author: Dupont, C. J.

text:
    Maria Gajewski et al. v. Arthur Pavelo et al.
    (11404)
    Dupont, C. J., and Foti and Lavery, Js.

      Argued September 13
    decision released December 22, 1994

      Richard A. Fuchs, with whom, on the brief, was Rosalind J. Koskoff, for the appellants (plaintiffs).

      Arthur C. Laske III, assistant city attorney, with whom, on the brief was Barbara Brazzel-Massaro, associate city attorney, for the appellees (defendant city of Bridgeport et al.).

      James E. Coyne, with whom, on the brief, was Colleen D. Fries, for the appellee (defendant Utica Radiator Corporation).
   Dupont, C. J.

This matter is currently before us on remand from our Supreme Court. Gajewski v. Pavelo, 229 Conn. 829, 643 A.2d 1276 (1994). When we first heard this case, we applied the general verdict rule and affirmed a judgment for the defendants that followed the denial of the plaintiffs’ motion to set aside the jury verdict. Gajewski v. Pavelo, 32 Conn. App. 373, 629 A.2d 465 (1993), rev’d, 229 Conn. 829, 643 A.2d 1276 (1994). Our judgment was reversed because we should not have applied the general verdict rule. We, therefore, must now reach the plaintiffs’ claims of instructional error not addressed in our initial decision.

The facts necessary to the resolution of this appeal were set forth in our earlier decision. “The plaintiffs’ amended complaint consisted of ten counts, essentially involving three causes of action, a product liability claim against Utica Radiator Corporation (Utica) arising out of its manufacture of a gas fired boiler, a negligence claim against two employees of the city of Bridgeport, Joseph Savino and Guido Yagnini, for failure to inspect or to make reasonable efforts to inspect the installation of the boiler, and an indemnification claim against the city of Bridgeport pursuant to General Statutes § 7-465. Utica denied that its gas fired boiler filled the Gajewski residence with dangerous and toxic levels of carbon monoxide that allegedly caused serious, painful and permanent injuries to the plaintiffs. Utica also denied that it introduced its boilers into the stream of commerce, that its products were expected to reach consumers without substantial change, and that one of its boilers had reached the plaintiffs’ household without substantial change. Utica denied that its boiler was a defective and unreasonably dangerous product and also denied that it had failed to provide proper instructions for installation, had failed to warn the plaintiffs adequately of various dangers arising from use of the boiler and had failed to design a safe product. Further, Utica denied that the plaintiffs’ injuries were proximately caused by its allegedly defective gas boiler. Utica’s answer also raised two special defenses, one claiming that any injuries sustained by the plaintiffs were caused by their own negligence and carelessness, and the other claiming that the amount of any verdict against Utica should be reduced by any amounts paid or agreed to be paid by any present or prior defendants to the action. Utica filed a cross claim against the Southern Connecticut Gas Company and the city of Bridgeport for indemnification and filed a cross claim against all the codefendants for contribution pursuant to General Statutes § 52-572o. Southern Connecticut Gas Company denied all cross claims by Utica.

“The plaintiffs’ negligence claim against the two city employees was based on the failure to inspect, to make provisions to inspect, to warn and to establish standards for inspection. The plaintiffs alleged that, as a result of the city employees’ negligence and carelessness, the plaintiffs sustained their injuries. The individual defendants and the city denied all allegations of negligence and denied that any failure to act was the proximate cause of the plaintiffs’ injuries. The individual defendants and the city of Bridgeport also raised four special defenses. The defenses claimed were sovereign immunity, contributory negligence, immunity provided by General Statutes § 52-557n, and that any verdict against them should be reduced by any amounts paid by Southern Connecticut Gas Company and Arthur Pavelo, the installer of the boiler. They also filed a counterclaim against Jan Gajewski for indemnification claiming that he was primarily liable for the plaintiffs’ injuries because he failed to clean his chimney when advised to do so, replaced a door to the furnace room when advised not to do so and failed to respond to notices calling for inspection of the furnace.

“The jury heard evidence that in the fall of 1981 the plaintiffs had a gas fired boiler manufactured by Utica installed in their residence by Pavelo. The plaintiffs had previously used an oil fired boiler, which generated a buildup of soot in the chimney flue. At the time of installation, Pavelo, a licensed plumber, cleaned the chimney sufficiently to render the furnace operational. The plaintiffs were advised by Pavelo, prior to the installation of the boiler, of the necessity of having the chimney thoroughly cleaned but were never directly warned of the necessity by Utica.

“On January 9,1982, Maria was found unconscious in her home. Her husband, Jan, and adult son, Janusz, were found semiconscious. They were diagnosed as having carbon monoxide poisoning. The poisonous gases resulted from a buildup of soot in the chimney flue. This buildup prevented proper ventilation of the boiler. At no time prior to January 9, 1982, was the installation of the boiler inspected by the employees of the city of Bridgeport or the gas company, although they had attempted to make appointments for inspection with the plaintiffs. Jan and Janusz substantially recovered from the poisoning. Maria suffered permanent total disability of her nervous system manifested as cognitive impairment and difficulty with speech, coordination and gait. She also experiences bouts of depression due to her condition.” Gajewski v. Pavelo, supra, 32 Conn. App. 375-78.

“The jury returned a handwritten verdict that read: ‘We, the jury, based upon the evidence presented to us, unanimously agree that all claims against the defendants: The Utica Radiator Corp., The City of Bridgeport et al., and Southern New England Gas Co. are inconclusive. We, therefore, find them not liable for the injuries sustained in the suit brought by the Gajewski family.’ The trial court accepted the verdict and rendered judgment ‘in favor of Utica Radiator Corporation, the city of Bridgeport, Joseph Savino, Guido Vagnini, and Southern Connecticut Gas Company, and that the plaintiffs recover no damages of said defendants.’ ” Id., 378-79. The plaintiffs moved on December 2,1991, to set aside the verdict as being contrary to law and against the evidence. The plaintiffs subsequently, on February 25, 1992, supplemented their motion to set aside the verdict. The motion to set aside the verdict was denied. The trial court’s refusal to set aside the verdict is entitled to great weight in our assessment of the plaintiffs’ claims. Norrie v. Heil Co., 203 Conn. 594, 606, 525 A.2d 1332 (1987).

The essence of the three claims raised by the plaintiffs on appeal concerns the propriety of the jury instructions as to the defendants Utica, the city of Bridgeport and the city’s employees. The claims on appeal are virtually identical to those raised in the plaintiffs’ supplementary motion to set aside the verdict. The plaintiffs claim that the jury instructions were so contradictory and inconsistent that the jury was left to decide not only the facts of the case but what law to apply. The defendants argue that, viewed as a whole, if there were any inconsistencies in the charge, they were neither harmful nor prejudicial. We agree with the defendants.

To require reversal, any error committed by the trial court in charging the jury must be harmful. Logan v. Greenwich Hospital Assn., 191 Conn. 282, 295, 465 A.2d 294 (1983); see also Bell v. Bihary, 168 Conn. 269, 273, 362 A.2d 963 (1975). To be harmful, an error must be so fundamental and material that it may work an injustice. West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 318, 541 A.2d 858 (1988); Bell v. Bihary, supra, 273, citing Mei v. Alterman Transport Lines, Inc., 159 Conn. 307, 316, 268 A.2d 639 (1970). Contradictory instructions that force a jury to decide a material question of law in either one of two inconsistent ways are impermissible. Bell v. Bihary, supra, 273, citing Connors v. Connolly, 86 Conn. 641, 650, 86 A. 600 (1913); W. Maltbie, Connecticut Appellate Procedure (2d Ed. 1957) §§ 76, 87, 91, 92. Flatly inconsistent statements in close proximity to one another, without any attempted clarification or correction will likely cause a jury to be misled and will result in reversal. Alaimo v. Royer, 188 Conn. 36, 40, 448 A.2d 207 (1982).

A charge, however, is to be read as a whole without the dissection of its parts. It will not be the source of reversible error absent a determination that the probable effect of the charge was to lead the jury to an incorrect verdict. Norrie v. Heil Co., supra, 203 Conn. 606; Tripp v. Anderson, 1 Conn. App. 433, 435-36, 472 A.2d 804 (1984). The charge must be examined to determine whether it fairly presents a case to a jury so that no injustice results and is not to be examined “with a legal microscope, to search for technical flaws, inexact, inadvertent or contradictory statements.” (Internal quotation marks omitted.) Tripp v. Anderson, supra, 436, citing Ubysz v. DiPietro, 185 Conn. 47, 57, 440 A.2d 830 (1981). Bearing these axioms in mind, we will now consider the plaintiffs’ claims.

The plaintiffs argue that the trial court first gave the plaintiffs’ requests to charge and then gave the defendants’ requests to charge. They argue throughout their brief that their requests to charge were correct on the law, but that the defendants’ requests to charge were incorrect statements of the law, and that this inconsistency must have misled the jury.

I

The Charge as to Product Liability

We first address the plaintiffs’ contention that the charge was inaccurate and confusing as to the product liability claim. The plaintiffs argue that the trial court’s instructions concerning the manufacturer’s duty to warn under General Statutes § 52-572q were contradictory in that the jury was first instructed to use the statutory standard for a breach of the duty to warn in order to be liable in a product liability case, and was then instructed on a common law “reasonableness” standard of a duty to warn. According to the plaintiffs, the trial court initially properly instructed the jury that it must determine whether warnings were required, and, if they were required, whether they were adequate, by considering the likelihood of the harm the plaintiffs suffered, the defendant Utica’s ability to anticipate and appreciate the risk of such harm, and, finally, the technological feasibility and cost of warnings and instructions. This was the plaintiffs’ requested charge, which according to the plaintiffs provides the jury with the correct strict liability standard under § 52-572q.

The plaintiffs take issue with the court’s later set of instructions in which the court told the jury to consider whether the “furnace was unreasonably dangerous” and that manufacturers are required under Connecticut law to “take reasonable steps to make the product reasonably safe under reasonable circumstances.” (Emphasis added.) The plaintiffs argue that this later instruction allowed the jury to apply common law standards of liability and negligence, in contravention of Connecticut’s strict statutory product liability scheme, and in contradiction to the earlier portion of the instructions where the trial court read the plaintiffs’ request to charge. The plaintiffs basically claim that the court was forcing the jury to decide which law to apply, the common law negligence standard or the statutory strict liability standard, rather than instructing it as to which of the two governed.

The plaintiffs are correct in their assertion that Connecticut’s present statutory scheme, General Statutes § 52-572m et seq., was intended to merge the various common law theories of products liability into one cause of action. See Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 292, 627 A.2d 1288 (1993) (summarizing the legislative history of § 52-572m et seq.). We agree that if the jury had been instructed unequivocally to use a common law negligence standard to determine whether warnings were required and, if they were required, to determine, by using a common law standard, whether they were adequate, there would be a reversible error. An examination of the instructions as a whole, however, shows no inconsistency between that portion of the charge requested by the plaintiffs and that portion that used the word reasonable. The trial court’s use of the word reasonable does not amount to a charge based on negligence standards. See Norrie v. Heil Co., supra, 203 Conn. 600. In using the word reasonable, the court clarified for the jury how to determine if warnings were required under § 52-572q, and, if required, what types of warnings would be technologically feasible. Moreover, in practical terms, there is no difference between the statutory strict liability of § 52-572q and negligence with respect to the law of warnings. Sharp v. Wyatt, Inc., 31 Conn. App. 824, 848, 627 A.2d 1347 (1993), aff’d, 230 Conn. 12, 644 A.2d 871 (1994); see also W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 99, p. 697. The portion of the instructions that used the word reasonable is therefore complementary, not contradictory, to the earlier portion.

We next examine the plaintiffs’ claims of inconsistency in the instructions as to whether Pavelo or Utica had the duty to warn and as to the role of the knowledgeable or sophisticated user doctrine. The plaintiffs correctly note in their brief that both parties took exceptions to certain portions of these instructions. The plaintiffs are incorrect, however, in asserting that by charging the jury to examine the product liability claims from different “perspectives,” the court was forcing the jury to decide who had a duty to warn. These portions of the charge demonstrate not that the trial court improperly instructed the jury, but rather that the court correctly interpreted § 52-572q. Section 52-572q leaves many issues to the trier of fact. These issues include whether there is a duty to warn, whether the manufacturer or the seller is in a better position to directly warn the ultimate user, whether the warnings were adequate, and the consideration to be given to the sophisticated user doctrine. Both this court and our Supreme Court, in Sharp v. Wyatt, Inc., supra, 230 Conn. 12, and Sharp v. Wyatt, Inc., supra, 31 Conn. App. 824, have interpreted § 52-572q as leaving those issues to the trier of fact.

At oral argument in this court, the plaintiffs insisted that under § 52-572q, the expected product user to whom the duty to warn is owed is always and only the consumer. The plaintiffs, therefore, conclude that the portion of the jury charge instructing that the duty to warn is owed to the consumer is inconsistent with the court’s later charge that any duty to warn was “to be directed to Mr. Pavelo,” the installer of the product. The plaintiffs appear to argue in their brief, however, that the entity or person to whom the duty to warn was owed may vary when they state that “in this case” the duty was to the Gajewskis. (Emphasis added.) Section 52-572q does not use the word “consumer”; it confers a cause of action on “claimants” who have been harmed by defective products and refers to “the expected product user.” Both prior to and after the enactment of § 52-572m et seq., Connecticut courts have noted that unreasonably dangerous products were those considered to be unreasonably dangerous to the consumer or user. See Sharp v. Wyatt, Inc., supra, 31 Conn. App. 833; Coe-Park Donuts, Inc. v. Robertshaw Controls Co., 1 Conn. App. 84, 86, 468 A.2d 292 (1983).

“A principal purpose of the product liability statute is to protect people from harm caused by defective and hazardous products. In order to meet this purpose, it is necessary that the statute be read to reach all conduct which affects the safety of a product prior to its entry into the stream of commerce. The terms enumerated in General Statutes § 52-572m (b) are simply generic categories of conduct which must be read broadly and in relationship to one another in order to accomplish the purposes of the statute.” (Emphasis added.) Rodia v. Tesco Corp., 11 Conn. App. 391, 396, 527 A.2d 721 (1987). While most product liability suits are brought by consumers, the plaintiffs’ assertion that only consumers may bring such primary suits because they are the only persons or entities to whom a statutory duty is owed is incorrect. See Sharp v. Wyatt, Inc., supra, 31 Conn. App. 850.

The statutory scheme is intended to protect anyone who is injured by a defective product. For example, the plaintiff in Sharp v. Wyatt, Inc., supra, 31 Conn. App. 824, was the employee of a retailer, not a consumer. The plaintiffs’ reading of § 52-572q would bar others, such as installers and store employees who are injured by defective products, from bringing suit, because by the plaintiffs’ interpretation of § 52-572q neither group includes consumers.

The plaintiffs are, therefore, not correct in arguing that the court should not have instructed the jury that Utica’s sole duty to warn or to give adequate instructions was to the installer, Pavelo. The court did instruct the jury that it was for the jury to decide '¿/'Pavelo was “the person best able to take precaution against any potential harm associated with the use of the subject product,” and if it so found, then “any duty to instruct or warn as to the precautions necessary to safeguard against the potential harm from the manufacturer is to be directed to Mr. Pavelo.” (Emphasis added.) In Sharp v. Wyatt, Inc., supra, 31 Conn. App. 849, this court noted that any warnings issued must ultimately reach “the ultimate product user.” The foregoing instruction is not that the manufacturer had a duty to warn Pavelo only, but that the jury could find that issuing a warning to Pavelo, as the installer of the product who would come into direct contact with the ultimate product user, might have been the best way for the defendant Utica to warn the ultimate product user. This is not a misstatement of the law, but a statement that conforms with § 52-572q (d), which directs that “[a] product seller may not be considered to have provided adequate warnings or instructions unless they were devised to communicate with the person best able to take or recommend precautions against the potential harm.” (Emphasis added.)

The final alleged inconsistency in the charge on product liability concerns the “sophisticated user” doctrine. Under this doctrine, when the product seller “has reason to believe that the purchaser of the product will recognize the dangers associated with the product, no warnings are mandated.” (Internal quotation marks omitted.) Sharp v. Wyatt, Inc., supra, 31 Conn. App. 847, quoting Goodbar v. Whitehead Bros., 591 F. Sup. 552, 561 (W.D. Va. 1984), aff'd, 769 F.2d 213 (4th Cir. 1985). If the product seller is aware of its purchaser’s knowledge and sophistication with respect to the product, it may choose not to issue warnings. See Sharp v. Wyatt, Inc., supra, 848.

The plaintiffs agree that the court’s initial charge, that the defendant Utica could not rely on the installer’s knowledge, was correct. The court stated that “[i]n order to adequately warn the Gajewskis, the seller had a duty to adequately warn and instruct the installer. The law is that if you determine that the seller could have anticipated that the consumer, the Gajewskis, did not know the dangers, then it was incumbent upon the seller to warn the Gajewskis by adequately warning and instructing the installer, regardless of his knowledge.” The jury could find that a duty to warn ran from the manufacturer to the installer, whether or not the installer was a sophisticated user. The court later charged that “the importance of [Pavelo’s] status as a skilled tradesperson and knowledgeable user is that under the law, even if one has the duty to warn or instruct, that manufacturer is not liable for failing to warn or instruct a party of facts that the party already knew .... [I]f Mr. Pavelo was aware of what should be done in the installation of the subject furnace, or should have been aware based upon his profession and the knowledge of his fellow employees, the defendant Utica ... is not and cannot be liable for failure to warn him of that which he already knew. The defendant Utica Radiator Corporation had no duty to warn Mr. Pavelo to clean the subject chimney at the time of installation if Mr. Pavelo, or his employees, knew or should have known that the chimney should have been cleaned prior to lighting the furnace, and knew or should have known of the consequences of failing to do so.” In other words, Utica could not be liable for a failure to warn Pavelo of dangers of which he was already aware. There is no inconsistency here.

The court correctly charged that if the jury found that Utica had a duty to warn Pavelo, but did not render such a warning, if it then also found that Pavelo was a knowledgeable user and therefore aware of the danger of installing the boiler without cleaning the chimney, then there could be no liability on the part of Utica. The Connecticut Product Liability Act; General Statutes § 52-572m et seq.; does not impose a duty to warn of known or open and obvious dangers, and, accordingly, there can be no liability for injuries resulting from open, obvious and known dangers. See Haesche v. Kissner, 229 Conn. 213, 216, 640 A.2d 108 (1994).

Taking the instructions as a whole, the court instructed the jury that if it found that Utica had a duty to warn, in considering whether Utica effectively discharged that duly or failed to discharge it, it was appropriate to consider the installer’s professional knowledge and skills. This court held in Sharp v. Wyatt, Inc., supra, 31 Conn. App. 849, that while the sophisticated user doctrine is not an affirmative defense under Connecticut’s product liability law, General Statutes § 52-572q “has incorporated the concerns underlying the sophisticated user doctrine. . . . [T]he statute puts the issue of user awareness to the trier of fact along with other factors to be weighed in the aggregate.” (Emphasis added.) The instructions appropriately explained to the jury that if it found that Utica had a duty to warn Pavelo adequately, one of the factors it should consider in determining liability was Pavelo’s expected knowledge as a professional. The instructions were entirely consistent with the holding of Sharp v. Wyatt, Inc., supra, 849, in that Connecticut law does not allow “sellers and purchasers simultaneously . . . [to] rely on one another to provide warnings with the result that none is issued to the ultimate product user.”

II

The Charge as to the Liability of the Municipal Employees

The plaintiffs also claim that the court gave inconsistent and confusing instructions on the law pertaining to the liability of municipal employees. Specifically, the plaintiffs contend that the charge was inconsistent as to the order in which the jury was to consider the issues of negligence and municipal immunity, as to the purpose of the Building Officials and Code Administrators Basic Building Code, and as to whether the standard for determining if a city official is immune in the performance of a discretionary act involving identifiable persons is objective or subjective.

The plaintiffs claim that it was improper for the court initially to tell the jury to consider whether the employees were negligent before considering the defense of sovereign immunity, and then later to reverse the order of consideration of those issues. The gist of the plaintiffs’ argument is that the order in which the jury considered those issues was crucial because, since sovereign immunity is a defense, the defendants, not the plaintiffs, had the burden of proving it. By allowing the jury first to consider whether the employees were negligent, the plaintiffs claim the trial court enlarged their burden of proof. If a trial court’s instructions do enlarge a party’s burden of proof, there may be reversible error. Goodmaster v. Houser, 225 Conn. 637, 645, 625 A.2d 1366 (1993); State v. Smith, 183 Conn. 17, 28, 438 A.2d 1165 (1981); McSwiggan v. Kaminsky, 35 Conn. App. 673, 647 A.2d 5, cert. denied, 231 Conn. 934, 649 A.2d 256 (1994). Here, however, the order in which the issues of negligence and municipal immunity were considered is irrelevant to our determination of whether the jury was correctly charged as to the defendants’ liability. Boiselle v. Rogoff, 126 Conn. 635, 641, 13 A.2d 753 (1940). The jury in the present case was not told by the court that the plaintiffs need prove, by a fair preponderance of the evidence, anything beyond negligence. In fact, the reversal of the order of consideration of the issues was beneficial to the plaintiffs. If the jury first considered and found negligence, a verdict for the plaintiffs was possible, and the jury might never have considered the sovereign immunity issue. On the other hand, if the jury had considered sovereign immunity first, and found it a bar to recovery, it would not have reached the negligence issue. The plaintiffs cannot claim error in a charge where the alleged error was beneficial to them. Frigon v. Enfield Savings & Loan Assn., 195 Conn. 82, 87, 485 A.2d 1305 (1985); Rapuana v. Oder, 181 Conn. 515, 520, 436 A.2d 21 (1980).

We have also determined that the purpose of the building code was not misstated. The plaintiffs agree with the court’s initial charge that the purpose of the code was to ensure the safety of “occupants.” Presumably, the plaintiffs agree with this portion of the charge because it instructs the jury that the city employees had a duty under the building code to inspect every boiler installation before that boiler was put into use. By not inspecting the boiler installed in the Gajewski home, that duty was breached because “the purpose of inspection was the safety of the occupants.” The plaintiffs claim that the court’s later charge that the purpose of the building code is to ensure “public safety” and to “benefit the public” is inconsistent with the charge that the purpose of the code is to benefit the occupants. The plaintiffs do not cite any case law in their brief supporting their contention that these charges were inconsistent. Presumably, their argument is that protecting the safety of the occupants is a narrower purpose than benefiting the public. Since the occupants are a segment of the population to be benefited, the charge is not inconsistent. If a duty was owed to the public, it must, of necessity, have also been owed to the occupants of the home. Under either purpose, there was a duty to the Gajewskis.

The plaintiffs’ next attack on the instructions as to the city employees is the charge on discretionary acts. In Connecticut, “ '[a] municipal employee . . . has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act. . . . The word “ministerial” “refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.” . . .’ ” (Citations omitted.) Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989). One exception to this qualified immunity permits tort actions in circumstances where there is perceptible imminent harm to identifiable persons. This exception applies to both identifiable individuals and narrowly defined identified classes of foreseeable victims. Burns v. Board of Education, 228 Conn. 640, 646, 638 A.2d 1 (1994); see also Sestito v. Groton, 178 Conn. 520, 527-28, 423 A.2d 165 (1979).

The plaintiffs argue that the court first correctly charged in accordance with Burns, but later contradicted itself. The plaintiffs claim that the court first gave the jury an “objective” standard by which to consider the exception to immunity, by stating that “even if the duties upon the city officials are discretionary, they are liable for [the] breach of these duties if that breach subjects an identifiable group to imminent harm.” The plaintiffs argue that a later portion of the charge was inconsistent because it erroneously gave a “subjective” standard by charging that “if you find that any duty the defendants may have had is discretionary, then the only exception [to immunity] would be if it was apparent to [the city employees] that their failure subjects an identifiable person to an imminent harm, that there was a specific relationship established between [the employees] and the Gajewskis.” (Emphasis added.) The plaintiffs argue that here the trial court incorrectly instructed the jury that it had to find a subjective “special relationship” between the city employees and the Gajewskis in order for there to be an exception to immunity.

The trial court’s instruction to the jury that it had to find a special relationship was not an instruction to apply a subjective standard. The instruction states a fundamental premise of tort law that before there can be liability, there must be a breach of a duty of care owed by the defendant to the plaintiff, which, in turn, requires that there be a special relationship between the plaintiff and the defendant. See W. Prosser & W. Keeton, supra, § 56. In fact, our Supreme Court, in Burns v. Board of Education, supra, 228 Conn. 646, used the special relationship language the plaintiffs complain of here in its discussion of the exception to sovereign immunity permitting tort actions where there is a foreseeable class of victims. In Bums, our Supreme Court noted that “[i]n delineating the scope of a foreseeable class of victims exception to governmental immunity, our courts have considered numerous criteria, including the imminency of any potential harm, the likelihood that harm will result from a failure to act with reasonable care, and the identifiability of the particular victim. . . . Other courts, in carving out similar exceptions to their respective doctrines of governmental immunity, have also considered whether the legislature specifically designated an identifiable subclass as the intended beneficiaries of certain acts . . . [and] whether the relationship was of a voluntary nature. . . .’’(Citations omitted; emphasis added.) Id., 647.

The plaintiffs cannot isolate certain words and phrases and claim error. The charge must be examined as a whole, and the charge as a whole is not a misstatement of the law on sovereign immunity. See McSwiggan v. Kaminsky, supra, 35 Conn. App. 681.

Ill

The Charge as to Contributory Negligence

We now turn to the plaintiffs’ challenge to the charge on contributory negligence. We have already briefly noted in our initial decision that the charges on contributory negligence and comparative negligence were not improper. Gajewski v. Pavelo, supra, 32 Conn App. 383 n.6. In arguing that these instructions were confusing, the plaintiffs do not pinpoint the alleged errors. Rather, the plaintiffs make a general argument that “different” standards were given by which to consider any contributory and comparative negligence of the parties, and that the wording of the jury’s verdict clearly demonstrates that the jury did not understand the instructions. The wording of the jury verdict was determined to mean that the jury believed that the plaintiffs had failed to meet their burden of proof, and that the jury never reached the issue of the defendants’ special defenses. Gajewski v. Pavelo, supra, 229 Conn. 837-38.

The gist of the plaintiffs’ argument appears to be that the jury had too many parties’ actions and too many parties’ claims to consider. Having examined the entire charge to the jury, we conclude that the instructions on contributory and comparative negligence, consisting of approximately twenty pages, are not confusing. We could not find any misstatement of the law. In fact, the trial court gave detailed instructions, complete with accurate hypotheticals. The plaintiffs must show more than that this was a complicated case to support their claim that the jury was confused.

We conclude that taken as a whole, the trial court’s charge was an adequate guide for the jury and that it was not reasonably possible that the jury was misled.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs, Maria Gajewski, Jan Gajewski and Janusz Gajewski, originally sued Arthur Pavelo doing business as Academy Plumbing and Heating, Utica Radiator Corporation, Joseph Savino, Guido Vagnini, the city of Bridgeport, Southern Connecticut Gas Company, and Ruud Water Heater Division of Rheem Manufacturing Company. The plaintiff Jan Gajewski also brought loss of consortium claims against Utica, Savino, Vagnini and the city of Bridgeport. The plaintiffs settled with the estate of Arthur Pavelo, Southern Connecticut Gas Company, and Ruud Water Heater Division of Rheem Manufacturing Company. We refer herein to Utica Radiator Corporation, Savino, Vagnini and the city of Bridgeport as the defendants. Although Southern New England Gas Company was not a defendant during the trial as to the GajewsMs, it was a third party defendant as to Utica in an indemnification claim and in a contribution claim as a joint tortfeasor. In that capacity, Southern New England Gas Company actively participated in the trial. It, however, is not involved in this appeal.

       The plaintiffs’ complaint alleged that the defendant Utica Radiator Corporation was liable for a defective product, the defects being its design and a failure to warn. On appeal, the sole defect at issue is the failure to warn. A product may be defective solely because a manufacturer or seller failed to warn of the product’s unreasonably dangerous propensities. See Sharp v. Wyatt, Inc., 31 Conn. App. 824, 833, 627 A.2d 1347 (1993), aff'd, 230 Conn. 12, 644 A.2d 871 (1994).

       Although Utica’s answer to the plaintiffs’ complaint contained a cross claim for contribution against “all defendants,” the installer of the furnace, Arthur Pavelo doing business as Academy Plumbing and Heating, was not specifically named as a defendant by Utica, although the other defendants were so named.

       Prior to trial, the plaintiffs made a motion to sever the cross claims and counterclaims. No action was taken on this motion. After both parties rested, the plaintiffs renewed their motion to sever and it was denied. The plaintiffs do not appeal from the denial of the motion to sever.

       The defendant Utica claims that its installation manual provided Pavelo with sufficient warning of the hazards of carbon monoxide poisoning arising from the failure to clean a chimney completely.

       “Prior to jury deliberation, all parties had agreed that verdict forms and interrogatories were necessary in this case because of its complex nature, and had essentially agreed as to their wording and content. The parties, however, had not finished preparing their interrogatories and verdict forms when the court began its charge to the jury during the late morning of November 27,1991. The court stated in its charge that it anticipated that there would be interrogatories and verdict forms by the time afternoon deliberations began. Deliberations were over, however, later that same afternoon before the interrogatories or verdict forms were available. No objection was made by the plaintiffs or the defendants to the court’s allowing the jury to deliberate without them.” Gajewski v. Pavelo, supra, 32 Conn. App. 378.

       In their supplementary motion to set aside the verdict, the plaintiffs argued that (1) “the court gave inconsistent jury instructions regarding Connecticut law on products liability, specifically with regard to the knowledge of the user and the knowledge of a third party, with regard to whom the duty to warn was owed, and with regard to the standard of liability in a failure to warn products liability action”; (2) “the court erroneously charged the learned intermediary doctrine”; (3) “the court gave inconsistent instructions with regard to the defendant City of Bridgeport’s defense of governmental immunity”; (4) “the court gave inconsistent instructions regarding the standard to determine if a public official’s act was discretionary and therefore immune”; and (5) “the jury instructions as a whole were complex and confusing and incomprehensible to the jury.”

       The plaintiffs set forth three claims in their brief: (1) that the jury charge was so confusing it provided inadequate guidance to the jury and therefore constituted reversible error; (2) that the charge included inconsistent instructions, specifically with regard to the product liability claim, in that the court erred in charging conflicting law on the duty to warn, and with regard to the law pertaining to the liability of municipal employees; and (3) that the court erred in charging law other than that provided in the governing statute on inadequate warnings with regard to the duty to warn. Our discussion of the plaintiffs’ second claim is dispositive of the third claim and we will not address it as a separate issue.

       See footnotes 7 and 8.

       General Statutes § 52-572q provides: “liability of product seller DUE TO LACK OF ADEQUATE WARNINGS OR INSTRUCTIONS, (a) A product seller may be subject to liability for harm caused to a claimant who proves by a fair preponderance of the evidence that the product was defective in that adequate warnings or instructions were not provided.
      “(b) In determining whether instructions or warnings were required and, if required, whether they were adequate, the trier of fact may consider: (1) The likelihood that the product would cause the harm suffered by the claimant; (2) the ability of the product seller to anticipate at the time of manufacture that the expected, product user would be aware of the product risk, and the nature of the potential harm; and (3) the technological feasibility and cost of warnings and instructions.
      “(c) In claims based on this section, the claimant shall prove by a fair preponderance of the evidence that if adequate warnings or instructions had been provided, the claimant would not have suffered the harm.
      “(d) A product seller may not be considered to have provided adequate warnings or instructions unless they were devised to communicate with the person best able to take or recommend precautions against the potential harm.” (Emphasis added.)

       Before the enactment of General Statutes § 52-572m et seq., complex pleading requirements required injured parties to plead their cases under the separate theories of breach of warranty, strict liability and negligence. See Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 292, 627 A.2d 1288 (1993).

       Many entities are potentially liable for harm to consumers and users caused by defective products.
      General Statutes § 52-572m provides in pertinent part: “PRODUCT liability actions, definitions. As used in this section and sections 52-240a, 52-240b, 52-572n to 52-572r, inclusive, and 52-577a:
      “(a) ‘Product seller’ means any person or entity, including a manufacturer, wholesaler, distributor or retailer who is engaged in the business of selling such products whether the sale is for resale or for use or consumption. The term ‘product seller’ also includes lessors or bailors of products who are engaged in the business of leasing or bailment of products.
      “(b) ‘Product liability claim’ includes all claims or actions brought for personal injury, death or property damage caused by the manufacture, construction, design, formula, preparation, assembly, installation, testing, warnings, instructions, marketing, packaging or labeling of any product. . . .
      “(c) ‘Claimant’ means a person asserting a product liability claim for damages incurred by the claimant or one for whom the claimant is acting in a representative capacity. . . .
      “(e) ‘Manufacturer’ includes product sellers who design, assemble, fabricate, construct, process, package or otherwise prepare a product or component part of a product prior to its sale to a user or consumer. ...” (Emphasis added.)

       Since our Supreme Court adopted our opinion in full, we refer hereafter to our opinion. Sharp v. Wyatt, Inc., supra, 230 Conn. 12.

       Utica did not file an affirmative defense based on the sophisticated user doctrine. At the time that Utica’s answer was filed, Sharp v. Wyatt, Inc., supra, 31 Conn. App. 824, which held that such a defense is not allowed to product sellers, had not been decided.

       The plaintiffs’ motion to sever all cross claims and counterclaims was denied, and no claim is made on appeal that the denial of the motion was improper. See footnote 4.

       The instructions on these issues are interspersed throughout the charge.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    James W. Lash, Administrator (Estate of Michael Lash) v. Aetna Casualty and Surety Company et al.
    (12975)
    Lavery, Heiman and Spear, Js.
    Argued December 6, 1994
    decision released January 17, 1995

      David T. Grudberg, with whom, on the brief, were Howard A. Jacobs and Steven D. Ecker, for the appellant (plaintiff).

      Philip F. von Kuhn, for the appellee (named defendant).

      Thomas J. Flanagan, with whom, on the brief, was Terence A. Zemetis, for the appellee (defendant Allstate Insurance Company).

      Ruth Beardsley, for the appellee (defendant Hartford Casualty Insurance Company).

      Frank J. Forgione, for the appellee (defendant Liberty Mutual Insurance Company).
   Per Curiam.

The plaintiff appeals from the judgment of the trial court that confirmed an arbitration award in favor of the defendant insurers on the plaintiff’s underinsured motorist claim. The trial court determined that the arbitrator properly found that the plaintiff was not underinsured pursuant to General Statutes (Rev. to 1993) § 38a-336 (d). The plaintiff concedes that our Supreme Court’s decisions in Covenant Ins. Co. v. Coon, 220 Conn. 30, 594 A.2d 977 (1991), and American Motorist Ins. Co. v. Gould, 213 Conn. 625, 569 A.2d 1105 (1990), dictate this result. He, nevertheless, invites this court to review his claims that (1) Coon and Gould, were wrongly decided and (2) § 38a-336 (d), as interpreted by our Supreme Court and applied to this case, violates the equal protection clauses of the United States and Connecticut constitutions.

We cannot address the plaintiffs claims that the Coon and Gould cases were wrongly decided as we are bound by Supreme Court precedent. See Somohano v. Somohano, 29 Conn. App. 392, 615 A.2d 181 (1992).

We decline to review the plaintiff’s claim that “[§ 38a-336 (d)], as construed in Gould and Coon, is unconstitutional . . . .” Even though the equal protection claims presented here were not raised or considered in Coon and Gould, it is not our function, as an intermediate appellate court, to review whether those decisions render that statute unconstitutional. Whether to overrule a prior Supreme Court decision on grounds not raised in the argument of that case is a matter appropriately reserved for the Supreme Court. See State v. Welch, 224 Conn. 1, 5-6, 615 A.2d 505 (1992).

The judgment is affirmed.

       General Statutes (Rev. to 1993) § 38a-336 (d) provides: “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.”

       The fourteenth amendment to the constitution of the United States provides in pertinent part: “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

       The constitution of Connecticut, amendment twenty-one, provides in pertinent part: “No person shall be denied the equal protection of the law . . . .”


author: O’Connell, J.

text:
    State of Connecticut v. Deborah Szymkiewicz
    (12807)
    O’Connell, La very and Schaller, Js.
    Argued October 31, 1994
    decision released January 17, 1995

      Scott M. Jones, deputy assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were C. Robert Satti, Sr., state’s attorney, and Theresa Ferryman, deputy assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from the judgment of conviction, after a jury trial, of breach of the peace in violation of General Statutes § 53a-181 (a) (l). The jury acquitted the defendant of larceny in the sixth degree.

The defendant claims that the evidence was insufficient to support the conviction (1) because her conduct consisting solely of speech is not proscribed by the statute, and (2) because her conduct did not occur in a public place. We reverse the trial court’s judgment.

The genesis of this case was the defendant’s shopping trip to the Waterford Stop & Shop Supermarket. At the checkout counter, Kim Montigny, a store detective, asked the defendant to accompany her to the store manager’s office on the mezzanine. Once there, Montigny accused the defendant of shoplifting two bags of seafood and a container of cocktail sauce. While in the manager’s office, the defendant became loud and abusive, resulting in a call to the police.

Waterford police officer Mark Willard responded and, after observing the defendant’s behavior, arrested her for shoplifting and breach of the peace. He handcuffed the defendant, and he and Montigny led the defendant down the stairs and out of the store.

When asked to cooperate and quiet down, the defendant responded, “Fuck you,” several times. The record is not clear as to the defendant’s exact location at any of the various times that she used that language.

While being led down the stairs from the manager’s office, the defendant addressed Montigny, saying, “You fucking bitch. I hope you burn in hell for all eternity.”

Montigny also testified that while they were descending the stairs the defendant made a threatening remark to her. The record does not disclose the nature of the threat.

The defendant claims that the evidence was insufficient to support the conviction. In reviewing a sufficiency of the evidence claim, this court first reviews “ ‘ “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.” ’ ” State v. Gomez, 225 Conn. 347, 350, 622 A.2d 1014 (1993). The court then determines whether, on the facts thus established and the inferences drawn therefrom, the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt. Id.; State v. Lewis, 220 Conn. 602, 606, 600 A.2d 1300 (1991); State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991).

The defendant contends that because her conduct consisted solely of language, it is not within the ambit of subdivision (1) of § 53a-181 (a). It is not disputed that the defendant did not engage in any physical conduct.

The state argues that the defendant’s language constitutes “fighting words” and thus is not protected speech under the first amendment to the United States constitution. Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S. Ct. 766, 86 L. Ed. 1031 (1942). We do not consider constitutional issues, however, unless they are absolutely necessary to the decision of the case. State v. Mention, 12 Conn. App. 258, 262, 530 A.2d 645, cert. denied, 205 Conn. 809, 532 A.2d 78 (1987). Because this appeal can be determined by construing the breach of the peace statute, we will not address the constitutional “fighting words” issue.

A person violates § 53a-181 (a) (1) if he “[ejngages in fighting or in violent, tumultuous or threatening behavior . . . .” The issue is whether words alone constitute a violation of this subdivision.

This is not a case of first impression. We have construed the words “violent or threatening behavior” in this statute to mean “conduct which actually involves physical violence or portends imminent physical violence.” State v. Lo Sacco, 12 Conn. App. 481, 491, 531 A.2d 184, cert. denied, 205 Conn. 814, 533 A.2d 568 (1987). In Lo Sacco, we reversed the defendant’s conviction because his conduct was solely verbal.

We also look to judicial construction of the parallel provisions of the statute prohibiting disorderly conduct. General Statutes § 53a-182 (a) (1). The elements of the relevant subdivisions of the two statutes are identical except that the breach of the peace statute concerns behavior in a public place. In State v. Indrisano, 228 Conn. 795, 811, 640 A.2d 986 (1994), which was decided subsequent to the trial in the present case, our Supreme Court reviewed the Connecticut cases and concluded that the “core of prohibited conduct, as gleaned from the statutory language and its authoritative judicial gloss, is physically violent and physically tumultuous or threatening behavior.” (Emphasis in original.)

“The term ‘fighting/ by its plain meaning, involves physical force. The phrase ‘violent, tumultuous or threatening behavior’ also refers to physical action. If two or more words are grouped together, it is possible to ascertain the meaning of a particular word by reference to its relationship with other associated words and phrases under the doctrine of noscitur a sociis. 2A J. Sutherland, Statutory Construction (5th Ed. Sands 1992) § 47-16; State v. Roque, [190 Conn. 143, 152, 460 A.2d 26 (1993)]. Applying this doctrine, the Appellate Court, in State v. Lo Sacco, supra, [12 Conn. App. 491] construed ‘violent or threatening behavior’; General Statutes § 53a-181a (a); to mean ‘conduct which actually involves physical violence or portends imminent physical violence.’ Id., 491. Similarly, in State v. Duhan, 38 Conn. Sup. 665, 668, 460 A.2d 496 (1982), rev’d on other grounds, 194 Conn. 347, 481 A.2d 48 (1984), the Appellate Session of the Superior Court read the term ‘tumultuous’ in connection with its surrounding words, ‘violent’ and ‘threatening,’ and held that, because its meaning should be ascertained by reference to those associated words, ‘yelling and cursing unaccompanied by violent behavior is not prohibited by’ § 53a-182 (a) (1). In accordance with these decisions, we conclude that the terms ‘fighting’ and ‘violent’ lend an aspect of physicality to the more nebulous terms ‘tumultuous’ and ‘threatening.’ Thus, we conclude that subdivision (1) of § 53a-182 (a) prohibits physical fighting, and physically violent, threatening or tumultuous behavior.” State v. Indrisano, supra, 228 Conn. 811-12.

Our case law is clear that § 53a-181 (a) (1) requires proof of physical conduct, and, therefore, there was insufficient evidence to support the conviction in this case. Because our decision on the defendant’s first claim is dispositive of the appeal, we do not reach her second claim.

The judgment is reversed and the case is remanded with direction to render judgment of not guilty of breach of the peace.

In this opinion the other judges concurred.

       General Statutes § 53a-181 (a) provides: “A person is guilty of breach of the peace when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior in a public place . . . .”

       We note that the defendant was handcuffed at the time the unspecified threatening remark was made.

       General Statutes § 53a-182 (a) (1) provides: “A person is guilty of disorderly conduct when, with intent to cause inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: (1) Engages in fighting or in violent, tumultuous or threatening behavior . . .

       We note that subdivision (5) of General Statutes § 53a-181 (a) expressly prohibits “abusive or obscene language” in a public place. Query as to whether the legislature intended that verbal conduct be prosecuted under this subdivision rather than under subdivision (1)?


text:
    Union Trust Company v. Edwin C. Fordham
    (13391)
    O’Connell, Heiman and Cretella, Js.
    Argued December 1, 1994
    decision released January 17, 1995

      James M. Nugent, for the appellant (defendant).

      Kristi M. Agniel, for the appellee (plaintiff).
   Per Curiam.

This appeal by the defendant from a deficiency judgment in a mortgage foreclosure action claims that the plaintiff did not sustain its burden of proof properly to establish a deficiency, and further claims that any such deficiency was improperly calculated since it reflected evidence not properly submitted to the trial court. We agree in part.

As the finder of fact, the trial court had discretion to accept or to reject any or all of the testimony of the opposing expert appraisers. Neither its finding that the value of the property was $300,000 nor its restriction of testimony from a witness relating to zoning procedures was an abuse of that discretion.

We conclude, however, that the court’s use of the tax lien data that was provided to the court and to opposing counsel by letter after the conclusion of the hearing was improper. The defendant who filed a written objection to such evidence had no opportunity to question such data or to cross-examine any witness concerning it. Since the total of the tax liens was a sum certain in the amount of $14,218.75, further proceedings are not required.

The deficiency judgment is reversed in part and the case is remanded with direction to render judgment reducing the deficiency to $74,440.25.


author: Lavery, J.

text:
    State of Connecticut v. Dana Mozell
    (12395)
    Lavery, Hennessy and Freedman, Js.
    Argued November 7, 1994
    decision released January 24, 1995

      Lauren Weisfeld, assistant public defender, for the appellant (defendant).

      Nancy L. Gillespie, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and John M. Waddock, assistant state’s attorney, for the appellee (state).
   Lavery, J.

The defendant appeals from a judgment of conviction, rendered after a jury trial, of possession of narcotics with intent to sell in violation of General Statutes § 21a-278, and conspiracy to sell narcotics in violation of General Statutes §§ 21a-278 and 53a-48. The defendant claims (1) that the trial court’s denial of his motions to excuse two venirepersons for cause denied him his right to a fair and impartial jury and (2) that the trial court improperly instructed the jury on reasonable doubt. We affirm the judgment of the trial court.

The facts pertinent to the defendant’s first claim are as follows. The defendant and his codefehdant each were allotted eight peremptory challenges. The first venireperson to be questioned was Thomas Stretton, a police officer in the town of Cheshire, whom the defendant sought to remove for cause. The trial court denied the challenge for cause. The defendant removed Stretton by exercising his first peremptory challenge. After three jurors had been selected, the defendant challenged venireperson Phillip Travisano for cause. This challenge was denied and the defendant exercised his eighth and final peremptory challenge to remove Travisano. After voir dire of the venireperson that followed Travisano, the following colloquy took place:

“The Court:You’re out of challenges?

“[Defense Counsel]: That’s correct, Your Honor. I have no challenge for cause.”

That person became the fourth juror; the fifth and sixth jurors and one alternate were subsequently accepted by both defendants without challenge. The defendant requested no additional peremptory challenges from the court.

In examining the defendant’s claim that he was deprived of a fair and impartial jury, we focus not on the challenged venirepersons but on those who actually sat on the jury that decided the defendant’s case. Ross v. Oklahoma, 487 U.S. 81, 86, 108 S. Ct. 2273, 101 L. Ed. 2d 80 (1988); State v. Tucker, 226 Conn. 618, 631, 629 A.2d 1067 (1993); State v. Pelletier, 209 Conn. 564, 572-73, 552 A.2d 805 (1989). In the case at hand, as well as in Ross v. Oklahoma, supra, 86, none of the jurors who ultimately sat on the case was challenged for cause. Likewise, as in Ross, the defendant never suggested that any of the jurors that actually sat were not impartial. In addition, the defendant did not request an additional peremptory challenge to exercise against any of the seated jurors nor was there any indication that the defendant would have used a peremptory challenge against any of them if one had been available. Since no juror was forced on the defendant, he was not deprived of a fair and impartial jury by the trial court’s failure to excuse two venirepersons for cause. State v. Pelletier, supra, 572-73.

The right to exercise peremptory challenges against prospective jurors is granted to Connecticut criminal defendants by the state constitution, which provides that “[i]n all civil and criminal actions tried by a jury, the parties shall have the right to challenge jurors peremptorily, the number of such challenges to be established by law. ...” Conn. Const., amend. IV. This right is also protected by General Statutes §§ 54-82g and 54-82h.

In State v. Esposito, 223 Conn. 299, 313, 613 A.2d 242 (1992), our Supreme Court stated: “Accordingly, we agree with numerous other courts throughout the nation that it is reversible error for a trial court to force an accused to use peremptory challenges on persons who should have been excused for cause, provided the party subsequently exhausts all of his or her peremptory challenges and an additional challenge is sought and denied.” (Internal quotation marks omitted.)

In this case, the defendant failed to request any additional challenges. Immediately after the defendant had exhausted his peremptory challenges, he acknowledged, with respect to the next venireperson who became a juror, that he had no challenge for cause. He did not inform the trial court that an additional peremptory challenge was necessary to protect his rights to a fair and impartial jury. His mere statement that he had no challenge for cause did not imply a request for an additional peremptory challenge. Without challenging for cause or requesting an extra peremptory challenge, the defendant expressly accepted all subsequently seated jurors and the single alternate. The defendant has not sustained his burden on this claim.

The defendant’s second claim is that by defining a reasonable doubt as one “in which a reasonable man or woman can give a valid reason” the trial court violated the defendant’s right to due process of law under the federal and state constitutions and his right to a speedy and public trial by an impartial jury. We find no merit to this claim. The Supreme Court has consistently upheld this definition of a reasonable doubt and concluded that when viewed in the context of an entire charge the definition does not dilute the state’s burden of proof. State v. Kelley, 229 Conn. 557, 567-68, 643 A.2d 854 (1994). The court’s charge in this case, when viewed as a whole, clearly defined the standard for proof beyond a reasonable doubt.

The judgment is affirmed.

In this opinion the other judges concurred.


author: Heiman, J.

text:
    Barbara L. Rana v. Frank Ritacco
    (12816)
    O’Connell, Heiman and Spear, Js.
    Argued November 1, 1994
    decision released January 24, 1995

      James L. Sullivan, with whom, on the brief, was James D. Moran, Jr., for the appellant (Whittaker Corporation).

      Kerin M. Woods, for the appellee (plaintiff).
   Heiman, J.

Whittaker Corporation, the plaintiffs employer, appeals from the decision of the trial court denying its motion to intervene in its employee’s action against a third party. On appeal, the employer claims that it did not receive proper notice of the pending action pursuant to General Statutes § 31-293.

The following facts are relevant to this appeal. The plaintiff is employed by Whittaker Corporation (employer) as director of procurements. On January 23, 1989, while acting in the course of her employment, the plaintiff sustained various injuries when she slipped and fell in the hallway leading into her office. The employer extended benefits to the plaintiff under the Workers’ Compensation Act.

On December 19, 1990, the plaintiff issued a complaint against the defendant, Frank Ritacco, as owner of Ocean State Cleaning. Her complaint alleged that the defendant was liable to her for her injuries, asserting that the defendant was negligent both in allowing a slippery wax to remain on the floor and in failing to warn the plaintiff of the dangerous condition. The summons and complaint were thereafter delivered to the sheriff with a return date of January 22, 1991.

On December 20, 1990, the plaintiff mailed notice to her employer of her intention to bring an action against the defendant. The notice was sent by certified mail and was acknowledged as received by the employer on January 7,1991. On June 18,1993, the employer moved to intervene as a coplaintiff. The plaintiff objected, asserting that the motion was not timely in that it was not filed within thirty days of the plaintiffs notice of the pending action. The motion to intervene was denied by the trial court on August 23, 1993, and this appeal followed.

On appeal, the employer claims that the trial court improperly denied its motion to intervene because the notice it received did not comport with the requirements of § 31-293. Essentially, the employer argues that § 31-293 requires that an employee send notice after the summons and complaint have been returned to court in order to give an employer the full benefit of the thirty day period in which to intervene. We agree and reverse the decision of the trial court.

“ ‘In construing a statute, common sense must be used, and the courts will assume that the legislature intended to accomplish a reasonable and rational result. . . . A statute . . . should not be interpreted to thwart its purpose.’ (Citations omitted; internal quotation marks omitted.) Board of Education v. State Board of Labor Relations, [217 Conn. 110, 126-27, 584 A.2d 1172 (1991)].” Police Dept. v. State Board of Labor Relations, 225 Conn. 297, 303, 622 A.2d 1005 (1993).

“General Statutes § 31-293 grants to an employer who has paid worker’s compensation [benefits] a right to join as a party plaintiff in actions by employees against third party tortfeasors . . . .” (Citations omitted; internal quotation marks omitted.) Durrschmidt v. Loux, 230 Conn. 100, 103, 644 A.2d 343 (1994), quoting Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 537, 582 A.2d 1174 (1990); see also Gurliacci v. Mayer, 218 Conn. 531, 578, 590 A.2d 914 (1991). This statute gives an employer a means of obtaining reimbursement for any worker’s compensation benefits paid by it for which a third party may be liable. Quire v. Stamford, 231 Conn. 370, 375, 650 A.2d 535 (1994). The failure of an employer to intervene within thirty days after notification of an action prohibits it from later asserting a right to any recovery that the plaintiff employee may be awarded. General Statutes § 31-293.

The thirty day limitation period of § 31-293 is not triggered without proper notice to the employer of the action in which it may intervene. Durrschmidt v. Loux, supra, 230 Conn. 103; Gurliacci v. Mayer, supra, 218 Conn. 578. “Fundamental tenets of due process . . . require that all persons directly concerned in the result of an adjudication be given reasonable notice and the opportunity to present their claims or defenses. . . .” (Citations omitted.) Kron v. Thelen, 178 Conn. 189, 193, 423 A.2d 857 (1979).

We, as well as our Supreme Court, have consistently interpreted adequate and proper notice under § 31-293 to require a plaintiff to notify an employer “of two facts: (1) the fact that the action has been brought; and (2) the name of the court to which the writ in the action is returnable.” Winslow v. Lewis-Shepard, Inc., supra, 216 Conn. 538; see also Durrschmidt v. Loux, supra, 230 Conn. 104.

It is well established in Connecticut that an action has not been brought until service of process has been made upon a defendant; Hillman v. Greenwich, 217 Conn. 520, 527, 587 A.2d 99 (1991); and returned to court. Rogozinski v. American Food Service Equipment Corp., 211 Conn. 431, 433, 559 A.2d 1110 (1989); see also General Statutes §§ 52-45aand 52-46a. Until such service has been made and returned to court, no action exists in which an employer may intervene. Proper notice of a pending action must, therefore, await service of process on the defendant and return of process to the court in order to give to an employer the full benefit of the thirty day period outlined in § 31-293 in which to exercise its rights to intervene.

We note also that the plaintiff’s focus on the word “returnable” in § 31-293 is misplaced. Despite her claim that the word returnable implies something that will occur in the future, we cannot interpret the language of a statute to achieve bizarre results. State v. Jiminez, 228 Conn. 335, 341, 636 A.2d 782 (1994). To hold that an employee may give notice of an action before service has been made on a defendant and returned to court would allow a plaintiff to thwart the purposes of § 31-293. In civil actions, a return day may be set up to two months after the date of process. General Statutes § 52-48 (b). Such process need not be served on the defendant until twelve days prior to the return day and need not be returned to the court until six days prior to the return day. General Statutes §§ 52-46 and 52-46a. If a plaintiff were allowed to send § 31-293 notice on the date that the complaint is issued, the thirty day period provided in the statute could run before there was any action in existence in which the employer could intervene. We cannot interpret a statute in a way that would allow a party to impede due process and its requirements of notice. Police Dept. v. Board of Labor Relations, supra, 225 Conn. 303; Kron v. Thelen, supra, 178 Conn. 193.

Because the plaintiffs employer did not receive proper notice of the plaintiffs action against the third party tortfeasor, the thirty day limitation period of § 31-293 cannot be used to bar its intervention in that action. “An employer who does not receive notice from an employee concerning the institution of a third party action in accordance with § 31-293 [cannot] be barred from intervening by the passage of the [thirty day filing period] which this statute prescribes, because, until notice is given, the time does not begin to run.” (Internal quotation marks omitted.) Durrschmidt v. Loux, supra, 230 Conn. 103; Gurliacci v. Mayer, supra, 218 Conn. 578. The trial court, therefore, improperly denied the employer’s motion to intervene.

The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The trial court’s denial of Whittaker Corporation’s motion to intervene, although interlocutory, constitutes an appealable final judgment. See Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 536, 582 A.2d 1174 (1990). “The test for determining whether an order denying a motion to intervene constitutes a final judgment is whether the would-be intervenor can make ‘a colorable claim to intervention as a matter of right.’ Ricard v. Stanadyne, Inc., 181 Conn. 321, 322 n.1, 435 A.2d 352 (1980); Common Condominium Assns., Inc. v. Common Associates, 5 Conn. App. 288, 291, 497 A.2d 780 (1985).” Id. An employer seeking to join as coplaintiff in an employee’s action against a third party tortfeasor makes a colorable claim to intervention as a matter of right because General Statutes § 31-293 specifically grants an employer the right to intervene. Id. The denial of the motion to intervene in this case, therefore, constitutes a final judgment and we will review the merits of Whittaker Corporation’s claims.

       General Statutes § 31-293 provides in pertinent part: “(a) When any injury for which compensation is payable under the provisions of this chapter has been sustained under circumstances creating in a third person other than the employer a legal liability to pay damages for the injury ... the injured employee may proceed at law against the third person to recover damages for the injury; and any employer having paid, or having become obligated to pay, compensation under the provisions of this chapter may bring an action against the third person to recover any amount that he has paid or has become obligated to pay as compensation to the injured employee. If either the employee or the employer brings an action against the third person, he shall immediately notify the other, in writing, by personal presentation or by registered or certified mail, of the action and of the name of the court to which the writ is returnable, and the other may join as a party plaintiff in the action within thirty days after such notification, and, if the other fails to join as a party plaintiff, his right of action against the third person shall abate. . . .”

       The content of the plaintiffs notice to Whittaker Corporation is as follows: “In accordance with Section 31-293 of the Connecticut General Statutes, this will inform you that suit has been commenced on behalf of Barbara Rana in the above-noted matter. Enclosed please find copy of Writ, Summons and Complaint which has this day been forwarded to our sheriff for service on the named defendant. You will note that this action is being brought in the New London Judicial District at Norwich and has a return date of January 22, 1991.”


author: Foti, J.

text:
    William Bethea v. Commissioner of Correction
    (13068)
    Foti, Laveey and Heiman, Js.
    Argued October 25, 1994
    decision released January 24, 1995

      Paula Mangini Montonye, assistant public defender, for the appellant (petitioner).

      James A. Kitten, assistant state’s attorney, with whom, on the brief, was John M. Bailey, chief state’s attorney, for the appellee (respondent).
   Foti, J.

The petitioner appeals from the judgment of the habeas court dismissing his petition for a writ of habeas corpus. On appeal, the petitioner asserts that the habeas court improperly concluded that he had failed to prove that he was denied the effective assistance of counsel. We affirm the judgment of the habeas court.

In July, 1989, the petitioner was convicted of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A), assault in the second degree in violation of General Statutes § 53a-60 (a) (2), and attempted sexual assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-70 (a). He was sentenced to a term of imprisonment of thirty-five years, suspended after twenty-five years, followed by five years probation. We affirmed the petitioner’s conviction on direct appeal. State v. Bethea, 24 Conn. App. 13, 585 A.2d 1235, cert. denied, 218 Conn. 901, 588 A.2d 1076 (1991). On August 5, 1992, the petitioner filed a third amended petition for a writ of habeas corpus, consisting of three counts, in which he alleged that he had been denied his state and federal constitutional rights to the effective assistance of trial counsel. The habeas court heard testimony on two separate days and filed its memorandum of decision, dismissing the petition, on November 4,1993. The habeas court concluded that the petitioner had not proven prejudice in that he did not show that the alleged incompetence actually affected the outcome of the trial.

The habeas court noted that the petitioner had repeatedly requested that his special public defender be replaced and that the petitioner became unruly at times during the trial. At no time did defense counsel request an examination of the petitioner under General Statutes § 54-56d. The habeas court also noted that there was “some indication that [defense counsel], faced with the demands of the preparation and presentation of evidence at a serious felony trial without assistance, relied upon the intervention of [the trial judge] to evaluate the competency of his client and some indication that a series of chambers conferences considered the petitioner’s competency. Unquestionably, this examination did not include any expert examination of the petitioner or review by a psychiatrist of the available records.” The habeas court concluded that the petitioner had not sustained his burden of affirmatively proving prejudice; he did not show that there existed a reasonable probability that but for counsel’s unprofessional error in not requesting an examination under § 54-56d, the results of the trial would have been different.

The petitioner alleges that “[i]t is clear from the decision of the habeas court that it misapplied the prejudice prong of Strickland [v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. The habeas court chose to deny the petitioner’s claim by simply addressing the prejudice prong of the standard without any reference to the first prong. . . . [It] neglected to relate its analysis of the prejudice prong to any of the claimed deficiencies in counsel’s performance.” The petitioner also claims that the habeas court did not apply the appropriate standard for prejudice under Strickland. He argues that the court applied a “harmfulness” test rather than the appropriate test of whether there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the trial would have been different. The petitioner posits that confidence in the outcome of the proceedings was undermined because counsel failed to investigate the petitioner’s psychiatric history, and he failed to request an examination under § 54-56d. The petitioner claims that counsel’s failure to do so, in light of the circumstances of the petitioner’s behavior at trial, means that there is a reasonable probability that the petitioner was tried while he was incompetent. We do not agree.

We have recently noted that, in order to prevail on a constitutional claim of ineffective assistance of counsel under the two-pronged analysis of Strickland, “the petitioner must demonstrate both (1) deficient performance and (2) actual prejudice.” (Emphasis added.) Talton v. Warden, 33 Conn. App. 171, 182, 634 A.2d 912 (1993), aff'd, 231 Conn. 274, 648 A.2d 876 (1994). “To satisfy the second prong, that his counsel’s deficient performance prejudiced his defense, the petitioner must establish that counsel’s errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable. . . . The second prong is thus satisfied if the petitioner can demonstrate . . . that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. ...” (Citations omitted; internal quotation marks omitted.) Id., 183, quoting Davis v. Warden, 32 Conn. App. 296, 303, 629 A.2d 440, cert. denied, 227 Conn. 924, 632 A.2d 701 (1993). “An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. . . . A court deciding an ineffective assistance of counsel claim need not address the question of counsel’s performance, if it is easier to dispose of the claim on the ground of insufficient prejudice.” (Citation omitted; internal quotation marks omitted.) Nardini v. Manson, 207 Conn. 118, 124, 540 A.2d 69 (1988).

Here, the petitioner’s burden was not met, as he failed to demonstrate that there existed “a reasonable probability that, absent [the unprofessional errors by counsel], the factfinder would have had a reasonable doubt respecting guilt.” Strickland v. Washington, supra, 466 U.S. 695. This is the standard that was applied by the habeas court in this case. The court, having found that the second prong of Strickland, the actual prejudice requirement, had not been met, properly went no further and had no need to refer to the first prong.

The habeas court understood the petitioner to be arguing that there should be a new per se rule of prejudice when counsel fails to request a needed competency examination. The court refused to create such a rule. The petitioner asserts that the court has “misinterpreted” his claim of prejudice. The petitioner argues that if competency is questioned and a competency examination is necessary, but no examination is requested by counsel, “then there is a reasonable probability that the defendant was tried while he was incompetent, which violates his right to due process which has ‘prejudiced’ the defendant.” Our review of the whole record leads us to conclude that the habeas court correctly determined that the petitioner had not sustained his burden of showing that he was tried while he was in fact incompetent so as to be unable to assist in his own defense. While the habeas court might have agreed that counsel’s failure to seek an examination under § 54-56d was in some manner deficient, we cannot conclude that that error is the equivalent of actual prejudice. Even if the petitioner had been able to demonstrate to the habeas court that he was either mentally ill or mentally disabled at the trial, this would not suffice for purposes of prejudice unless he showed that his condition precluded him from assisting in his own defense. Such a showing would allow a habeas court to conclude that, because of the unprofessional error of trial counsel in not requesting an examination under § 54-56d, the petitioner was unable to assist in his own defense, thereby sustaining an actual prejudice and not a speculative one.

The petitioner argues that to convict an incompetent person is a per se due process violation. The petitioner fails, however, to point to any specific part of the record that demonstrated, to the habeas court, that he was in fact incompetent and unable to assist in his own defense. The petitioner has also failed to demonstrate that the convictions are unreliable, or that, but for counsel’s failure to request an examination, the outcome of the trial would have been significantly affected. Nor has he shown that his defense would have been different, or was improper, because of his being unable to assist in his own defense.

Lastly, the petitioner argues that the habeas court’s factual analysis of his claim of ineffective assistance of counsel was clearly erroneous. We have reviewed the record and briefs and find no merit to this claim.

We, therefore, conclude that the evidence supports the habeas court’s finding that the petitioner failed to establish prejudice even if we assume that he had successfully established a deficient performance by counsel.

The judgment is affirmed.

In this opinion the other judges concurred.

       The underlying facts of the petitioner’s convictions are set forth in State v. Bethea, 24 Conn. App. 13, 585 A.2d 1235, cert. denied, 218 Conn. 901, 588 A.2d 1076 (1991).

       General Statutes § 54-56d provides in pertinent part: “(a) ... A defendant shall not be tried, convicted or sentenced while he is not competent. ... [A] defendant is not competent if he is unable to understand the proceedings against him or to assist in his own defense. . . .
      “(c) . . . If at any time during a criminal proceeding it appears that the defendant is not competent, counsel for the defendant or for the state, or the court, on its own motion, may request an examination to determine the defendant’s competency.”

       The habeas court had before it some evidence that the petitioner planned to obstruct the trial because he was unhappy with the way it was going. He wanted either to delay the trial or to have his attorney replaced.

       “The record reveals that the court’s observation at trial was that the defendant was not mentally ill and found that there was no apparent need to order the readministration of his psychiatric medication by prison officials. The observations and findings of the trial court must be accorded great weight. The court had ample first hand knowledge of the defendant on which to make an informed judgment and its denial of the motion for a psychiatric examination [a presentence evaluation pursuant to General Statutes § 17-244] was not an abuse of discretion.” State v. Bethea, supra, 24 Conn. App. 23-24.

       The petitioner was acquitted on a sexual assault charge. The petitioner does not dispute that his defense counsel was in the best position to observe whether he was able to assist in his own defense, or was able to function so as to aid counsel. The petitioner, however, notes that the habeas court did not indicate that it had credited trial counsel’s testimony in any fashion.


text:
    Carmelis Parker v. Supermarkets General Corporation
    (12834)
    Dupont, C. J., and La very and Spear Js.
    Submitted on briefs November 3, 1994
    decision released January 24, 1995

      J. Kevin Golger filed a brief for the appellant (defendant).

      James M. Connolly filed a brief for the appellee (plaintiff).
   Dupont, C. J.

The defendant in this negligence action appeals from a judgment rendered in accordance with a jury verdict for the plaintiff, awarding the plaintiff a total of $64,605 in damages, $13,140 for past noneconomic damages and $51,465 for future noneconomic damages. The sole issue is whether the trial court improperly instructed the jury that it could award damages for future pain and suffering without expert medical testimony if the jury inferred from the evidence that the plaintiffs injuries were permanent in nature. We affirm the judgment of the trial court.

The jury reasonably could have found certain facts. While shopping at the defendant’s store, the plaintiff slipped and fell on an oily section of the floor due to the defendant’s negligence. As a result of the fall, the plaintiff sustained injuries, including an exacerbation of a preexisting back condition.

The plaintiff had suffered from back problems for most of her adult life. At the time of the accident in the defendant’s store, the plaintiff was suffering from pain due to these earlier injuries. The plaintiff claimed, however, that the pain she had endured before the slip and fall was exacerbated as a result of the fall. The plaintiff testified about the difference in the pain she felt, and the physical activities she could undertake, both before and after the slip and fall. The plaintiff’s husband further testified about the differences in the plaintiff’s activities before and after the fall. The nature and the source of the injury was confirmed by a medical report from one of the plaintiff’s physicians.

The trial court instructed the jury that it could award the plaintiff damages for future pain and suffering if the jury inferred that the aggravation of the plaintiffs preexisting pain was permanent in nature, even though there may not have been medical evidence to that effect. The defendant argues that this instruction was improper because the plaintiff’s condition was complex and beyond the ordinary knowledge and experience of jurors, and, therefore, direct medical testimony on the permanency of the plaintiff’s injuries should have been required before the issue reached the jury. The defendant claims that the jury could not distinguish, without expert medical testimony, whether any future pain and suffering would be the result of the fall in the defendant’s store or the result of the deterioration of the plaintiff’s preexisting injury. Alternatively, the defendant argues that there was insufficient evidence from which the jury could infer that the plaintiff’s pain and suffering would continue into the future.

“A trier of facts can conclude, by inference, that an injury will be permanent even though there is no medical testimony expressly substantiating permanency.” Royston v. Factor, 1 Conn. App. 576, 577, 474 A.2d 108, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984); Robinson v. ITT Continental Baking Co., 2 Conn. App. 308, 313, 478 A.2d 265 (1984); Dibble v. Ferguson, 15 Conn. App. 97, 99, 543 A.2d 294 (1988); Niles v. Evitts, 16 Conn. App. 696, 698, 548 A.2d 1352 (1988).

This principle is based on the recognition by Connecticut courts that jurors are able to evaluate for themselves the testimony of the plaintiff, as well as the nature and duration of the injury, the likelihood of its continuance into the future, and the lack of total recovery by the time of trial. Trani v. Anchor Hocking Glass Corp., 142 Conn. 541, 543-44, 116 A.2d 167 (1955); Boland v. Vanderbilt, 140 Conn. 520, 523, 102 A.2d 362 (1953). If a jury has the opportunity to appraise the condition of a plaintiff and its probable future consequence, an award of damages for permanent injury and for future pain and suffering is proper. Boland v. Vanderbilt, supra, 523.

The permanent effects of an aggravation of a preexisting injury are as apparent to a jury as the permanent effects of any other injury, as long as the nature and scope of the preexisting injury is revealed to the jury through testimony at trial. If the jury is aware of the plaintiff’s condition before the accident, and compares that to the plaintiff’s condition after the accident, then the jury can logically infer that the aggravation of the injury, reflected by the change in the plaintiff’s condition, will be permanent. See Boland v. Vanderbilt, supra, 140 Conn. 524. In Boland, the defendant was liable for the cumulative damage caused by his negligence even though that damage was greater than it would have been had the plaintiff not had a preexisting injury.

It is appropriate for the trial court to submit the issue of the permanency of an aggravated injury to the jury, if a proper foundation has been laid concerning the plaintiff’s condition before and after the injury and if some evidence of permanency has been introduced at trial. See Niles v. Evitts, supra, 16 Conn. App. 699. The trial court must also include in its instructions to the jury a caution that the jury is to award damages only for that part of the pain and suffering attributable to the aggravation of the preexisting injury. Varley v. Motyl, 139 Conn. 128, 130-31, 90 A.2d 896 (1952).

Here, it was appropriate for the trial court to submit to the jury the issue of permanency. First, a sufficient foundation was laid concerning the plaintiffs condition before and after the accident. The plaintiff testified about the difference in the pain she felt, and the physical activities she could undertake, both before and after the slip and fall. The plaintiffs husband testified about the differences in the plaintiffs activities before and after the fall. There was also medical evidence concerning the plaintiffs physical condition before and after her slip and fall. The trial took place six years after the fall, which allowed the jury to evaluate the plaintiff’s testimony of permanency with that fact before it. Trani v. Anchor Hocking Glass Corp., supra, 142 Conn. 544.

The defendant claims there was insufficient evidence of permanency to support submission to the jury. There was medical evidence, however, that it was unlikely that either physical therapy or surgery would alleviate the plaintiffs pain, and evidence at the time of trial, approximately six years after the accident, that the plaintiff was still suffering from the aggravated pain.

The trial court indicated to the jury that the plaintiff should be compensated only for the aggravation of her prior injuries. The trial court stated that the plaintiff was entitled to damages for “those permanent consequences of the aggravation of her prior back condition.” Also, earlier in the charge, the trial court stated: “[I]f you find that the defendant was negligent and if the negligent act of the defendant lighted up, aggravated or made worse or exacerbated the plaintiffs preexisting condition, then the aggravation or lighting up of the preexisting condition is a proper item of damage.”

We conclude (1) that the trial court properly instructed the jury that it could infer that the plaintiffs injuries would be permanent, even though there may have been no medical testimony to that effect, and (2) that the evidence of permanency was sufficient to allow the jury to consider the issue.

The judgment is affirmed.

In this opinion the other judges concurred.

       When the plaintiff was twelve years old, she injured her back when thrown from a horse. Then, in 1955, the plaintiff was involved in an automobile accident that caused her to suffer back pain. After the automobile accident, the plaintiff underwent back surgery to remove two ruptured disks and to create a bone grafting for her spine. Later, the plaintiff underwent cleanup surgery to remove parts of the grafting that had begun to deteriorate, affecting her nerves and muscles.

       The plaintiff did not seek compensation for disability, but sought damages for increased pain and suffering.

       The plaintiff introduced at trial the medical reports of two physicians, Kenneth I. Lipow and John V. Mangieri. The report of Lipow stated in pertinent part: “I feel that [the plaintiff’s] fall in the supermarket caused ... a flare-up of a low back strain based on her preexisting back history. 11'eel that her fall was a substantial factor in exacerbating her preexisting condition, and that this low back condition is not a new condition.”
      A second report of Lipow indicated that “therapy . . . would most likely not produce long-lasting relief. ... I also do not feel that surgical resolution of her problem is likely, and the most beneficial course for this patient would be a physical reconditioning approach including swimming and exercise components.”
      The report of Mangieri stated in pertinent part: “I do not find any substantial difference in . . . [the plaintiff’s] disability [prior to the slip and fall] . . . versus her present disability after her fall .... Although I do feel her present disability in the lumbar area is approximately 20 percent which is permanent, but not related to the injury [at the defendant’s store]. . . .”

       The trial court stated in its charge to the jury: “It is well settled law that if there is evidence from which you may infer that the painful effects of Mrs. Parker’s injuries are permanent, then you may conclude that they are so. If you find that she will endure pain and suffering as a result of this injury and that the pain and suffering will be permanent, then she is entitled to receive compensation for those permanent consequences which aggravate — excuse me, for those permanent consequences of the aggravation of her prior back condition — of her prior condition. That her pain and suffering will be permanent may be inferred from the evidence even though there was no medical testimony to that effect.”
      The trial court later recharged the jury stating: “1 want to correct a portion of the charge. That portion of the charge I wish to correct is the portion dealing with pain and suffering and whether or not that will be permanent and whether it may be inferred from the evidence. I read — I said to you that the plaintiff’s pain and suffering will be permanent may be inferred from the evidence even though there was no medical testimony to that effect. I should have said even though there may be no medical testimony to that effect. So what I charge you is that her pain and suffering will be permanent may be inferred from the evidence even though there may be no medical testimony to that effect. And if there was medical testimony to that effect or not, that is for you, the jury, to determine.”
      The defendant did not include the recharge to the jury in its brief or appendix. The defendant, however, claims error in the original charge and not in the recharge. The plaintiff claims that we should not review the defendant’s claim of error because of the defendant’s failure to include in its appendix both the charge and the recharge. The only significant change between the charge and recharge is that the charge states that “there was no medical testimony” concerning the permanency of pain and suffering, whereas the recharge states that “there may be no medical testimony” to that effect. Because the defendant is not claiming any error arising out of the change of language between the two charges, the defendant’s claim is reviewable. Of necessity, our review embodies all of the charge, including the recharge.

       “The only ease to the contrary is Hulk v. Aishberg, 126 Conn. 360, 362-63, 11 A.2d 380 (1940). Hulk, however, has never been cited in that respect since it was decided. Both Trani v. Anchor Hocking Glass Corporation, 142 Conn. 541, 116 A.2d 167 (1955), and Boland v. Vanderbilt, 140 Conn. 520, 102 A.2d 362 (1953), were decided after Hulk. Trani and Boland strongly suggest that the conclusion in Hulk regarding a jury instruction on permanency of injury has been implicitly limited to its facts.” Dibble v. Ferguson, 15 Conn. App. 97, 100 n.3, 543 A.2d 294 (1988).

       “In assessing the adequacy of a charge to the jury, we consider the charge in its entirety, and judge it by its total effect rather than by its individual component parts.” Goodmaster v. Houser, 225 Conn. 637, 644, 625 A.2d 1366 (1993).