilty as charged, and he was sentenced to concurrent prison terms of one year on the assault charge and one and one-half to three years on the possession charge. Following the jury’s verdict, the defendant was charged in a separate case with violating the terms of his probation, which had been imposed based on two prior convictions unrelated to this matter. The defendant admitted that he had violated his probation, and the court extended the probation for a period of five years to commence upon his release from incarceration.

The defendant’s appeals from those judgments were consolidated for review. We affirm the first judgment in part and reverse it in part. We dismiss the appeal from the revocation of probation.

The charges against the defendant arose from an incident in a New London cafe on the evening of April 18, 1981. The victim, Cynthia Griffin, who owed the defendant ten dollars for a bag of heroin she had bought from him, went to the club that evening. During an encounter between them, an argument ensued, and the defendant struck her in her right eye with his fist, knocking her to the floor. At trial, Griffin testified that the defendant hit her after becoming angry over the money she owed. Two police officers testified that shortly after the incident they saw bruises about her eye and that it was puffy and red. The defendant called two witnesses who testified that they were in the club at the time of the incident but did not see him strike Griffin. The defendant did not testify, and no evidence was presented as to whether he hit Griffin accidentally or intentionally.

After she was struck, Griffin left the club to find a police officer. She summoned Officer Glenn Davis, gave him a description of the defendant and said that the defendant might have a weapon. After additional officers arrived, the police, accompanied by an acquaintanee of Griffin, entered the club in search of the defendant. After failing to find him, the police left and reentered shortly thereafter with Griffin. She identified the defendant, who at that time was talking on a pay telephone. At trial, police testified that, when the defendant noticed the officers, there was a brief, shiny flash in the air after the defendant made a movement with his right hand. Police testified that, when they first confronted the defendant, it was “very dark” inside the club, and from where they were standing they could not see the floor area adjacent to the telephone. They also testified that no one else was standing in the area at the time, and that the flash possibly could have resulted from the movement of buttons on a garment the defendant may have been wearing. Later, after the defendant was taken into custody, police used a flashlight to search the floor area near the telephone. They found a pouch containing heroin and a small New York City police badge on the floor in the area where the defendant had been standing. Police also found three empty glassine bags on the defendant’s person.

The defendant claims that his assault conviction should be vacated because the trial court improperly instructed the jury on the state’s burden of proof relative to the use of circumstantial evidence. He claims that the court’s instruction permitted the jury to infer facts, including those pertinent to intent, on the basis of a preponderance of the evidence. The defendant argues that this had the effect of diluting the state’s burden to prove the essential elements of a criminal charge beyond a reasonable doubt, thereby denying him his federal and state constitutional rights to due process. We disagree.

Although the defendant admits that he neither filed a request to charge nor excepted to the court’s instruction, we review his claim under the Evans-Golding doctrine because “it ‘implicates the fundamental constitutional right that the state establish [the defendant’s] guilt beyond a reasonable doubt.’ ” State v. Robinson, 204 Conn. 207, 210, 527 A.2d 694 (1987), quoting State v. Whelan, 200 Conn. 743, 756, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986). First, we note that the defendant urges us to scrutinize closely the court’s instruction to the jury on circumstantial evidence because intent was at issue in the trial. When the principal factual issue is intent, which is often proven through circumstantial evidence, a reviewing court will closely scrutinize jury instructions regarding use of circumstantial evidence. State v. Robinson, supra; State v. Mullings, 202 Conn. 1, 12, 519 A.2d 58 (1987); State v. Whelan, supra; State v. Rodgers, 198 Conn. 53, 59, 502 A.2d 360 (1985); State v. Farrar, 7 Conn. App. 149, 155, 508 A.2d 49, cert. denied, 200 Conn. 805, 512 A.2d 229 (1986). A review of the record shows, however, that intent was not at issue at trial with respect to the assault charge. Therefore, we review the court’s instruction “not in isolation, but in the context of the charge as a whole, to determine whether it is ‘ “reasonably possible that the jury was misled.” ’ ” State v. Robinson, supra; State v. Mullings, supra; State v. Whelan, supra; State v. Reddick, 197 Conn. 115, 132, 496 A.2d 466 (1985), cert. denied, 474 U.S. 1067, 106 S. Ct. 822, 88 L. Ed. 2d 795 (1986); State v. Farrar, supra, 155-56.

The trial court instructed the jury that it could infer the existence of one or more facts based on other facts offered into evidence if (1) “the fact from which you are asked to draw the inference has itself been proven beyond a reasonable doubt,” and (2) such inference “is not only logical and reasonable but is strong enough so that you can find that is more probable than not that the fact to be inferred is true.” (Emphasis added.) While we agree with the defendant that the trial court improperly instructed the jury that it could infer facts from circumstantial evidence under the “more probable than not” standard, we find that such error was harmless as applied to the conviction of assault. The trial court instructed the jury numerous times that the state had the burden of proving all of the elements of the crime charged beyond a reasonable doubt. Moreover, assault is a crime that may be proven by direct evidence or through circumstantial evidence and inferences properly drawn therefrom. The state presented both direct evidence from the victim that the defendant was the perpetrator of the assault and circumstantial evidence from the testimony of the police officers that the defendant was guilty. After reviewing the jury instruction in its entirety, we are satisfied that “ ‘it was not reasonably possible that the isolated use of the phrase “more probable than not” confused or misled the jury with regard to the state’s heavy burden of proof.’ ” State v. Robinson, supra, 211; State v. Mullings, supra, 14; State v. Mason, 186 Conn. 574, 585-86, 442 A.2d 1335 (1982); State v. Walker, 9 Conn. App. 373, 376-77, 519 A.2d 83 (1986), cert. denied, 202 Conn. 805, 520 A.2d 1286 (1987); State v. Farrar, supra, 156. Therefore, the conviction of assault is affirmed.

The defendant also claims that his conviction for possession of heroin was improper for the same reasons. We note at the outset that the state concedes that the trial court improperly instructed the jury and that the conviction cannot stand. The state also concedes that the principal factual issue at trial, possession, was established entirely through circumstantial evidence. In such a case, a reviewing court will closely scrutinize the trial court’s jury instructions as to such evidence. State v. Robinson, supra, 210; State v. Mullings, supra, 12; State v. Whelan, supra, 757. Here, the court instructed the jury that it was entitled to draw reasonable inferenees from the evidence when “it is more probable than not that the fact to be inferred is true.” From these inferences, the jury was thus permitted to draw the inference that the defendant possessed the heroin. Although the court also instructed the jury that every element of the offense must be proven beyond a reasonable doubt, we conclude that it nevertheless was reasonably possible the jury was misled with respect to the state’s burden of proving possession beyond a reasonable doubt. State v. Whelan, supra, 758. We therefore reverse the defendant’s conviction on this count.

Finally, the defendant asserts that the trial court improperly extended his probation and denied him credit for time served. Although we note that the defendant’s conviction for assault provided a proper basis for extending his probation, we decline to consider these claims, as no controversy exists for this court to adjudicate. “ ‘ “It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.” ’ ” McCallum v. Inland Wetlands Commission, 196 Conn. 218, 225, 492 A.2d 508 (1985), quoting Arnold Bernhard & Co. v. Planning & Zoning Commission, 194 Conn. 152, 158, 479 A.2d 801 (1984). The defendant’s term of probation has expired. Since the defendant is no longer being supervised under the term of probation, no relief exists that this court could grant. The defendant’s appeal from the extension of his probation is dismissed.

The judgment is reversed only as to the conviction of possession of heroin and the case is remanded for a new trial on that charge; the appeal from the revocation of probation is dismissed.

In this opinion the other judges concurred.

       General Statutes §§ 19-452 and 19-481 (a) are now codified at General Statutes §§ 21a-245 and 21a-279 (a), respectively.

        State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989); State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973).


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    Alan S. Green v. Ensign-Bickford Company
    (7813)
    Spallone, O’Connell and La very, Js.
    Argued December 10, 1990
    decision released August 20, 1991

      A. Paul Spinella, with whom, on the brief, was Susan V. Tirrell, certified legal intern, for the appellant (plaintiff).

      James A. Wade, with whom were Linda L. Morkan and, on the brief, Kathleen C. Stone, for the appellee (defendant).
   O’Connell, J.

This is an action to recover for injuries allegedly incurred as a result of an explosion at the defendant’s facilities in Simsbury on August 15, 1984. The plaintiff’s three count complaint alleged (1) an ultrahazardous activity, (2) the maintenance of an absolute nuisance, and (3) negligence. At the close of the plaintiff’s case, the court granted the defendant’s motion for a directed verdict as to the ultra-hazardous activity and nuisance counts and reserved judgment on the negligence count. At the conclusion of the trial, the court directed a verdict against the plaintiff on the negligence count as well. The plaintiff appeals from the direction of the verdicts.

On appeal, the plaintiff claims, inter alia, that the court improperly (1) found that the defendant’s activity was not an ultrahazardous activity, (2) ruled that the defendant’s activity did not constitute a nuisance and (3) declined to qualify the defendant’s causation witness as an expert. These claims are dispositive of the appeal. We affirm the trial court’s judgment in part and reverse it in part.

The following facts are necessary to the disposition of this appeal. The defendant corporation has been a manufacturer of explosives in Simsbury for more than 150 years. Ancillary to its manufacturing, the defendant conducts research and development of new explosives. Some of the research takes place in a frangible structure designed to allow its detached wooden roof to blow off and its cinder block walls to fall outward in the event of an explosion. The structure was situated on a concrete slab surrounded on three sides by twenty foot high earthen berm with the fourth side open towards a heavily wooded area known as the Powder Forest.

On the day of the explosion, three of the defendant’s employees, all experienced professional chemists, were engaged in a research project in this building. The project entailed mixing chemicals in a reactor located twelve to fourteen feet above the floor. For reasons that will probably never be known, a colossal explosion took place, killing the researchers and completely destroying the building. At the time of the explosion, the plaintiff was in bed on the second story of his wood frame house located approximately seven eighths of a mile from the accident. Testimony as to the exact distance varied slightly at trial. The plaintiff testified that the explosion lifted him upward from his bed and threw him across the room causing him serious injuries.

I

Standard of Review

As a threshold matter, we observe that the plaintiff did not file a motion to set the verdict aside, thereby limiting this court to review under the plain error standard. Practice Book § 4185; Dunham v. Dunham, 204 Conn. 303, 311-12, 528 A.2d 1123 (1987). “Review under the plain error doctrine ‘is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.’ ” Williamson v. Commissioner, 209 Conn. 310, 317, 551 A.2d 704 (1988), quoting State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).

As a second threshold matter, we note that directed verdicts are not favored and may be directed only when the jury could not reach any other conclusion; Kelehear v. Larcon, Inc., 22 Conn. App. 384, 386, 577 A.2d 746 (1990); or where the decisive question is a matter of law. A-G Foods, Inc. v. Pepperidge Farms, Inc., 216 Conn. 200, 206, 579 A.2d 69 (1990). In determining whether the trial court properly directed a defendant’s verdict, we consider the evidence in the light most favorable to the plaintiff. Marron & Sipe Building & Contracting Corporation v. Flor, 22 Conn. App. 689, 699, 580 A.2d 508 (1990). We analyze the plaintiff’s claims against this background of the law of plain error and directed verdicts.

II

Ultrahazardous Activity Count

A

STRICT LIABILITY

The first count is based on the doctrine of absolute or strict liability imposed on one who engages in an ultrahazardous activity. Under this doctrine, a plaintiff is not required to show that his loss was caused by the defendant’s negligence. It is sufficient to show only that the defendant engaged in an ultrahazardous activity that caused the defendant’s loss. The doctrine has traditionally been applied in cases involving blasting and explosives. See D. Wright & J. Fitzgerald, Connecticut Law of Torts (3d Ed.) § 122. Connecticut’s sole extension beyond blasting cases is to damage from a concussion resulting from pile driving. Caporale v. C. W. Blakeslee & Sons, Inc., 149 Conn. 79, 85, 175 A.2d 61 (1961). Although liability was initially limited to damage directly caused by flying debris resulting from the explosion, this was in time expanded to include damage caused by concussion or vibration. Whitman Hotel Corporation v. Elliott & Watrous Engineering Co., 137 Conn. 562, 570, 79 A.2d 591 (1951). The Whitman court held that “[a] person who uses an intrinsically dangerous means to accomplish a lawful end, in such a way as will necessarily or obviously expose the person of another to the danger of probable injury, is liable if such injury results even though he uses all proper care.” Id., 565. Applying this standard to the present case, we conclude that the defendant’s experiment with a highly explosive chemical created an unavoidable risk of damage, and that the risk was not alleviated by the fact that the research was conducted in a specially designed building.

The defendant argues that the blasting and pile driving cases are factually distinguishable because those cases all involve the intentional release of destructive energy. The defendant claims that in the present case the doctrine of strict liability for an ultrahazardous activity is not applicable because the explosion was unintentional. This distinction is specious because the underlying rationale for strict liability in blasting and pile driving cases is that one acts at his own peril when he creates an unavoidable risk of damage. Caporale v. C. W. Blakeslee & Sons, Inc., supra. There is no distinction between intentional and unintentional explosions where a person creates the conditions that give rise to an unavoidable risk of damage.

The plaintiff relies on Exner v. Sherman Power Construction Co., 54 F.2d 510 (2d Cir. 1931), to support his position that all activity involving explosives are ultrahazardous per se. In Exner, the court determined that a Vermont blasting company was absolutely liable for the results of an explosion whether the dynamite explodes when stored or when employed in blasting operations. “To be sure there is a greater likelihood of damage from blasting than from storage, but in each case the explosion arises from an act connected with a business conducted for profit and fraught with substantial risk and possibility of the gravest consequences.” Id., 514.

In short, the Exner court determined that the blasting company was the insurer of any accidents associated with its use of explosives. “When, as here, the defendant, though without fault, has engaged in the perilous activity of storing large quantities of a dangerous explosive for use in his business, we think there is no justification for relieving it of liability, and that the owner of the business, rather than a third person who has no relation to the explosion, other than that of injury, should bear the loss.” Id.

Similarly, in the present case, the defendant was engaged in the perilous activity of conducting research with a highly volatile chemical for use in its explosive manufacturing business. The fact that the defendant did not intend to cause an explosion with this research does not justify relieving it of liability. Exner and the line of cases of which it was based provide a sufficient legal basis for this court to conclude that the defendant’s research was an ultrahazardous activity.

The defendant also claims that this court cannot impose strict liability because the trial court concluded that “there is no evidence from which the jury could reasonably find that the nitration process that led to the explosion created an unavoidable risk of harm.” The defendant argues that without a finding of unavoidable risk, its research cannot be legally labeled an ultra-hazardous activity. The issue of whether an activity is abnormally dangerous, however, is a question of law for a court to decide. Caporale v. C. W. Blakeslee & Sons, Inc., supra, 86; Whitman Hotel Corporation v. Elliott & Watrous Engineering Co., supra, 565; D. Wright & J. Fitzgerald, supra; 3 Restatement (Second), Torts § 520, comment (1). Thus, the trial court’s conclusion that the jury would have inadequate evidence before it to decide whether the defendant’s activity was ultrahazardous was erroneous.

Sections 519 and 520 of 3 Restatement (Second), Torts, address the doctrine of strict liability for ultra-hazardous activities. Section 519 provides in pertinent part: “(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.” Comment (d) of the Restatement points out that the liability of § 519 is not based on any intent of the defendant to do harm to the plaintiff; rather, it arises out of the abnormal danger of the activity itself, and the risk that it creates of harm to those in the vicinity. “It is founded upon a policy of law that imposes upon anyone who for his own purposes creates an abnormal risk of harm to his neighbors, the responsibility of relieving against the harm when it does in fact occur.” Id.

The factors for a court to consider in determining whether an activity is abnormally dangerous are listed in § 520 of the Restatement as: “(a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes.” 3 Restatement (Second), Torts § 520.

The plaintiff asserts that § 520 requires this court to conclude that the manufacturing of explosives is an abnormally dangerous activity requiring the defendant to be strictly liable for any injuries stemming from its business. It is important to note that comment (f) of § 520 clearly states that all of the factors need not be present for an activity to be considered abnormally dangerous. Comment (f) to § 520 provides: “In determining whether the danger is abnormal, the factors listed in Clauses (a) to (f) of this Section are all to be considered, and are all of importance. Any one of them is not necessarily sufficient of itself in a particular case, and ordinarily several of them will be required for strict liability. On the other hand it is not necessary that each of them be present, especially if others weigh heavily. ” (Emphasis added.)

The first three factors all involve the degree of risk, harm and difficulty of eliminating the risk inherent in the activity. Here, the defendant’s activity, the use of a highly volatile chemical in a specially designed building located away from the defendant’s main facility, satisfied these three factors. The fourth factor, that the activity not be a matter of common usage, is also easily met. In fact, the defendant’s activity is expressly addressed in comment (i) which states that “the manufacture, storage, transportation and use of high explosives . . . are carried on by only a comparatively small number of persons and therefore are not matters of common usage.”

The fifth factor, inappropriateness of the activity to the place where it is carried on, is satisfied by the defendant’s experimentation with explosives in a residential area. The sixth factor encompasses the extent to which the activity’s value to the community is outweighed by its dangerous attributes. The record is devoid of facts to satisfy this but, as stated earlier, all six factors do not need to be satisfied in order to find that the defendant’s activity is ultrahazardous. Comment (h) provides that “[a] combination of the factors stated in clauses (a), (b) and (c), or sometimes any of them alone, is commonly expressed by saying the activity is‘ultrahazardous’or‘extra hazardous. . . .’”

In light of our review of the six factors required by § 520 and our conclusion that five of these factors were satisfied by the defendant’s research activity, we conclude that the defendant is strictly liable for any damage caused by the explosion. Therefore, it was plain error for the trial court to grant the defendant’s motion for a directed verdict on count one on the basis that the doctrine of strict liability did not apply.

B

PROXIMATE CAUSE

We next turn to the question of whether the plaintiff failed to present adequate evidence that the expíosion was the proximate cause of his injuries. When the causation issue involved goes beyond the field of ordinary knowledge and experience of judges and jurors, expert testimony is required. See Franchey v. Hannes, 155 Conn. 663, 666, 237 A.2d 364 (1967); C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 7.16.5. Relying on this rule, the defendant argues that whether an explosion occurring at or above the surface of the earth can create a seismic wave capable of throwing a man nearly a mile away out of bed is an issue well beyond the knowledge of the ordinary layman and thus requires expert testimony.

In an effort to prove this theory of causation, the plaintiff offered Wayne Edsall as an expert witness. In an especially thorough hearing that lasted a day and a half, the court examined Edsall’s qualifications. The evidence showed that Edsall was on the faculty of the United States Naval Academy and had extensive experience with explosives. His qualifications included a Bachelor’s Degree in Geology with study in chemical engineering, a Master’s Degree in Earth Geology, a Ph.D. in Marine Geology with doctoral work related to the Earth Geology, membership in the Geological Society of America and the American Geophysical Union, certification as a professional geologist by the American Association of Professional Geologists, work with the United States Navy since 1963 and at the Naval Academy since 1969, work for the United States Department of Energy in the Johns Hopkins University applied physics laboratory, seismic activity studies for Alpine Geophysical Associates and the United States Geological Study. Since 1971, he has done independent consulting on the effect of physical forces as generated by explosive devices and has held advisory positions to the government on geological issues.

The court refused to qualify Edsall as an expert on the ground that his experience in oceanic seismography and seismic waves initiated by underground explosions did not make him competent to testify as an expert on the effects of an above ground explosion on dry land. The court was effectively requiring that the proposed expert have experience with the exact problem before the court. This goes beyond the standard for admitting expert testimony. “ ‘The true test of the admissibility of such testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter, but it 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 jury in determining the questions at issue.’ ” Jaffe v. State Department of Health, 135 Conn. 339, 348, 64 A.2d 330 (1949), quoting Taylor v. Town of Monroe, 43 Conn. 36, 44 (1875); see C. Tait & J. LaPlante, supra, § 7.16.1. Edsall unquestionably possessed “peculiar knowledge or experience, not common to the world” in the field of explosives and resulting seismic effects which could have assisted the jury. “ ‘The underlying principle is that if any reasonable qualifications can be established, the objection goes to the weight rather than to the admissibility of the evidence.’ ” Sanderson v. Bob’s Coaster Corporation, 133 Conn. 677, 682, 54 A.2d 270 (1947), quoting Wray v. Fairfield Amusement Co., 126 Conn. 221, 224, 10 A.2d 600 (1940); 2 Wigmore, Evidence (3d Ed.) § 561. It was plain error for the trial court to refuse to qualify Edsall as an expert thereby preventing the plaintiff from establishing a causal link between his injuries and the acts of the defendant.

Ill

Nuisance Count

The plaintiff next argues that the court committed plain error when it concluded that the plaintiff’s activity did not constitute an absolute nuisance and directed a verdict in the defendant’s favor on the second count. To succeed in a nuisance action, a plaintiff must establish four elements: “(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the defendant’s land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiff’s injuries and damages.” Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35-36, 404 A.2d 889 (1978).

Claims of nuisance fall into two discrete categories: (1) absolute nuisance and (2) negligent nuisance. The principal distinction between the two is that an absolute nuisance has the added requirement that the conduct be intentional. Monick v. Greenwich, 144 Conn. 608, 611, 136 A.2d 501 (1957). “ ‘Intentional,’ in this context, means ‘not that a wrong or the existence of a nuisance was intended, but that the creator of [it] intended to bring about the conditions which are in fact found to be a nuisance.’ ” Dingwell v. Litchfield, 4 Conn. App. 621, 624, 496 A.2d 213 (1985), quoting Beckwith v. Stratford, 129 Conn. 506, 510-11, 29 A.2d 775 (1942).

Applied to the present case, the plaintiff was required to demonstrate that the defendant intended to bring about conditions that resulted in the explosion. The last thing in the world that the now deceased agents of the defendant wanted was to create conditions that would result in an explosion and consequently their deaths. The plaintiff claims that the explosion, not the research or manufacturing of explosives, constituted an absolute nuisance. Additionally, the plaintiff’s brief does not argue the missing element of intent. Because the lack of intent to create an absolute nuisance is dispositive of the plaintiff’s claim on this count, we do not reach the issue of whether there was evidence tending to prove the other elements of absolute nuisance.

In view of the absence of evidence that the defendant intended to create to the conditions that brought about the explosion, we conclude that the trial court did not commit plain error by directing a verdict in favor of the defendant on the nuisance count.

IV

Negligence Count

We next consider whether the trial court improperly directed a verdict for the defendant on the negligence count. It is axiomatic that a plaintiff must establish a causal relation between the defendant’s negligence and his injuries. Shelnitz v. Greenberg, 200 Conn. 58, 66, 509 A.2d 1023 (1986). In our previous discussion of causation in the strict liability portion of this opinion, we held that refusal to qualify Edsall was plain error. That analysis also pertains to the negligence count. The verdict should not have been directed on this count.

V

Other Claims

We do not reach the issues relating to evidentiary rulings and refusal of the trial court to permit an amendment of the complaint because they do not qualify for review under the plain error rule.

The judgment is affirmed on the second count and reversed on the first and third counts, and the case is remanded for a new trial on the first and third counts.

In this opinion the other judges concurred.

       “[Practice Book] Sec. 4185. errors CONSIDERED
      “The supreme court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The supreme court may in the interest of justice notice plain error not brought to the attention of the trial court.
      “In jury trials, where there is a motion, argument, or offer of proof or evidence in the absence of the jury, whether during trial or before, pertaining to an issue that later arises in the presence of the jury, and counsel has fully complied with the requirements for preserving any objection or exception to the judge’s adverse ruling thereon in the absence of the jury, the matter shall be deemed to be distinctly raised at the trial for purposes of this rule without a further objection or exception provided that the grounds for such objection or exception, and the ruling thereon as previously articulated, remain the same.”

       See, e.g., Colton v. Onderdonk, 69 Cal. 155, 10 P. 395 (1886); McKenna, v. Pacific Electric Railway Co., 104 Cal. App. 538, 286 P. 445 (1930); Fitzsimons & Connell Co. v. Braun, 199 Ill. 390, 65 N.E. 249 (1902); Watson v. Mississippi River Power Co., 174 Iowa 23, 156 N.W. 188 (1916); French v. Center Creek Powder Mfg. Co., 173 Mo. App. 220, 158 S.W. 723 (1913);
        Longtin v. Persell, 30 Mont. 306, 76 P. 699 (1904); Louden v. City of Cincinnati, 90 Ohio St. 144, 106 N.E. 970 (1914); Bradford Glycerine Co. v. St. Mary’s Woolen Mfg. Co., 60 Ohio St. 560, 54 N.E. 528 (1899); Hickey v. McCabe & Bihler, 30 R.I. 346, 75 A. 404 (1910); Feinberg v. Wisconsin Granite Co., 54 S.D. 643, 224 N.W. 184 (1929); Schade Brewing Co. v. Chicago, M. & St. P. Ry. Co., 79 Wash. 651, 140 P. 897 (1914); Patrick v. Smith, 75 Wash. 407, 134 P. 1076 (1913).

       In King v. New Haven Trap Rock Co., 146 Conn. 482, 483, 152 A.2d 303 (1959), the court held that expert testimony is not required to prove causation in a blasting case but it does not bar a plaintiff from using such testimony to establish causation.

       Actions against public authorities include a third category resulting from conduct of a public authority which is in violation of a statute. See Dingwell v. Litchfield, 4 Conn. App. 621, 624, 496 A.2d 213 (1985).


author: Landau, J.

text:
    Bruce A. Bouley et al. v. City of Norwich et al.
    (9046)
    Dupont, C. J., Spallone and Landau, Js.
    Argued December 11, 1990
    decision released July 30, 1991

      Donald R. Beebe, with whom were David O’Dea and, on the brief, Christopher J. Walsh, for the appellants (plaintiffs).

      Marc Mandell, assistant corporation counsel, with whom, on the brief, was Ralph Bergman, assistant corporation counsel, for the appellees (defendants).

      Kerin Margaret Woods and William F. Gallagher filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.
   Landau, J.

The plaintiff appeals from the trial court’s granting of the defendant’s motion for summary judgment. We hold that although there was no material fact in issue, the defendant was not entitled to judgment as a matter of law, and, therefore, the court’s judgment must be reversed.

The plaintiff was a police officer employed by the defendant. He was injured in the course of his employment when the police car he was operating was involved in a collision with another car. He received workers’ compensation benefits and $20,000 from the other driver’s insurance carrier, which was the limit of the policy. The plaintiff’s economic and medical damages allegedly exceeded $20,000. Claiming that the compensable value of his injuries exceeded the amount of coverage available from the other driver’s insurance policy, the plaintiff sought the monetary difference between the two amounts from the defendant, as underinsured motorist benefits. The defendant was self-insured for automobile liability coverage.

The issue to be decided is whether the defendant is obligated to provide uninsured or underinsured motorist benefits, as well as workers’ compensation benefits, to an employee injured during the course of his employment notwithstanding General Statutes § 31-284. Section 31-284 provides that the Workers’ Compensation Act is the exclusive remedy for claims of an employee against an employer, except if the employee has secured additional benefits by agreement with the employer. The plaintiff claims that he is entitled to uninsured motorist coverage pursuant to General Statutes § 38a-336 (a) (2) (formerly § 38-175c [a] [2]), the uninsured motorist statute. The defendant argues that it is exempt from paying the plaintiff underinsured motorist benefits, not because it is a self-insurer but because the plaintiff has received workers’ compensation benefits as a result of the accident, which is the exclusive source of his benefits from the defendant, except as otherwise agreed. The defendant argues that any conflict between the uninsured motorist benefits coverage and the Workers’ Compensation Act must be resolved in favor of the exclusivity provision of the latter. The defendant also claims that police patrol cars are not within the statutory category of vehicles that must have uninsured motorist coverage and that, therefore, the plaintiff is not entitled to compensation beyond his workers’ compensation benefits.

We addressed the same issue in Ross v. New Haven, 19 Conn. App. 169, 561 A.2d 457, cert. granted, 212 Conn. 814, 565 A.2d 536 (1989). In Ross, we held that the exclusive remedy provision of General Statutes § 31-284 bars an employee from seeking uninsured motorist benefits from his self-insured employer after having already received workers’ compensation benefits, in the absence of an agreement with the employer for additional benefits. We conclude that Ross has been effectively overruled by Wilson v. Security Ins. Co., 213 Conn. 532, 569 A.2d 40, cert. denied, U.S. , 111 S. Ct. 52, 112 L. Ed. 2d 28 (1990).

We further conclude that a self-insured entity, in its capacity as an employer, is required to provide workers’ compensation benefits, and, as an insurer, is required to provide uninsured motorist benefits. An employee’s receipt of workers’ compensation benefits from a self-insured employer does not, therefore, preclude his right to receive uninsured motorist benefits.

A review of the purposes and policies underlying workers’ compensation benefits and uninsured motorist benefits indicates that they exist for separate and distinct reasons.

“ ‘The purpose of the workmen’s compensation statute is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer.’ Jett v. Dunlap, 179 Conn. 215, 217, 425 A.2d 1263 (1979). The Workers’ Compensation Act ‘compromise[s] an employee’s right to a common law tort action for work related injuries in return for relatively quick and certain compensation.’ Mingachos v. CBS, Inc., 196 Conn. 91, 97, 491 A.2d 368 (1985); see also 81 Am. Jur. 2d, Workmen’s Compensation § 2 (1976); 2A A. Larson [Workmen’s Compensation Law (1983)] § 72.61, p. 14-228.49; A. Larson, ‘The Nature and Origins of Workmen’s Compensation,’ 37 Cornell L.Q. 206 (1952).” (Emphasis added.) Panaro v. Electrolux Corporation, 208 Conn. 589, 598-99, 545 A.2d 1086 (1988). It is undisputed that the Workers’ Compensation Act, General Statutes § 31-275 et seq., is the exclusive remedy for injuries sustained by an employee “arising out of and in the course of his employment.” Except as provided by statute, all rights and claims between employers and employees, or their representatives or dependents, arising out of personal injury or death sustained in the course of employment are abolished. Wesson v. Milford, 5 Conn. App. 369, 372, 498 A.2d 505, cert. denied, 197 Conn. 817, 500 A.2d 1337 (1985), citing Velardi v. Ryder Truck Rental Inc., 178 Conn. 371, 375, 423 A.2d 77 (1979); see also Sgueglia v. Milne Construction Co., 212 Conn. 427, 433, 562 A.2d 505 (1989).

As with all insurance policies, an uninsured motorist policy “is a contract and the risks covered by the policy are determined by the intention of the parties as manifested in the contract.” (Emphasis added.) Ryiz v. Federal Ins. Co., 5 Conn. App. 179, 182, 497 A.2d 1001 (1985). Uninsured motorist insurance covers the insured who is injured by an uninsured motorist. Every residual automobile liability policy must provide uninsured motorist coverage pursuant to General Statutes § 38a-336. General Statutes § 38a-370 (b) (formerly § 38-326 [b]). The purpose of this insurance is to give the injured party the same protection as if he had been injured by an insured motorist. Harvey v. Travelers Indemnity Co., 188 Conn. 245, 249, 449 A.2d 157 (1982); 7 Am. Jur. 2d § 293. Under such a policy, an insurer pays the insured the amount that he is legally entitled to recover from the uninsured motorist. General Statutes § 38a-336; Regs., Conn. State Agencies § 38-175a-6 (a); Harvey v. Travelers Indemnity Co., supra, 247.

General Statutes (Rev. to 1985) § 38-327 (c) (1) (now § 38a-371) permits self-insurance provided a self-insurer files a form to continue to undertake “to pay basic reparations benefits and the liabilities covered by residual liability insurance and to perform all other obligations imposed by this chapter. . . .” Section § 38a-370 (b) provides that “[rjesidual liability insurance shall afford coverage which satisfies the requirements of sections 38a-334 to 38a-336, 38a-338, and 38a-340 to 38a-343, inclusive.” Section 38a-336 requires that automobile liability insurance policies must provide uninsured motorist coverage. Accordingly, self-insurers are required to provide uninsured motorist coverage.

Except for the fact that the defendant is self-insured, the facts in Wilson v. Security Ins. Co., supra, are identical to the facts in the case before us. Wilson involved a Woodbridge police officer who was injured by a hit and run driver while on duty. The defendant insurance company had in force a business automobile liability policy insuring vehicles owned by the town of Wood-bridge. Id., 533-34. Although the principal issue involved whether the uninsured motorist coverage could be stacked, on cross appeal the plaintiff raised the issue of the relationship between uninsured motorist benefits and workers’ compensation benefits. Id., 533, 536.

In his cross appeal, the plaintiff argued that his damages were for pain, suffering, disability, and loss of earning capacity, none of which is recoverable under the workers’ compensation laws. He, therefore, asserted that his damages had not been paid and, thus, no reduction in uninsured motorist coverage was required under § 38-175a-6 (d) of the Regulations of Connecticut State Agencies. Wilson v. Security Ins. Co., supra, 537. Because the court found that § 38-175a-6 (d) did not quantify the kinds of damages that must be paid before a reduction could occur, it concluded that “[i]f damages are paid pursuant to the workers’ compensation law, the uninsured motorist coverage may be reduced accordingly. General Statutes § [38a-336] contains no mandate that uninsured motorist coverage benefits may not be reduced.” Id., 538. Therefore, the amount received under uninsured motorist coverage may be reduced by the amount paid or payable under workers’ compensation. Thus, the receipt of workers’ compensation benefits does not preclude the receipt of uninsured motorist benefits.

The defendant acknowledged in its brief that “[i]t seems clear from the Connecticut General Statutes that self-insurers, like the City, are required to provide uninsured motorist benefits. As is asserted by the appellant, Conn. General Statute Section [38a-370 (b)] unambiguously requires that residual liability insurance satisfy the requirements of Section [38a-334] et seq, which includes provisions concerning uninsured motorist coverage. However a police patrol car does not fall within the statutory category of vehicles which require uninsured motorist coverage pursuant to Section [38a-334], [38a-363 (g)] and 14-1 of the Connecticut General Statutes.”

In Christy v. Newark, 102 N. J. 598, 510 A.2d 22 (N. J. 1986), a police officer was injured when a hit and run vehicle struck his police car, and he sought uninsured motorist benefits from his employer, a self-insured municipality, in addition to his workers’ compensation benefits. The New Jersey Supreme Court concluded that a self-insured municipality was obligated by statute to provide uninsured motorist benefits and that the employee’s receipt of workers’ compensation benefits from the municipality did not preclude receipt of uninsured motorist benefits. The court reached this conclusion by distinguishing between an action in tort and an action in contract. In reaching its conclusion, the Christy court noted that the purpose of workers’ compensation in New Jersey is to prohibit an employee from suing an employer in negligence and that suits against third party tortfeasors are preserved. Id., 609. Of particular import was the fact that recovery from a third party does not result in double recovery for the same injury because the employer is entitled to a credit or reimbursement for damages paid to the employee. Id., 609-10. The Christy court also specifically determined that the claim for uninsured motorist benefits arises out of a contract created by the statutory obligation to furnish such benefits. Id.

In Heavens v. Laclede Gas Co., 755 S.W.2d 331 (Mo. App. 1988) the Missouri Court of Appeals concluded that a self-insured employer is required by statute to provide uninsured motorist coverage to an employee injured by an uninsured motorist in the course of employment. Id., 332. The court distinguished between the defendant as employer and the defendant as insurer and specifically noted that had the defendant purchased insurance rather than self-insuring, the insurer would have paid the employee under the uninsured motorist provision of the policy. Id. The court, therefore, focused on whether a self-insurer is statutorily required to provide uninsured motorist benefits. Answering this question affirmatively, the court commented that it would be “unconscionable to allow an employer to totally avoid providing employees with uninsured motorist coverage by choosing to be self-insured.” Id., 333.

Similarly, the purpose of the worker’s compensation law in this state is to provide the exclusive tort remedy for an employee against an employer. See Panaro v. Electrolux Corporation, supra, 599; Mingachos v. CBS, Inc., supra. Just as the Missouri court found in Heavens, self-insurers in Connecticut are statutorily required to provide uninsured motorist coverage pursuant to General Statutes §§ 38a-371 (formerly 38-327) and 38a-370 (b). As the New Jersey court found in Christy, our laws permit Connecticut employers “having paid, or having become obligated to pay, compensation” to bring an action against a third party, with a legal liability to pay damages for an employee’s injury, to recover any amount paid or which it has become obligated to pay. General Statutes § 31-293; Enquist v. General Datacom, 218 Conn. 19, 22-23, 587 A.2d 1029 (1991); Skitromo v. Meriden Yellow Cab Co., 204 Conn. 485, 488, 528 A.2d 826 (1987). In addition, our Supreme Court in Wilson has recently affirmed the legality of the reduction to uninsured motorist benefits by the amount paid or payable under workers’ compensation pursuant to § 38-175a-6 (d) of the Regulations of Connecticut State Agencies. In doing so, the court has recognized the legality of an employee’s receipt of both workers’ compensation benefits and uninsured motorist benefits. Thus, a self-insured employer is required to provide workers’ compensation benefits and uninsured motorist coverage. Therefore, an injured employee of a self-insured employer is entitled to receive the same benefits as an employee of an employer that is not self-insured.

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

       The defendants are the city of Norwich police department and the municipality of Norwich. The wife of Bruce Bouley, Donna E. Bouley, is also a plaintiff and seeks damages for loss of consortium. As used in this decision, defendant refers to the city and plaintiff to the named plaintiff.

       General Statutes § 31-284 provides in pertinent part: “(a) 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 .... All rights and claims between employer and employees . . . arising out of personal injury . . . sustained in the course of employment . .. 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.”

       In a recent unpublished case, Williams v. Hertz Corporation, Docket No. 87-757 (D.D.C. Jan. 12,1989), the court held that a self-insured owner of vehicles must provide the same uninsured-underinsured motorist coverage as an owner who has purchased coverage from an insurance company. The case, however, does not involve an employer and employee.

       This claim was not raised in the trial court and is not claimed as an alternate ground for upholding the trial court’s judgment. We, therefore, do not consider it.

       After the Supreme Court granted the plaintiff’s petition for certification, the appeal was withdrawn.

       The court granted summary judgment in the present case on March 26, 1990, less than two months after the publication of Wilson v. Security Ins. Co., 213 Conn. 532, 569 A.2d 40 (1990). Neither party cited it to the trial court, and neither party cites it in their briefs to this court. The amicus curiae brief of the Connecticut Trial Lawyers’ Association does, however, cite Wilson.

       General Statutes § 38a-370 provides: “residual liability insurance. (a) Under residual liability insurance the insurer is liable to pay, on behalf of the owner or other persons insured, sums which the owner or insured is legally obligated to pay as damages because of bodily injury and property damage arising out of the ownership, maintenance or use of a private passenger motor vehicle as a motor vehicle if the injury or damage occurs within the United States of America, its territories or possessions or Canada.
      “(b) Residual liability insurance shall afford coverage which satisfies the requirements of sections 38a-334 to 38a-336, 38a-338, and 38a-340 to 38a-343, inclusive.”
      General Statutes § 38a-336 provides: “uninsured motorist coverage. (a) (1) Each automobile liability insurance policy shall provide insurance, herein called uninsured motorist coverage, in accordance with the regulations adopted pursuant to section 38a-334, with limits for bodily injury or death not less than those specified in subsection (a) of section 14-112, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles and underinsured motor vehicles and insured motor vehicles, the insurer of which becomes insolvent prior to payment of such damages, because of bodily injury, including death resulting therefrom. Each insurer licensed to write automobile liability insurance in this state shall provide uninsured motorists coverage with limits requested by the named insured upon payment of the appropriate premium, but the insurer shall not be required to provide such coverage with limits in excess of the limits of the bodily injury coverage of the policy issued to the named insured. No insurer shall be required to provide uninsured motorist coverage to (A) a named insured or relatives residing in his household when occupying, or struck as a pedestrian by, an uninsured or underinsured motor vehicle or a motorcycle that is owned by the named insured, or (B) to any insured occupying an uninsured or underinsured motor vehicle or motorcycle that is owned by such insured.
      “(2) Notwithstanding any provision of this section to the contrary, each automobile liability insurance policy issued or renewed on and after July 1, 1984, shall provide uninsured motorist coverage with limits for bodily injury and death equal to those purchased to protect against loss resulting from the liability imposed by law unless the insured requests in writing a lesser amount, but not less than the limits specified in subsection (a) of section 14-112. Such written request shall apply to all subsequent renewals of coverage and to all policies or endorsements which extend, change, supersede or replace an existing policy issued to the named insured, unless changed in writing by the insured.
      “(b) An insurance company shall be obligated to make payment to its insured up to the limits of the policy’s uninsured motorist coverage after the limits of liability under all bodily injury liability bonds or insurance policies applicable at the time of the accident have been exhausted by payment of judgments or settlements, but in no event shall the total amount of recovery from all policies, including any amount recovered under the insured’s uninsured motorist coverage, exceed the limits of the insured’s uninsured motorist coverage.
      “(c) Each automobile liability insurance policy issued on or after October 1,1971, which contains a provision for binding arbitration shall include a provision for final determination of insurance coverage in such arbitration proceeding. With respect to any claim submitted to arbitration on or after October 1,1983, the arbitration proceeding shall be conducted by a single arbitrator if the amount in demand is forty thousand dollars or less or by a panel of three arbitrators if the amount in demand is more than forty thousand dollars.”
      “(d) For the purposes of this section, an ‘underinsured motor vehicle’ means a motor vehicle with respect to which the sum of the limits of liability under all bodily injury liability bonds and insurance policies applicable at the time of the accident is less than the applicable limits of liability under the uninsured motorist portion of the policy against which claim is made under subsection (b) of this section.”

       Section 38-175a-6 of the Regulations of Connecticut State Agencies provides in pertinent part: “minimum provision for protection against uninsured motorists, (a) coverage. The insurer shall undertake to pay on behalf of the insured all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured caused by an accident involving the uninsured motor vehicle. This coverage shall insure the occupants of every motor vehicle to which the bodily injury liability coverage applies. ‘Uninsured motor vehicle’ includes a motor vehicle insured against liability by an insurer that is or becomes insolvent.”

       Section 38-175a-6 (d) of the Regulations of Connecticut State Agencies provides: “LIMITS OF liability. The limit of the insurer’s liability may not be less than the applicable limits for bodily injury liability specified in subsection (a) of section 14-112 of the general statutes, except that the policy may provide for the reduction of limits to the extent that damages have been
      “(1) paid by or on behalf of any person responsible for the injury,
      “(2) paid or are payable under any workers’ compensation or disability benefits law, or
      “(3) paid under the policy in settlement of a liability claim. The policy may also provide that any direct indemnity for medical expense paid or payable under the policy or any amount of any basic reparations benefits paid or payable under the policy will reduce the damages which the insured may recover under this coverage and any payment under these coverages shall reduce the company’s obligation under the bodily injury liability coverage to the extent of the payment.”