text:
    City of Bristol v. David Vogelsonger et al.
    (8002)
    Dupont, C. J., O’Connell and Norcott, Js.
    Argued February 16
    decision released May 29, 1990

      James Wu, with whom, on the brief, was Lisa M. Ferraro, for the appellants (defendants).

      I. Milton Widem, with whom were Emily N. Roisman and, on the brief, Michael S. Lubofsky, for the appellee (plaintiff).
   Norcott, J.

This appeal arises out of condemnation proceedings commenced by the plaintiff, the city of Bristol (the city), against the defendant landowners (the defendants). The defendants appeal from the trial court’s denial of their motions for summary judgment and its appointment of three disinterested appraisers to assess the value of their properties that were the subject of the condemnation proceedings.

The city had conducted studies to determine what measures would be necessary to maintain an adequate water supply for the city over the next century. On the basis of those studies, it concluded that it must expand Cook’s dam, located in Harwinton, to build a reservoir. The city determined that certain properties owned by private citizens of Harwinton were essential to this plan. The city purchased almost all of the essential properties except those belonging to the defendants, who refused to sell.

The city then sought to acquire the defendants’ land by eminent domain pursuant to § 2 of Special Act No. 251 (1911). In order to commence this condemnation action, the city filed an “Application for Appointment of Appraisers to Determine Compensation or Damages as to taking of Real Property” pursuant to § 48e of the city charter and the special act. The defendants filed an answer and ten special defenses. On December 1, 1986, at a hearing ón a motion to appoint the appraisers, the court, Spada, J., denied the city’s application.

On January 9, 1989, the court, Fracasse, J., sent notice to the parties reminding them that they were to file, by January 18, “legal memoranda on questions of law to be considered by the trial court.” The defendants filed memoranda addressing the question of whether the special act gave the city the authority to condemn this property. This action was scheduled for trial on January 25,1989. On that date, the defendants filed motions for summary judgment based upon the same legal claim outlined in their memoranda, namely, that the city lacked authority to condemn their properties. The court, Freed, J., denied the motion, ruling that the city did have the power to condemn property in Harwinton pursuant to the act.

On March 9,1989, the city filed a motion for appointment of appraisers. At the hearing on that motion, the defendants objected to the appointment and claimed they were entitled to present evidence in support of their special defenses before an appointment could take place. On March 31, 1989, the court, O’Connor, J., granted the city’s motion for appointment of appraisers without a written memorandum of decision. From this ruling, the defendants appeal.

The defendants claim that the trial court erred in denying their motions for summary judgment and ruling that the special act empowered the city to condemn their properties. The defendants further claim that the trial court erred in granting the city’s motion for appointment of appraisers because the appointment itself assumed the propriety of these takings and decided the defendants’ special defenses against them without affording the defendants their right to a full hearing on the merits. We find error in part.

I

The defendants first claim that the trial court erred in denying their motions for summary judgment and, thereby, holding that the special act permits the city to take property located in Harwinton by eminent domain. We disagree.

Section 1 of the special act states that the city “may take, lease, and use the water of any spring, stream, and watersheds and drainage areas . . . and is hereby given full power to . . . take, lease, and hold by purchase or gift any real estate, personal property, or easements necessary or convenient to fully carry out the purposes of this resolution and for storing, conducting, and distributing water, and for all buildings and constructions necessary or convenient for fully supplying said town [now city] of Bristol and the inhabitants thereof with pure water . . . .” (Emphasis added.)

The defendants claim that the language of the special act does not authorize the city to take, by way of eminent domain, any land in Harwinton, but rather authorizes only the “taking” of water. They claim that, under the act, the only way for the city to obtain land is by voluntary transfer. They argue, in an attempt to support this claim, that the words “by purchase or gift” modify all three verbs preceding them: take, lease and hold.

“[Statutory language is to be given its plain and ordinary meaning.” Mazur v. Blum, 184 Conn. 116, 118, 441 A.2d 65 (1981); see also Carrothers v. Vumbacco, 4 Conn. App. 168, 171, 493 A.2d 259 (1985). “ ‘A cardinal rule of statutory construction is that where the words of a statute are plain and unambiguous the intent of the [drafters] in enacting the statute is to be derived from the words used.’ ” State v. Millstein, 8 Conn. App. 581, 597, 513 A.2d 1253, cert. denied, 201 Conn. 814, 518 A.2d 72 (1986); see also Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). Where the court is provided with a clearly written rule, it “need look no further for interpretive guidance.” Id.; see also Connecticut Hospital Assn. v. Commission on Hospitals & Health Care, 200 Conn. 133, 141, 509 A.2d 1050 (1986).

It is clear from the language of § 1 of the special act that the city has the power to take by eminent domain any land that is “necessary or convenient to fully carry out the purposes of [the] resolution,” that purpose being to provide and maintain an adequate water supply to the city. The defendants' contention that the phrase “by purchase or gift” after the words “take, lease, and hold” must be read to modify all three verbs in the series is unpersuasive. The court is bound to construe a statute so as to give it a common sense meaning. Marcolini v. Allstate Ins. Co., 160 Conn. 280, 284, 278 A.2d 796 (1971). To read these words as the defendants urge would require this court to interpret this statute in a manner that does not convey a common sense meaning. The words “take” and “purchase” have two distinct meanings. “Take” must be construed to convey its common meaning: “to get into one’s hands or into one’s possession, power or control by force or stratagem.” Webster, Third New International Dictionary. “Purchase” is defined as a “[transmission of property from one person to another by voluntary act . . . .” Black’s Law Dictionary (5th Ed.) It would require a strained and nonsensical reading to interpret the words “purchase or gift” as modifying “take.” Second, one cannot conceivably “lease by purchase.” A purchase involves a transfer of ownership of property, while a lease involves something less than a complete transfer of ownership. See Black’s Law Dictionary, supra, p. 800.

“‘[Cjourts must apply the . . . enactment according to its plain terms and “cannot read into the terms of a statute something which manifestly is not there . . . .” ’ ” (Citations omitted.) Commissioner v. Freedom of Information Commission, 204 Conn. 609, 620, 529 A.2d 692 (1987). The enactment here serves the purpose of ensuring an adequate water supply to the city, and it authorizes the city to acquire those properties necessary to serve that purpose. The trial court did not err in denying the defendants’ motions for summary judgment.

II

The defendants next claim that the trial court erred in granting the motion for appointment of appraisers to assess the value of the land. They contend that the granting of the motion necessarily concluded that these takings were valid and denied them their right to present evidence on their special defenses.

A

The defendants assert that the granting of the motion for appointment of appraisers concluded that the takings in question were proper without a hearing on that issue. In response, the city argues that the propriety of these takings had already been ruled upon by Judge Freed when he denied the defendants’ motions for summary judgment, and that, even if it had not been determined, a proper taking is not a prerequisite to the appointment of appraisers. We agree with the defendants.

After § 1 of the special act outlines the authority of the city to take certain property by eminent domain, § 2 provides that the city “is . . . authorized to enter upon any land or water for the purpose of making surveys, and to agree with the owner or owners of any property . . . which may be necessary or convenient for carrying out the purposes of this resolution as to the amount of compensation to be paid . . . and in case of disagreement between said town . . . and any owner or owners as to such compensation or as to the amount of damages which ought to be awarded . . . any judge of the superior court may, on the application of either party . . . appoint three disinterested persons to examine any such property which is to be taken or damaged .... Such judge may thereupon . . . direct said town to pay the sum appraised . . . in full compensation for the property acquired or the injury done by said town . . . .” (Emphasis added.)

. It is evident from this act that the conclusion that a taking is proper is a prerequisite to the appointment of the appraisers. Should the taking be deemed proper, the appointment of appraisers to assess just compensation can be made. See Antman v. Connecticut Light & Power Co., 117 Conn. 230, 239, 167 A. 715 (1933), overruled on other grounds, Buck v. Morris Park, Inc., 153 Conn. 290, 293, 216 A.2d 187 (1965), appeal dismissed, 385 U.S. 2, 87 S. Ct. 33, 17 L. Ed. 2d 2 (1966). If there has been no previous determination of the propriety of the taking, the act of appointing a committee of appraisers necessarily implies that conclusion. Antman v. Connecticut Light & Power Co., supra.

B

Because we conclude that the propriety of the taking is a prerequisite to the appointment of appraisers, we must address the issue of whether the propriety of the taking of the defendants’ land had in fact been determined. It is clear from the transcript of the hearing on the city’s motion for appointment of appraisers that Judge O’Connor was aware of this prerequisite and believed, in light of the city’s representations, that Judge Freed had already ruled upon the propriety of the takings. It further appears that, believing that the propriety of these takings had already been ruled upon, Judge O’Connor proceeded to the next logical step and granted the motion to appoint the appraisers. In countering the defendants’ appeal, the city argues, as it did before Judge O’Connor, that Judge Freed concluded that these takings were indeed proper. We do not agree.

In addressing the defendants’ motions for summary judgment, Judge Freed was asked to rule upon the question of law of whether the city had the power to take this land. His denial of the defendants’ motions for summary judgment was premised solely on the conclusion that the special act, in fact, authorizes the city to acquire property by eminent domain. Judge Freed did not, and could not in the context of a summary judgment adjudication, make a factual determination as to the propriety of these particular takings.

c

Before determining whether the trial court erred in granting the city’s motion and in appointing the appraisers, we must determine whether, as the city argues, the defendants waived their right to present their special defenses and contest the validity of these particular takings. We conclude that they did not.

The defendants filed their memoranda in compliance with an order of the trial court, Fracasse, J., that “legal memoranda on questions of law to be considered by the trial judge must be filed by January 18, 1989.” The defendants addressed the only issue involving solely a “question of law” and also filed their motions for summary judgment. Both the memoranda in response to the court order and those in support of the motion addressed only the legal question of whether the city had the authority to take land in Harwinton by eminent domain.

The defendants claim, as they did before the trial court at the hearing on their motions, that the other nine special defenses were not briefed because Judge Fracasse had specifically ordered “memoranda of law addressing legal issues” and that their other nine special defenses required factual determinations. The city argues that those other nine special defenses should have been briefed regardless of the issues involved and that by not presenting those issues to the court, the defendants abandoned them.

“ ‘Waiver is the intentional relinquishment of a known right,’ ” Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 561, 316 A.2d 394 (1972). “ ‘To constitute waiver “there must be both knowledge of the existence of the right and intention to relinquish it.” ’ ” (Emphasis in original.) Id., 562; see also Hensley v. Commissioner of Transportation, 211 Conn. 173, 179 (1989). “ ‘[Wjaiver may be inferred from the circumtances if it is reasonable so to do. ’ ” (Emphasis added.) Novella v. Hartford Accident & Indemnity Co., supra.

Applying these principles to the circumstances of the present case, we conclude that it would not be reasonable to infer that the defendants waived their right to present their special defenses. In his order, Judge Fracasse specifically requested briefing on “questions of law.” The defendants provided just that. Because the case had been claimed for a trial list, the defendants were justified in believing that they would have an opportunity to present the questions of fact involved in their special defenses at that trial and that the trial court’s request for briefing on questions of law was made in an attempt to determine whether the case could be disposed of primarily without having to reach those factual issues.

If the court had determined that the city did not have the power to condemn, then the defendants would have prevailed without having to prove their special defenses. It was only after the court ruled that the city did, in fact, possess the power to condemn that the defendants’ special defenses came into play. The nine remaining special defenses all contained allegations of fact that would have to be proven in order for the defendants to establish that these takings were not proper.

Because the defendants did not waive their right to present their special defenses, and because the propriety of these takings had not been ruled upon, it was error for the trial court to grant the motion application for appointment of appraisers.

There is no error in the denial of the motion for summary judgment, there is error in the granting of the motion for appointment of appraisers, and the case is remanded for further proceedings consistent with this opinion.

In this opinion the other judges concurred.

       The defendants are David and Brenda Vogelsonger and Charles and Deanna Condon. The Vogelsongers and Condons filed separate appeals based upon identical grounds. The appeals were consolidated, and all four parties were represented at oral argument. Thereafter, on March 7,1990, the Vogelsongers withdrew their appeal. The only defendants remaining, therefore, are Charles and Deanna Condon.

       We note that a denial of a motion for summary judgment is not immediately appealable as a final judgment under Practice Book § 4000, nor is it generally reviewable after a final judgment has been rendered. See Denby v. Voloshin Cadillac, Inc., 3 Conn. App. 181, 181-82 n.3, 485 A.2d 1360, cert. dismissed, 196 Conn. 802, 491 A.2d 1105 (1985). This is premised upon the assumption that the party whose summary judgment motion is denied will then be given a full trial on the merits. See id.; see also Greengarden v. Kuhn, 13 Conn. App. 550, 552, 537 A.2d 1043 (1988).
      This appeal, like the appeal in Denby, was taken after a final judgment was rendered. Ordinarily, the denial of a motion for summary judgment is not reviewable on appeal because even if the motion is improperly denied, the error is not reversible; the result has merged into the subsequent decision on the merits. To hold otherwise would be “to depart from this sound policy which allows a decision based on more evidence to preclude review of a decision made on less evidence.” Greengarden v. Kuhn, supra.
      Because this is an exceptional case where, after the denial of the summary judgment motion, the movant parties were not afforded the opportunity to have a full trial on the merits, we will review this claim.

       Section 2 of Special Act No. 251 (1911) provides the procedure for payment of just compensation and “in case of disagreement between said town . . . and any owner or owners as to such compensation . . . any judge of the superior court may, on application of either party . . . appoint three disinterested persons to examine any such property . . . .” The plaintiff claims this section provided the procedure for them to effectuate a taking.

       Special Act No. 251 (1911) was incorporated into the city’s charter in §48e.


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Joseph Cleveland v. U.S. Printing Ink, Inc., et al.
    (8381)
    Dupont, C. J., Norcott and Foti, Js.
    Argued February 15
    decision released May 29, 1990

      John P. Clarkson, with whom, on the brief, was Robert E. Beach, Jr., for the appellants (defendants).

      Dennis A. Ferdon, for the appellee (plaintiff).
   Dupont, C. J.

The defendants appeal from the decision of the compensation review division affirming the workers’ compensation commissioner’s granting of the plaintiff’s motion to preclude.

The plaintiff, a resident of New Jersey, is a truck driver employed by the named defendant, U.S. Printing Ink, Inc., a New Jersey corporation. In March, 1986, the plaintiff was injured in Connecticut during the course of his employment. He requested and received workers’ compensation benefits for this injury under the New Jersey Workers’ Compensation Act, although no final award was made in that state.

In September, 1986, the plaintiff filed a claim for compensation under the Connecticut Workers’ Compensation Act, General Statutes § 31-275 et seq. He provided the defendants with notice of his claim pursuant to General Statutes § 31-294. When the defendants failed to file notice of their intent to contest liability within twenty days of receipt of notice of the claim, as required by General Statutes § 31-297 (b), the plaintiff filed a motion to preclude the defendants from contesting liability or the extent of the plaintiff’s disability. After the expiration of the twenty day period, the defendants mailed a notice of intent to contest to the commissioner alleging lack of subject matter jurisdiction. After an evidentiary hearing at which the plaintiff was the sole witness, the commissioner found that Connecticut had jurisdiction over the claim and granted the plaintiff’s motion to preclude. The commissioner’s decision was upheld by the compensation review division, which found that the commissioner had properly found “sufficient Connecticut contacts within [the] employment status” to confer subject matter jurisdiction.

The defendants first claim that the commissioner failed to address their challenge to subject matter jurisdiction properly. That challenge is based on the lack of an employer-employee relationship as defined by General Statutes § 31-275 (5) and (6). The defendants correctly assert that they did not waive subject matter jurisdiction by failing to contest liability within the statutory period. General Statutes § 31-297 (b) provides in part: “Whenever liability to pay compensation is contested by the employer, he shall file with the compensation commissioner, on or before the twentieth day after he has received a written notice of claim, a notice . . . stating that the right to compensation is contested. ... If the employer . . . fails to file the notice contesting liability within the time prescribed herein, the employer shall be conclusively presumed to have accepted the compensability of such alleged injury or death and shall have no right thereafter to contest the employee’s right to receive compensation on any grounds or the extent of his disability.” (Emphasis added.)

Although phrased in absolute language, the conclusive presumption of liability contained in § 31-297 (b) does not preclude the employer from challenging the commissioner’s subject matter jurisdiction when the claim is based upon the absence of an employer-employee relationship. Castro v. Viera, 207 Conn. 420, 427, 541 A.2d 1216 (1988). Once the question of jurisdiction in a workers’ compensation case is raised, the commissioner has the duty to resolve it fully before proceeding further with the case. Id., 434.

The commissioner in this case addressed the defendants’ challenge to his jurisdiction at the hearing on the motion to preclude. The parties stipulated that the plaintiff had complied with the statutory requirements for filing the claim and that the defendants had not filed notice of intent to contest within the statutory period. The only issue on which the commissioner heard evidence was subject matter jurisdiction. He did not conclude, as the defendants suggest, that the defendants had waived their right to challenge jurisdiction by failing to comply with the statute. Rather, he granted the plaintiff’s motion to preclude only after expressly concluding that subject matter jurisdiction existed. The real issue, then, is whether the commissioner’s conclusion that jurisdiction existed was supported by the applicable law and the evidence.

The existence of an employer-employee relationship is a threshold requirement for the commissioner’s jurisdiction. Id., 426. The defendants argue that the commissioner could not have found such a relationship because the named defendant is not an employer as defined by the act. General Statutes § 31-275 (5) defines a covered employee as “any person who has entered into or works under any contract of service or apprenticeship with an employer . . . .” Employer is defined in subsection (6) of the same section as “any person, corporation, firm, partnership, voluntary association, joint stock association, the state and any public corporation within the state using the services of one or more employees for pay . . . .” (Emphasis added.) The defendants essentially claim that all the entities listed in subsection (6) must be “within the state” in order to be covered employers within the act.

This argument fails on a plain reading of § 31-275 (6) and in light of existing case law. It is apparent from the language of subsection (6) that “within the state” must have been intended to modify only “public corporations” and not the entire list of entities preceding it. See Bristol v. Vogelsonger, 21 Conn. App. 600, 604-605, 575 A.2d 252 (1990). A contrary reading would lead to the senseless result that “the state,” as one of the listed entities, would be required to be “within the state.” See Texaco Refining & Marketing Co. v. Commissioner, 202 Conn. 583, 595, 522 A.2d 771 (1987).

Moreover, the act has never been interpreted as an absolute bar to jurisdiction over claims involving foreign employers. Connecticut courts have long recognized the jurisdiction of the commissioner, under certain circumstances, to grant workers’ compensation relief to employees of out-of-state employers. See, e.g., Banks v. Howlett Co., 92 Conn. 368, 371, 102 A.2d 822 (1918); Kennerson v. Thames Towboat Co., 89 Conn. 367, 381, 94 A. 372 (1915); see also LaVogue v. Cincinnati, Inc., 9 Conn. App. 91, 516 A.2d 151, cert. denied, 201 Conn. 814, 518 A.2d 72 (1986) (the compensation review division determined that there were sufficient contacts with Connecticut to give Connecticut jurisdiction over the plaintiff’s employment relationship with an Ohio employer).

The defendants next claim that the commissioner and the compensation review division applied the wrong test in concluding that Connecticut had subject matter jurisdiction. They argue that the location of the execution of the employment contract rather than the situs of the accident should be controlling. The plaintiff asserts that the commissioner properly applied an interest analysis to determine jurisdiction.

In Simaitis v. Flood, 182 Conn. 24, 437 A.2d 828 (1980), the strict application of both the place-of-the-employment-contract rule and the place-of-the-injury rule to resolve a choice of law problem was rejected. In Simaitis, the plaintiff and the defendant, both Connecticut residents employed by the same Connecticut employer, were injured in a car accident in Tennessee during the course of their employment. After receiving workers’ compensation benefits in Connecticut, the plaintiff, who had been a passenger in the car, sued the defendant driver for negligence. The defendant argued that the Tennessee Workers’ Compensation Act, which barred tort suits between fellow employees, should be applied.

After reviewing and rejecting both strict contract and tort choice of law theories as contrary to the policy of maximizing an employee’s benefits and remedies, the court adopted the interest analysis set forth in Thomas v. Washington Gas Light Co., 448 U.S. 261, 100 S. Ct. 2647, 65 L. Ed. 2d 757 (1980), as the proper choice of law theory in workers’ compensation cases. Simaitis v. Flood, supra, 32-33. The Simaitis court found that Connecticut had a clear and legitimate interest in compensating an injured resident to the fullest extent and in allowing the Connecticut employer to recover from the defendant amounts already paid to the plaintiff. The court also noted that while Tennessee clearly had an interest in compensating employees injured within its borders and could have compensated the plaintiff had she applied for workers’ compensation benefits in Tennessee, its interest in limiting the liability of a Connecticut employer doing business in Tennessee was not controlling. Id.

While Simaitis involved a conflict of laws problem rather than a question of subject matter jurisdiction, “the two usually coincide, since normally the rights created by the compensation act of one state cannot be enforced in another state.” 4 Larson, Workmen’s Compensation Law § 84, p. 16-1. In its review of the commissioner’s decision, the compensation review division concluded that “subject matter jurisdiction in our worker’s compensation forum should be determined on the basis of the interest analysis recommended by Professor Larson and Sec. 181 of the Restatement (Second), Conflict of Law.” We conclude that the commissioner was correct in applying an interest analysis to the facts of this case to determine the existence of subject matter jurisdiction.

The defendants also claim that even if an interest analysis should have been applied, the commissioner erroneously found that there were sufficient Connecticut contacts to establish jurisdiction. They argue that because the majority of contacts were with New Jersey, the fortuitous occurrence of an injury in Connecticut does not give this state a sufficient interest in compensating the plaintiff, and that New Jersey law should apply.

In a conflict of laws situation where a court must decide which state’s law to apply, it must, based on the relevant contacts, determine which state has the most significant relationship to the occurrence and the parties. Restatement (Second), Conflict of Laws § 145; O’Connor v. O’Connor, 201 Conn. 632, 650-58, 519 A.2d 13 (1986). In determining whether the commissioner has jurisdiction over a workers’ compensation claim, however, the relevant question is whether the forum state has a sufficient interest in compensating the plaintiff. See Simaitis v. Flood, supra, 32.

In his ruling on the motion to preclude, the commissioner found that both the plaintiff and the named defendant were domiciled in New Jersey, that the plaintiff had received workers’ compensation benefits in New Jersey, that the plaintiff spent 30 to 45 percent of his work time in Connecticut, and that the plaintiff was injured in Connecticut during the course of his employment. He concluded that the plaintiff had “enough significant contacts with this State and that therefore Connecticut has an interest in applying its statutes for the protection of working men injured within its borders.”

The commissioner has the power and the duty to determine the facts. Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988). “ ‘The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.’ ” Id.; Castro v. Viera, supra, 440; Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18, 411 A.2d 924 (1979).

It is clear that the interests of New Jersey and Connecticut in compensating the plaintiff coincide. See Simaitis v. Flood, supra, 32. New Jersey has no legitimate interest in preventing Connecticut from supplementing the compensation received by the plaintiff in New Jersey. Thomas v. Washington Gas Light Co., supra, 280; Simaitis v. Flood, supra.

We conclude that the commissioner correctly applied the law, that the facts sufficiently support his decision, and that the compensation review division correctly affirmed that decision.

The defendants finally claim that venue was improper. This claim was presented for the first time on appeal to the compensation review division, which found that it lacked merit. “Venue requirements are created for the convenience of the litigants and may be waived by failure to assert the statutory privilege in a timely fashion.” State v. Orsini, 187 Conn. 264, 269, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982); 77 Am. Jur. 2d, Venue § 45. Subject matter jurisdiction, which cannot be waived, must be distinguished from venue. State v. Orsini, supra. The defendants’ failure to file notice of intent to contest the plaintiff’s claim within the time period required by General Statutes § 31-297 (b) amounted to a waiver of their claim of improper venue. We decline, therefore, to review the claim on its merits.

There is no error.

In this opinion the other judges concurred.

       Traveler’s Insurance Company, the employer’s insurer, is also a defendant.

       The plaintiff received benefits under the New Jersey act of $284 per week for approximately six months. In his ruling on the plaintiff’s motion to preclude, the commissioner found that the plaintiff would be entitled to the maximum rate of $397 per week in Connecticut. The plaintiff seeks the difference between the two in the current claim.

       The definition of employer in the statute in effect at the time that Kennerson and Banks were decided was identical to that in the current statute.

       In Thomas v. Washington Gaslight Co., 448 U.S. 261, 286, 100 S. Ct. 2647, 65 L. Ed. 2d 757 (1980), the United States Supreme Court applied an “interest analysis” to determine that the full faith and credit clause did not preclude the District of Columbia from awarding supplemental workers’ compensation benefits to an employee who had already received compensation in Virginia.

        O’Connor v. O’Connor, 201 Conn. 632, 519 A.2d 13 (1986), further extended the interest analysis adopted in Simaitis v. Flood, 182 Conn. 24, 437 A.2d 828 (1980), to cover choice of law in tort cases generally.

       Section 181 of the Restatement (Second) of Conflict of Laws provides.
      “A State of the United States may consistently with the requirements of due process award relief to a person under its workmen’s compensation statute, if
      (a) the person is injured in the State, or
      (b) the employment is principally located in the State, or
      (c) the employer supervised the employee’s activities from a place of business in the State, or
      (d) the State is that of most significant relationship to the contract of employment with respect to the issue of workmen’s compensation under the rules of §§ 187-188 and 196, or
      (e) the parties have agreed in the contract of employment or otherwise that their rights should be determined under the workmen’s compensation act of the State, or
      (f) the State has some other reasonable relationship to the occurrence, the parties and the employment.”

       The defendants sought additions to the commissioner’s findings in a motion to correct, and now appeal the denial of that motion. The requested additions consisted primarily of specific New Jersey contacts. As we noted previously, the commissioner was not charged with determining which state had the most contacts, but rather with whether Connecticut had sufficient contacts. The requested additions were unnecessary to this determination and the commissioner did not err in denying the motion to corre.et.


author: Per Curiam.

text:
    James G. Hadgkiss et al. v. Sandra Bowe
    (8092)
    Dupont, C. J., Borden and Daly, Js.
    Argued March 13
    decision released May 4, 1990

      Gwen B. Dreilinger, for the appellant-appellee (defendant).

      Donald L. Mackie, for the appellees-appellants (named plaintiff).
   Per Curiam.

The defendant appeals from the judgment of the trial court ordering her to convey certain real property that she had agreed to sell to the named plaintiff. The defendant claims that the trial court erred (1) in finding that March 20,1986, was the operative closing date, and (2) in finding that the plaintiff was ready, willing and able to purchase the property. We find no error.

The court found the following facts. By an agreement dated September 18,1985, the defendant agreed to sell certain real estate to the plaintiff. The contract provided for a mortgage contingency date of February 10, 1986, and a closing date of March 20,1986. By a writing dated February 25,1986, the defendant agreed to extend the mortgage contingency date to March 1, 1986. The mortgage contingency clause was not a condition precedent to the contract because under its terns, if neither party terminated under the clause, the contract remained in full force and effect. Neither party elected to terminate under this clause. There was no closing on the agreed upon date of March 20, 1986, because the defendant had requested a delay until June, 1986, in order to resolve certain problems concerning zoning approval of a portion of the property that she was retaining. On the basis of these findings, the court ordered the defendant to convey the subject property.

The defendant first claims that the court erred in finding that March 20, 1986, was the operative closing date for purposes of determining whether the plaintiff was ready, .willing and able to purchase the property. She argues that this finding was unsupported by the evidence and was contradicted by the uncontroverted testimony of the plaintiff that he had agreed to extend the closing date until June, 1986. We disagree.

The defendant’s argument is flawed because the court did not find March 20,1986, to be the operative closing date. The court’s only finding relevant to the issue is that there was no closing on March 20, 1986, because the defendant had requested a delay until June, 1986. There is nothing, however, in the court’s finding to preclude an implied finding that a June, 1986 closing date was agreed to by the parties after the defendant’s request to extend the time for performance. Indeed, in light of the uncontroverted testimony of the plaintiff that he had agreed to extend the closing date to June, 1986, and absent any further articulation by the court, such a finding is implicit in the court’s conclusion ordering specific performance. If there was any lack of clarity in this respect, it was the defendant’s responsibility to seek further articulation in order to secure an adequate appellate record. Practice Book § 4051. Absent a record demonstrating the court’s reasoning to be in error, we presume it to be correct. DiBella v. Widlitz, 207 Conn. 194, 203-204, 541 A.2d 91 (1988).

The defendant next claims that the court erred in concluding that the plaintiff established that he was ready, willing and able to purchase the property. See Frumento v. Mezzanotte, 192 Conn. 606, 473 A.2d 1193 (1984). The defendant contends that the plaintiff did not have the financial ability to purchase the property either on March 20, 1986, or in July, 1986, when his mortgage commitment had expired. This argument is based on certain evidence regarding the status of the plaintiff’s mortgage commitment. The short answer to this argument is that the court made no express finding regarding a closing date, and there was undisputed evidence that the plaintiff had a valid mortgage commitment from April 2,1986, through the end of June, 1986. Thus, on the basis of the court’s implied finding of a June, 1986 closing date, and absent any articulation precluding such a finding, we read the record so as to sustain the court’s judgment. Dibella v. Widlitz, supra, 203-204.

There is no error on the appeal, the cross appeal is dismissed.

       The plaintiffs are the named plaintiff and Linda F. Hadgkiss. Because the trial court found that Linda Hadgkiss was not a party to the agreement, it rendered judgment of specific performance in favor of the named plaintiff only, and rendered judgment for the defendant as against Linda F. Hadgkiss. We refer to the named plaintiff as the plaintiff.

       The plaintiffs filed a cross appeal, and also presented, pursuant to Practice Book § 4013 (1), certain rulings of the trial court for review as alternate grounds upon which to affirm the judgment and certain adverse rulings to be considered if the defendant were awarded a new trial. The plaintiffs have made clear, however, that they seek review of these matters only if the defendant prevails on the appeal. In view of our disposition of this appeal, therefore, we need not reach these claims.


author: Foti, J.

text:
    State of Connecticut v. Richard A. Whitfield
    (7928)
    Spallone, O’Connell and Foti, Js.
    Argued February 2
    decision released June 5, 1990

      Denise Dishongh, special public defender, with whom, on the brief, was Louis S. Avitabile, special public defender, for the appellant (defendant).

      JuliaDiCoceo Dewey, assistant state’s attorney, with whom, on the brief, were John Connelly, state’s attorney, and Marcia Smith, assistant state’s attorney, for the appellee (state).
   Foti, J.

The defendant appeals from the judgment of conviction, after a jury trial, of sale of a narcotic substance, to wit, heroin, in violation of General Statutes § 21a-277 (a). The defendant claims that the trial court erred in not sua sponte either declaring a mistrial or giving a curative instruction following an improper closing argument. We find no error.

The jury could reasonably have found the following facts. On March 14, 1987, four undercover narcotics officers with the Waterbury police department were assigned to the South Main Street area of Waterbury. While there, one of the officers met John Ruge, a local resident. After the officer told Ruge that he wished to purchase drugs, Ruge took him to Bishop Street where they met Nettra Brown, who was known as Foncie. They told Brown that they were looking for heroin, or dope, and she accompanied them to the corner of Cherry Street and Albert Place.

When the officer parked on Cherry Street, Brown went to an address on Albert Place and returned with the defendant, to whom she referred as Redd. The officer and Ruge each gave the defendant $20 and in return the defendant gave Ruge two glassine packets containing heroin. Ruge immediately gave the officer one of the packets of heroin. The officer held the glassine packet up as if to examine it. This was a prearranged signal that was intended to alert the other three officers that a sale had been completed. One of those officers viewed the entire transaction and, immediately after the glassine bag was raised, contacted the two remaining officers, who made a positive identification of the defendant.

The defendant claims that he was deprived of his fundamental right to a fair trial by prosecutorial misconduct during closing arguments to the jury. In particular he contends that the prosecutor’s argument was improper in that it (1) distorted the state’s burden of proof, (2) appealed to the jury’s passions and prejudices concerning illegal drugs and thus injected irrelevant considerations into the case, and (3) vouched for the credibility of the state’s witnesses and the strength of the state’s case.

The defendant failed to object to the prosecutor’s conduct during the course of the trial, and neglected to request either curative instructions or a mistrial. Because the defendant raises this claim on appeal for the first time, we must decide, as a preliminary matter, whether this claim is reviewable under State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973). Our Supreme Court has held “that a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of only one of these conditions, the defendant’s claim will fail. The appellate tribunal is free, therefore, to respond to the defendant’s claim by focusing on whichever condition is most relevant in the particular circumstances.” State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

In the present case, we will review the defendant’s claim to determine whether the alleged constitutional violation clearly exists and whether it deprived the defendant of a fair trial. State v. Torrence, 196 Conn. 430, 435, 493 A.2d 865 (1985).

Our Supreme Court has held that “prosecutorial misconduct of constitutional proportions may arise during the course of closing argument, thereby implicating the fundamental fairness of the trial itself; State v. Williams, 204 Conn. 523, 539, 529 A.2d 653 (1987); State v. Pelletier, 196 Conn. 32, 33-34, 490 A.2d 515 (1985); [but] Evans review of such a claim is unavailable where the claimed misconduct was not blatantly egregious and merely consisted of isolated and brief episodes that did not reveal a pattern of conduct repeated throughout the trial. State v. Rodgers, 207 Conn. 646, 654, 542 A.2d 1136 (1988); State v. Williams, supra, 537; State v. Chace, 199 Conn. 102, 107-108, 505 A.2d 712 (1986); State v. Tyler-Barcomb, 197 Conn. 666, 672-74, 500 A.2d 1324 (1985), cert. denied, 475 U.S. 1109, 106 S. Ct. 1518, 89 L. Ed. 2d 916 (1986).” State v. Somerville, 214 Conn. 378, 393, 572 A.2d 944 (1990).

The defendant asserts that the first of three incidents of misconduct occurred when the prosecutor allegedly shifted the state’s burden of proof by commenting on alleged perjury by the defendant’s witnesses. The defendant argues that his closing argument stressed mistaken identity and did not invite the prosecutor’s mention of perjury.

The record indicates that during a lengthy summation, the prosecutor told the jurors that they should take the law as given by the court, that they were the ultimate finders of fact, and that it was their recollection of the facts that mattered. In arguing she discussed her recollection of the facts and stated that the defendant had presented a defense of mistaken identity. She then cautioned the jurors that although police officers’ testimony should not be given additional credit simply because of their status, their training and experience should nonetheless be fully assessed by jurors when deliberating. She then commented that one of the defendant’s witnesses, namely “Mr. Ruge would have us believe four policemen sat there and absolutely perjured themselves.”

The second of the three alleged incidents of misconduct, the defendant claims inflamed the prejudices of the jury, occurred when the prosecutor twice referred to the heroin as “poison” and stated that the bag of heroin was in the courtroom because of the efforts of the undercover officer, otherwise “it would have been doing its damage in the arms of . . . a junkie . . . .”

The last of the alleged incidents of misconduct is the defendant’s claim that the prosecutor improperly vouched for the credibility of state witnesses. This supposedly occurred during closing arguments when the prosecutor said that she did not believe “any of those officers would do such a thing,” that is, take the stand and perjure himself. This was in response to the defendant’s argument that the officers were locked into their testimony and may have manufactured some of that testimony.

We conclude that the defendant’s claim does not support the clear existence of a violation of the defendant’s constitutional rights or his right to a fair trial.

These unpreserved claims of prosecutorial misconduct do not fall within the category of being either blatantly egregious or part of a pattern of misconduct repeated throughout the trial. See State v. Sinclair, 20 Conn. App. 586, 598-99, 569 A.2d 551 (1990); State v. Horne, 19 Conn. App. 111, 128, 562 A.2d 43 (1989). Accordingly, we decline to review these claims of error further.

There is no error.

In this opinion the other judges concurred.

       The defendant raises for the first time in his reply brief and at oral arguments a “pattern of misconduct” by the prosecutor and seeks to present other pending appeals to demonstrate a formula for argument to the jury constituting prepared remarks that buttress his claims of misconduct in final summation. We will not review a claim that has not been properly raised. State v. Anderson, 209 Conn. 622, 633, 553 A.2d 589 (1989).

       The relevant portion of the state’s argument is as follows: “However, I think it’s fair you look at the defense in this case because the people of this state are not interested in having an innocent man found guilty. I think we should look to the defense. We had Mr. Ruge. Mr. Ruge would have us believe four policemen sat there and absolutely perjured themselves. That’s the only thing we can get from Mr. Ruge’s testimony. Mr. Ruge says he never got into a car on South Main Street. In fact, I think he said he never was down there. He never went up to Bishop Street. He doesn’t know Nettra Brown. He never bought heroin. So we are not now just talking about mistaken identity. He didn’t get on the stand and say, ‘Yeah, I bought heroin, not from this guy.’ He said none of this ever happened. The cops made the whole thing up, as if he would have us believe the police made this up. I leave to you what you believe of Mr. Ruge’s testimony and how credible you feel it is.
      “When Mr. Ruge testified, I brought to your attention that he had prior criminal convictions. And I did this because I believe the law—and I believe we all believe people who commit burglaries are sometimes considered people who are not honest. By its very nature, it’s that kind of crime. It’s not a crime of passion. It’s a crime really of dishonesty. We also think that people who commit felonies—and he had a prior felony conviction as well as his two prior burglary convictions—people commit felonies, they are sometimes considered maybe less reliable. And I submit to you because—and it is how reliable you felt any part of his testimony was.
      “And you may recall Detective W. says he’s known Ruge. Even Ruge admitted he knew Detective W. for a long time. [Officers] P. and D. said they knew Ruge. In fact, D. gave a perfect description, as I recall, of Ruge. Of course, they knew Ruge. Of course, they knew Nettra Brown. I don’t know why Ruge would like us to believe that this was all some kind of giant lie—I think I know why he would like us to believe, but I don’t know how he can expect us to. You have not one shred of evidence that the Waterbury police were out to get this man for any particular reason.”

       The relevant portion of the state’s argument is as follows: “The defendant said there is a good probability that he wasn’t working that day. And I suggest to you he was working. He was on the street that day selling to Nettra Brown this bag of poison. And, ladies and gentlemen, make no doubt about it. This bag contains poison.
      “I guess I’m going to finish very quickly. I do have another chance to speak to you when Miss Moore gets through. I just wanted to say one thing because you’re good people and you have sometimes compassion or sympathy for a person who’s on trial. And I understand that. But I suggest to you that if you believe beyond a reasonable doubt that this defendant is guilty, there is no need to have any sympathy for this situation. The only reason that this bag of heroin is here today in this courtroom is because Officer D. was a member of the Waterbury Police Department. Otherwise, it would have been doing its damage in the arms of what he thought was probably a junkie, namely, Officer D. Officer D. was out there as just a junkie about to buy this little bag for $20, which is nothing but poison.”

       The relevant portion of the state’s argument is as follows: “But I must instantly take umbrage with something [defense counsel] said because I really find—as I said, I think you’ll be told by Judge Lavery that you cannot believe a police officer simply because he’s a police officer—but she has asked you just now to disbelieve a police officer simply because they are police officers. I believe she said they are going to take the stand and they are going to say things just because they—an arrest must be made to stick, or whatever her words were. And I do take umbrage with that. It is very difficult for me to believe that a man of twenty-seven years experience went on that witness stand and with absolute certainty identified this man, not by name—he didn’t identify a name or anything else. He said that’s the man I saw as Redd. That’s the man who, one week before the transaction, was pointed out to him as Redd. This is a man whom he arrested. He had the warrant on this case. He arrested him on Cherry Street, not on Albert Street, but on Cherry Street because he recognized him. And now she’s saying Detective Wallace took this stand and perjured himself to us.
      “I take umbrage with that. I do not believe any of those police officers would do such a thing. There is no evidence in this case at all for some reason, the Waterbury Police Department has fabricated this case against this man by their own testimony. And that day they did not even know who he was.”

       The relevant portion of the defense argument is as follows: “I have to say also that, in fact, I’ve known Mr. Whitfield now over a year and in the time that I’ve known him, he’s had one very distinct characteristic. He had it the day I met him. He has it today. He's had it for every day in between and that is he has a beard. It’s very small, close cropped, but it’s a beard. That beard is such a general characteristic that if, in fact, it had been my client that day, that would have been easily enough—there is no mention of facial hair whatsoever. The only evidence is clean shaven. If they said clean shaven, that would have been even a more particular description, then you would know you’re not looking for anybody with facial hair. All they say is five ten, black male, heavy set, dark clothing. I want you to think of how many people in the world that could fit into. He has some other characteristics, but I’m going to give them the benefit of the doubt and say maybe they couldn’t get those because they haven’t observed him the way I’ve observed him. They haven’t worked with him the way I’ve worked with him, but the facial hair is a dead giveaway, but I’m suggesting to you in the amount of time that they had, they couldn’t give you any more identification than what they have because that’s all they have, five ten, heavy set, black male. Not enough. And the only reason they connect Mr. Whitfield is by that phone call, I suggest.
      “Now, you say to yourselves, Okay, they came in here. They only had a few seconds to identify the party, but they all sat in that box and they all pointed to this man and said he’s the one I saw. Why would they do that if he wasn’t the one? There are many reasons. I suggest one. These gentlemen are police officers. They have a very difficult job. I don’t discredit that. They put themselves out there on the street every day on the line. God knows what may face them. But their jobs include making arrests. And once they have made that arrest, once they have viewed the person, they have to say we believe that this is the person. We have got the correct person. They have to come in and say that’s the person because to say that’s not the person would invalidate this whole system.
      “How would it be if they came into the courtrooms, take that stand and say, ‘Gee, we made a mistake?’ That would waste the court’s time. The prosecutor is only doing her job. She’s got four people who are saying to her that’s the guy. Fine, that’s the guy, let’s go with it. Let’s bring the case to the court. Let’s bring it to the jury. Let’s work on it. But those police officers made that identification, made that connection based on a few seconds identification. Once they have made the connection, they have to live with it.”


text:
    Julie Lewin et al. v. United States Surgical Corporation et al.
    (8010)
    Dupont, C. J., Foti and La very, Js.
    Argued January 9
    decision released June 5, 1990

      Bruce S. Beck, with whom were Margaret C. Radionovas and, on the brief, Martin D. Wheeler and Kathleen Eldergill, for the appellants (plaintiffs).

      Bruce R. Genderson, with whom were Diana L. Schacht, JohnD. Mahaney and, on the brief, Daniel J. Mahaney, for the appellee (named defendant).

      Andrea B. Gaines, assistant attorney general, with whom, on the brief, was Clarine Nardi Riddle, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (defendant department of health services).
   Foti, J.

The plaintiffs appealed to the Superior Court pursuant to General Statutes § 4-183 (b) from a decision of the defendant commissioner of the department of health services finding that the defendant United States Surgical Corporation’s (Surgical) use of dogs complied with state statutes and regulations. The Superior Court dismissed the plaintiffs’ appeal for lack of aggrievement and they now appeal to this court.

Pursuant to General Statutes § 4-176, the plaintiffs, Julie Lewin and the Fund for Animals, requested that the commissioner of the department of health services render a declaratory judgment to determine whether Surgical’s use of live dogs to demonstrate the use of surgical staples after surgery violates the permissible uses of dogs for scientific and educational purposes as set forth in General Statutes § 22-332b. After a full hearing before the department of health services, the deputy commissioner issued a declaratory judgment finding that Surgical’s use of live dogs was “essential,” and therefore within the uses allowed under § 22-332b.

Both the department of health services and Surgical filed motions to dismiss the plaintiffs’ appeal claiming lack of aggrievement. The plaintiffs thereafter amended their complaint and filed a motion to undertake discovery. The Superior Court held a hearing on the issue of aggrievement, denied the plaintiffs’ discovery motion, and granted the defendants’ motions to dismiss for lack of aggrievement.

The plaintiffs assign a variety of errors to the court’s granting the defendants’ motions to dismiss, but, for the purposes of our discussion, the issue of aggrievement is dispositive.

“Pleading and proof of aggrievement is a prerequisite to a trial court’s jurisdiction over the subject matter of an appeal. Beckish v. Manafort, 175 Conn. 415, 419, 399 A.2d 1274 (1978). Unless a party can establish aggrievement, that party has no standing to appeal. General Statutes § 4-183 (a).” Blau v. State Board of Education, 19 Conn. App. 428, 430, 562 A.2d 586, cert. denied, 212 Conn. 816, 565 A.2d 534 (1989). The burden of proving aggrievement rests with the plaintiffs who have claimed it. Hartford Distributors, Inc. v. Liquor Control Commission, 177 Conn. 616, 622, 419 A.2d 346 (1979). Mere status as a participant or a party at a hearing before an administrative agency does not, in and of itself, constitute proof of aggrievement for the purpose of appellate review. Id., 620.

Aggrievement, when not based upon a specific statute, is determined by way of a well settled twofold test. First, the plaintiffs must successfully demonstrate a specific, personal and legal interest in the subject matter of a decision. Second, they must successfully establish that this interest has been specially and injuriously affected by the decision. Mystic Marinelife Aquarium, Inc. v. Gill, 175 Conn. 483, 493, 400 A.2d 726 (1978). Further, an aggrieved party must have a claim that is distinguishable from the concerns of the community at large. Id.

In the^ present case, the plaintiffs have alleged that they are aggrieved parties, but they have failed to present any proof of a specific, personal and legal interest in Surgical’s experimental use of dogs. Although the plaintiffs filed numerous affidavits with the Superior Court to support their claim of aggrievement, the affiants’ assertions amount to no more than speculative fears. Their assertions can be summarized as follows: I am a member of Friends of Animals; I own a dog; my dog may one day be lost or stolen and may then fall into the hands of a dog broker who supplies animals to laboratories; and Surgical may eventually gain possession of my dog. The plaintiffs also presented evidence at the aggrievement hearing. A thorough review of the record, however, indicates that none of the evidence presented connects the plaintiffs’ pets to Surgical or gives rise to any other legitimate specific, personal and legal interest of the plaintiffs.

The concerns the plaintiffs express here cannot be distinguished from those held by the community as a whole. These concerns have already been addressed in numerous laws and regulations, placed in effect by our legislators and government officials, directing the state and its agencies to regulate the use of dogs for educational or scientific purposes. See, e.g., General Statutes §§ 22-332a, 22-332b, 22-332c; Regs., Conn. State Agencies §§ 22-332b-l through 22-332b-ll. For this court to allow the plaintiffs to pursue their claim would be to ignore this legislative scheme.

The plaintiffs have not sustained their burden of proof on the issue of aggrievement. We conclude that the trial court did not err in dismissing their appeal.

There is no error.

In this opinion the other judges concurred.

       The following parties are also named as defendants in this action: the department of health services of the state of Connecticut; Frederick G. Adams, commissioner of the department of health; Dennis F. Kerrigan, deputy commissioner of the department of health; and Jesse S. Tucker, director of the laboratory division of the department of health.

         In addition to Julie Lewin and the Fund for Animals, Sarah Seymore and the Friends of Animals are also plaintiffs in this action.

       The plaintiffs further argue that they were denied the opportunity to prove facts necessary to establish aggrievement when the Superior Court denied their motion for discovery.
      “The granting or denial of a discovery request rests in the sound discretion of the court.” Standard Tallow Corporation v. Jowdy, 190 Conn. 48, 57, 459 A.2d 503 (1983). In an administrative appeal, “[t]he opportunity to present evidence in addition to that contained in the record is reserved for extraordinary cases.” Ierardi v. Commission on Human Rights & Opportunities, 15 Conn. App. 569, 584-85, 546 A.2d 870, cert. denied, 209 Conn. 813, 550 A.2d 1082 (1988). In the present case, the Superior Court conducted a full evidentiary hearing on the question of aggrievement before denying the plaintiffs’ motion to discover additional information to prove aggrievement. In view of the record before us, we cannot conclude that the Superior Court abused its discretion in denying the plaintiffs’ motion for discovery.


author: Borden, J.

text:
    Pasqualina Merola et al. v. J. William Burns, Commissioner of Transportation, et al.
    (8031)
    Borden, Daly and Lavery, Js.
    Argued February 7
    decision released May 4, 1990

      John T. Grillo, with whom, on the brief, was Albert R. Annunziata, for the appellants (plaintiffs).

      Raymond J. Ploujfe, Jr., for the appellee (named defendant).

      Patricia A. Cofrancesco, assistant corporation counsel, for the appellee (defendant city of New Haven).
   Borden, J.

The plaintiffs appeal from the judgment of the trial court following the court’s granting of motions for directed verdict filed by the defendants. The plaintiffs claim that the court erred in directing the verdict and in making two evidentiary rulings. We find no error.

On July 18,1983, the plaintiff fell at the intersection of Oakly Street and Frontage Road in New Haven. Oakly Street, a town road, runs in a generally north-south direction. Frontage Road, a state highway, runs generally east and west. Oakly Street, east of its intersection with Frontage Road, leads to an eastbound ramp connecting to 1-95. The Oakly Street-Frontage Road intersection is north of the intersection of Oakly Street and Main Street.

The plaintiff gave timely notice of her fall to both the city of New Haven and the state commissioner of transportation. The notice described the place of the accident as follows: “On Oakley [sic] Street, at a location north of Main Street, and approximately 4 feet 6 inches east of U.I. Company pole number 6516, approximately 18 feet west of the westerly curb of the median on Oakley [sic] Street and approximately 56 feet south of the northerly curb of the 1-95 highway ramp.” The notice further described the defect giving rise to the accident as follows: “A depression-hole in said street measuring approximately 2 feet long, five inches wide and two and one-quarter inches deep, causing a hazardous condition for pedestrians walking without benefit of a sidewalk at said location.”

Thereafter, the plaintiff sued both the commissioner and the city of New Haven, pursuant to General Statutes §§ 13a-144 and 13a-149, respectively. As against each defendant, the plaintiff alleged that she fell while walking on the west shoulder area of Oakly Street, north of its intersection with Main Street, that there were no sidewalks on Oakly Street, and that the sole proximate cause of her injuries was the breach of the particular defendant’s statutory duty to maintain the roadway. At the end of the plaintiff’s case, the court directed verdict for the defendants on two grounds. First, the plaintiff had not introduced sufficient evidence to prove that the location of the defect that had caused her to fall was the same as that described in her notice, and, second, because the plaintiff had sued the two defendants in the alternative and because she had the burden of proving that the liability of either was the sole proximate cause of her injuries, she had not introduced sufficient evidence to prove which governmental defendant had the duty to maintain the highway where she had fallen. After the court denied the plaintiffs motion to set aside the verdict, this appeal followed.

The plaintiff’s two evidentiary claims of error involve evidence tending to show that the city was responsible for maintaining the area where she fell. At oral argument in this court, the plaintiff conceded that, even if she were to prevail on those two claims, the directed verdict in favor of the city of New Haven was proper. This concession renders it unnecessary for us to consider the plaintiffs appeal regarding that defendant, including the evidentiary claims. We turn, therefore, to the plaintiffs claims of error regarding the directed verdict in favor of the commissioner.

The standard of review of directed verdicts is well settled. A directed verdict is justified if on the evidence the jury could not reasonably and legally have reached any other conclusion. Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986); Golembeski v. Metichewan Grange No. 190, 20 Conn. App. 699, 701, 569 A.2d 1157 (1990). On reviewing the action of the trial court in first directing and thereafter refusing to set the verdict aside, the evidence must be considered in the light most favorable to the plaintiff. Morales v. Trinity Ambulance Service, 9 Conn. App. 386, 387-88, 519 A.2d 90 (1986), cert. dismissed, 202 Conn. 806, 520 A.2d 1287 (1987). While it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven; Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 529, 562 A.2d 1100 (1989); it may not resort to mere conjecture and speculation. Burke v. West Hartford, 147 Conn. 149, 151-52, 157 A.2d 757 (1960). If the evidence would not reasonably support a finding of the particular issue, the trial court has a duty not to submit it to the jury. Souper Spud, Inc. v. Aetna Casualty & Surety Co., 5 Conn. App. 579, 584, 501 A.2d 1214 (1985), cert. denied, 198 Conn. 803, 503 A.2d 172 (1986).

The plaintiff claims that the court erred because sufficient evidence was introduced to prove that the location of the highway defect in question comported with that described in her statutory notice, and that the commissioner had the statutory duty to maintain that portion of the highway where the defect existed. We conclude that, although the plaintiff sufficiently proved the location of the highway defect in question to be in accordance with her statutory notice, she failed to introduce sufficient evidence to prove that the commissioner was responsible for maintaining that portion of the highway where the defect existed.

With respect to location of the defect, there was sufficient evidence from which the jury could infer that the plaintiff fell because of the defect at the location described in her notice. There was evidence that as the plaintiff was rounding the bend from Frontage Road onto Oakly Street, she fell because of a crack in the pavement that was approximately two feet long and five inches wide. There were also photographs of the intersection, showing a utility pole located in the grass abutting the cracked pavement, and a median at the intersection of Frontage Road and Oakly Street east of the pole and the cracked pavement. The plaintiff testified that the place of her fall was approximately three or four feet into Oakly Street from the bend in the road, and she indicated that location by a mark on one of the photographs of the intersection. There also was evidence that most of the pavement was cracked in that area, that the particular crack in question was approximately two feet from the edge of the grass bordering the pavement, and that there was an electric utility pole located in the grass approximately two feet from the edge of the pavement. Further, there was evidence that the pole number near the defect matched the pole number stated in the notice.

This evidence was sufficient for the jury to infer that the place and cause of the plaintiffs fall were generally those specified in the notice, namely, on Oakly Street, north of Main Street, approximately four feet east of utility pole number 6516 and west of the west curb of the median located at the intersection of Oakly Street and Frontage Road. It is true that the plaintiff was required to prove that the defect alleged in her notice was the sole proximate cause of her injuries; see Krooner v. Waterbury, 105 Conn. 476, 481, 136 A. 93 (1927); and that General Statutes § 13a-144, as a statutory action, must be strictly construed. Ozmun v. Burns, 18 Conn. App. 677, 680, 559 A.2d 1143 (1989). That does not mean, however, that her proof was required to match her notice with exactitude. See Krooner v. Waterbury, supra, 480-81.

Whether the proof is within the scope of the notice must be determined with reference to the language and purpose of General Statutes § 13a-144. Id., 481. General Statutes § 13a-144 requires that the notice of the plaintiffs injury contain “a general description . . . of the cause thereof and of the time and place of its occurrence . . . .” (Emphasis added.) The purpose of the statutory notice is to give the commissioner sufficient information to permit him to make proper inquiry and investigation in order to protect his interest, and to give him a reasonable guide to such inquiry and investigation as is helpful for his protection. Morico v. Cox, 134 Conn. 218, 223, 56 A.2d 522 (1947); Shine v. Powers, 37 Conn. Sup. 710, 711-12, 435 A.2d 375 (1981). “ ‘[SJufficiency [of notice] is to be tested with reference to that purpose, and in applying the test the circumstances of each case are to be considered. If, under the circumstances of a given case, the notice is sufficient for its intended purpose, it will be regarded a good notice.’ Delaney v. Waterbury & Milldale Tramway Co., 91 Conn. 177, 181, 99 Atl. 503 [1916]. The breadth of proof under the complaint may not be permitted to go beyond such defects as are fairly embraced within the notice so construed . . . .” Krooner v. Waterbury, supra.

Evaluating the plaintiffs evidence in light of these principles, and construing her notice accordingly, we conclude that the plaintiff’s evidence locating the defect was “fairly embraced within the notice so construed.” Id. Moreover, under the facts of this case, it was not fatal to the plaintiff’s case that there was no evidence of the other two dimensions stated in the notice, namely, approximately eighteen feet west of the west curb of the median and approximately fifty-six feet south of the north curb of the 1-95 highway ramp. Those dimensions provided additional particularity by which the commissioner could locate the alleged defect for purposes of his investigation. The plaintiff, however, was not required to introduce evidence of those specific dimensions, as long as the evidence that was introduced was sufficient to establish the location of the defect within the general terms of the notice.

The plaintiff also claims that the court erred in directing a verdict in favor of the commissioner on the ground that she did not prove that the defect existed on that portion of the highway that the commissioner had the duty to maintain. We disagree.

As indicated above, the accident occurred at the intersection of a state highway, Frontage Road, and a town road, Oakly Street. For the commissioner to be held liable, the plaintiff was required to establish that the breach of his statutory duty was the sole proximate cause of her injuries. Williamson v. Commissioner, 209 Conn. 310, 318, 551 A.2d 704 (1988). It follows, therefore, that the plaintiff had the burden of proving that the commissioner had the statutory duty to maintain the portion of the roadway where the defect was located.

The plaintiffs evidence was that she was walking east on the south edge of Frontage Road and that she fell as she rounded the bend from Frontage Road onto Oakly Street. The plaintiff described the location of the defect as approximately three or four feet in from the bend on Oakly Street, and marked that area on a photograph of the intersection. That mark on the photograph indicates that the location of the defect was on the bend from Frontage Road to Oakly Street, near the utility pole. The photographs and maps in evidence indicate that the intersection of the two roads is not well defined, and that the two roads do not intersect at right angles. Rather, the south edge of Frontage Road curves in a southerly direction and at some undefined location blends into the west edge of Oakly Street. There is a triangular median in the intersection that extends from approximately the center line of Frontage Road to a short distance into Oakly Street. There is, however, no line of demarcation indicating precisely where Oakly Street ends and Frontage Road begins. The plaintiff also introduced a response by the commissioner to an interrogatory in which the commissioner admitted that “[t]he area where the plaintiff allegedly fell is within the state right-of-way.” On the' basis of this evidence, therefore, it is fair to say that while the defect existed on the bend in the road at the intersection of Frontage Road and Oakly Street, no further particularity of the location could reasonably be inferred. That is, it was unclear whether the defect was solely on Frontage Road, solely on Oakly Street or at the intersection of the two roads.

Three statutes are involved in this case. General Statutes § 13a-149 imposes liability on a municipality for defective roads or bridges that it is “bound to keep . . . in repair.” General Statutes § 13a-144 imposes liability on the commissioner for defective highways “which it is the duty of the commissioner of transportation to keep in repair . . . .” Under these two statutes, therefore, whether a municipality or the commissioner is found liable for injuries caused by a defective road or highway, depends on who has the duty of keeping that particular road or highway in repair. Thus, under this statutory scheme, the commissioner would be responsible for the defect if it was on Frontage Road, and the city of New Haven would be responsible for the defect if it was on Oakly Street.

Where, however, a town road and a state highway intersect, as in this case, a third statute applies. General Statutes § 13a-99a governs the allocation of ownership of town-state intersections. General Statutes § 13a-99a, which is entitled “Town roads lying within, intersecting or crossing state highway rights-of-way,” provides: “(a) Whenever a town road or a portion thereof lies within the limits of a state highway right-of-way or passes over or under a state highway right-of-way, such road or portion thereof shall be state highway property subject to an easement to the town for travel.” Thus, where a state highway right-of-way covers some portion of a town road, the state owns that portion of the town road subject to an easement to the town for travel.

The allocation of ownership between the state and town under § 13a-99a (a), however, does not control the allocation of the duty to maintain an intersection of a state highway and a town road. That allocation is made pursuant to § 13a-99a (c). That subsection provides in pertinent part as follows: “When a town road crosses or intersects a state highway right-of-way at grade level, the responsibility for maintenance of that portion of the town road from the edge of the state highway right-of-way to the edge of traveled portion of the state highway shall remain with the town; and any liability for neglect or default of maintenance of such portion of the town road shall be in accordance with section 13a-149.” (Emphasis added.) As the language of this statute indicates, a state highway right-of-way does not necessarily coincide with the traveled portion of the state highway. Indeed, as the map in evidence in this case discloses, the width of the state highway right-of-way may very well exceed the traveled portion of the state highway. The traveled portion of a road or highway is that part of the highway that is constructed so as to be intended for travel; see Kurtz v. Morse Oil Co., 114 Conn. 336, 341, 158 A. 906 (1932); and includes the shoulders of the highway. Griffith v. Berlin, 130 Conn. 84, 87, 32 A.2d 56 (1943).

Where a state highway and town road intersect at grade level, as in this case, General Statutes § 13a-99a (c) expressly allocates the responsibility for maintenance of a certain portion of the intersection to the municipality, namely, “that portion of the town road from the edge of the state highway right-of-way to the edge of the traveled portion of the state highway . . . .” By implication, the statute allocates the responsibility for maintenance of the balance of the intersection to the commissioner, namely, that portion of the intersection that constitutes the traveled portion of the state highway. Put another way, at an intersection of a town road and state highway, the town has the duty to maintain, not only the portion of the town road that is outside of the state highway right-of-way, but also that portion of the town road that is within the state highway right-of-way exclusive of the traveled portion of the state highway. Thus, the commissioner has the duty to maintain only the traveled portion of the state highway.

It is apparent, therefore, that where a plaintiff elects to sue the commissioner for injuries incurred as a result of a defect existing at an intersection of a state highway and town road, the plaintiff must establish that the defect existed not only within the state highway right-of-way, but also within the traveled portion of the state highway. That necessarily means that such a plaintiff must establish the location of the defect with respect to the location of the traveled portion of the state highway and not simply with respect to the state highway right-of-way. That, in turn, requires that the plaintiff establish the location of the defect with respect to the line of demarcation between the traveled portion of the state highway and the town road.

We conclude that the plaintiff failed to remove the location of the edge of the traveled portion of the state highway from the area of jury speculation, and thus failed to establish that the defect existed both within the state highway right-of-way and within the traveled portion of the state highway. She did produce enough evidence from which the jury could have inferred that the defect was within the state highway right-of-way and that the defect was in the traveled portion of either a town road or a state highway.

The plaintiff failed, however, to produce enough evidence to support a finding that the defect existed on the traveled portion of Frontage Road, which the state had the duty to maintain, as opposed to the traveled portion of Oakly Street, which the town had the duty to maintain. Because the line of demarcation between the traveled portion of Oakly Street and Frontage Road was never established, and because the plaintiffs evidence, taken at its best, located the defect somewhere at the curve of the west edge of that intersection, the jury would have been required to speculate regarding whether the defect existed either (1) within the traveled portion of Frontage Road, in which case the commissioner would have been liable, or (2) within the traveled portion of Oakly Street between the state highway right-of-way line and the edge of the traveled portion of Frontage Road, in which case the city would have been liable. Neither the maps, the photographs, nor the testimony received into evidence was sufficient to take that issue out of the realm of speculation. See Burke v. West Hartford, supra.

The plaintiff argues that a certain “X” mark appearing on a state highway map introduced by her, taken together with the commissioner’s admission that the place of the alleged incident was within the state highway right-of-way, sufficiently supports an inference to avoid a directed verdict in favor of the commissioner. We disagree. It is true that the mark appears on a map produced by the commissioner in response to the plaintiff’s request for a map “of the site of the alleged incident.” It is also true that the mark corresponds to the general location of the defect as alleged in her notice and complaint. There was no evidence, however, of the purpose or intended meaning of the mark, and its unexplained presence on the commissioner’s map was an insufficient basis for a rational inference regarding it. More significant, there was no evidence that its location on the map was within the traveled portion of Frontage Road. Thus, this unexplained part of the exhibit added nothing to support the plaintiff’s proof that the commissioner had a statutory duty to maintain that portion of the road where the defect existed.

There is no error.

In this opinion the other judges concurred.

       The plaintiffs are the named plaintiff and her husband, Anthony Merola. We refer herein to the named plaintiff as the plaintiff.

       The defendants are the state commissioner of transportation and the city of New Haven.

       General Statutes § 13a-149 provides in pertinent part: “Any person injured in person . . . by means of a defective road or bridge may recover damages from the party bound to keep it in repair.”

       General Statutes § 13a-144 provides in pertinent part:. “Any person injured in person . . . through the neglect or default of the state or any of its employees by means of any defective highway . . . which it is the duty of the commissioner of transportation to keep in repair . . . may bring a civil action to recover damages sustained thereby against the commissioner in the superior court.”


author: O’Connell, J. Borden, J.,

text:
    In re Jesus C.

    (8028)
    Borden, Daly and O’Connell, Js.
    Argued January 17
    decision released May 4, 1990

      Mary Miller Haselkamp, deputy assistant public defender, with whom was Temmy Ann Pieszak, assistant public defender, for the appellant (defendant).

      Mitchell S. Brody, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, John OMeara, deputy assistant state’s attorney, Bernard D. Kennedy, deputy assistant state’s attorney, and Harry Weller, assistant state’s attorney, for the appellee (state).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open 'for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   O’Connell, J.

The defendant appeals from the judgment of adjudication as a youthful offender, pursuant to General Statutes § 54-76g, by virtue of his commission of the crime of using a motor vehicle without the owner’s permission in violation of General Statutes § 53a-119b. He claims that the trial court erred (1) in refusing to strike the testimony of two police officers, (2) in admitting a police report into evidence, and (3) in denying the defendant’s motion to recuse. We find error.

The following facts are relevant to this appeal. On September 27, 1988, New Haven police officer Sal Rivera noticed three individuals in or around a parked car. Rivera observed that their attention was focused on the car’s steering column. Shortly thereafter, the three individuals became aware of Rivera’s presence and took flight, running down the street and between some buildings. Suspecting that the car might be stolen, Rivera gave chase on foot. During the pursuit, he used his portable police radio to transmit a description of the individuals and what had just transpired.

Rivera’s broadcast was heard by Officer Anthony DeLucia, who was in a patrol car about two blocks from the scene. Just after hearing the report, DeLucia saw three individuals run across the street in front of him. DeLucia radioed that he had Rivera’s subjects in sight, and then left his car to pursue them on foot. He soon located the defendant in the kitchen of a nearby home. Rivera arrived a few moments later, identified the defendant as one of the persons who had run from him, and placed him under arrest. A second suspect was found hiding under the stairs in the basement, but the third was never found.

I

The defendant’s first claim is that the trial court erred in refusing to strike the testimony of Rivera and DeLucia because of the state’s failure to produce the tapes of the officers’ radio broadcasts. This claim arises in the following context. Shortly after entering a plea of not guilty, the defendant filed a discovery request seeking, inter alia, copies of all witness statements relevant to his case. Following each officer’s trial testimony, the defendant moved, pursuant to Practice Book § 752, for the production of the broadcast tapes on the grounds that they were statements within the meaning of Practice Book § 749. The recordings were unavailable, however, because the New Haven police department had erased and reused the tapes thirty-seven days after the defendant’s arrest and a few days prior to the defendant’s pretrial request. The trial court denied the defendant’s motion to strike.

This is not the first occasion where, on appeal, Connecticut courts have been required to consider the implications of the New Haven police department’s failure to preserve tapes of witness statements. See, e.g., State v. Johnson, 214 Conn. 161, 571 A.2d 79 (1990); State v. Kelly, 208 Conn. 365, 545 A.2d 1048 (1988); State v. Santangelo, 205 Conn. 578, 534 A.2d 1175 (1987); State v. Mullings, 202 Conn. 1, 519 A.2d 58 (1987); State v. Myers, 193 Conn. 457, 479 A.2d 199 (1984); State v. Shaw, 185 Conn. 372, 441 A.2d 561 (1981), cert. denied, 454 U.S. 1155, 102 S. Ct. 1027, 71 L. Ed. 2d 312 (1982); State v. Williamson, 14 Conn. App. 108, 552 A.2d 815, aff’d, 212 Conn. 6, 562 A.2d 470 (1989); State v. Sims, 12 Conn. App. 239, 530 A.2d 1069 (1987), cert. denied, 206 Conn. 801, 535 A.2d 1315 (1988). It is settled that the state cannot avoid its obligations under the rules of practice governing discovery by destroying discoverable material prior to a defendant’s motion for production, and, in appropriate circumstances, the affected testimony may be struck as a sanction for such destruction. Practice Book § 755; State v. Williamson, 212 Conn. 6, 13, 562 A.2d 470 (1989). Sanctions will not be imposed, however, if the court finds that the nonproduction of a statement is harmless. State v. Williamson, supra, 212 Conn. 6, 13.

In State v. Sims, supra, we held that police broadcast tapes were “statements” within the terms of our rules of practice. Id., 248-49. In that case, as here, the recordings had been destroyed by the reuse of the tapes prior to the request for disclosure. Id. We held there that the erasure did not require that the testimony be stricken, although we expressed serious reservations about the New Haven police department’s failure to comply with judicial directives to discontinue routine erasure of tape-recorded material. Id., 249.

Sims was followed by our decision in State v. Williamson, supra, 14 Conn. App. 108. In Williamson, this court reiterated that recordings such as the one in Sims had to be preserved because they related “to the investigation, apprehension, and prosecution of suspects of a crime. . . .” Id., 118C n.9. Since the recordings were not produced, the affected testimony had to be stricken. Id., 109.

At oral argument in this case the state argued that police broadcast tapes do not come within the ambit of our decision in Williamson. The state did not present this issue in its brief but instead relegated it to a vague comment in a footnote. The impropriety of raising claims and arguments in footnotes has been the subject of comment in several recent cases. See State v. Ruscoe, 212 Conn. 223, 241 n.9, 563 A.2d 267 (1989), cert.k denied, U.S. , 110 S. Ct. 1144, 107 L. Ed. 2d 1049 (1990); State v. Webley, 17 Conn. App. 200, 202 n.2, 551 A.2d 428 (1988); State v. Reddick, 15 Conn. App. 342, 343 n.1, 545 A.2d 1109, cert. denied, 209 Conn. 817, 551 A.2d 758 (1988). Moreover, even if this argument were properly raised, it would be futile. As noted above, the matter was settled in Sims, where we concluded that police broadcast recordings were statements within the definition of the Practice Book disclosure requirements. State v. Sims, supra, 247-50.

Turning then, to our analysis of the defendant’s claim, our first task is to determine whether the erasure of the recordings was done in bad faith. “ Tn the context of a § 752 violation . . . the term‘bad faith” connotes a deliberate act done with intent to deprive the defense of information. State v. Santangelo, [supra, 587-88]; see also United States v. Bryant, 439 F.2d 642 (D.C. Cir. 1971) . . .’ State v. Williamson, [supra, 212 Conn. 6,16].” State v. Johnson, supra, 168. See State v. Leroux, 18 Conn. App. 223, 228, 557 A.2d 1271 (1989). Nothing in this case indicates that the New Haven police acted maliciously or that the erasure of the tapes was directed toward this particular defendant. We conclude that the police did not act in bad faith.

Where the facts do not support a finding of bad faith, the court must balance the fault of the state in failing to make disclosable material available against any resulting prejudice to the defendant. State v. Johnson, supra, 172; State v. Williamson, supra, 212 Conn. 6, 14. Since it is undisputed that the New Haven police intentionally erased the recordings, the state has the burden of proving that the nonproduction was harmless. State v. Johnson, supra; State v. Williamson, supra, 212 Conn. 6, 18.

We now are faced with the question of what standard the state must meet. The defendant argues that because the recordings were intentionally destroyed and because his sixth amendment right to confront the witnesses against him was compromised, the state should be required to prove that erasure was harmless beyond a reasonable doubt.

In State v. Williamson, supra, 212 Conn. 6, 23, our Supreme Court stated that, under the facts of that case, a strict application of the harmless error doctrine requiring the state to prove harmlessness beyond a reasonable doubt, “would not be unwarranted.” The Supreme Court noted that the destruction impinged on the defendant’s constitutional right to confront the witnesses against him. Id. Furthermore, the Supreme Court was precluded, for obvious reasons, from reviewing and assessing the significance of the undisclosed material, thus preventing it from determining whether the erasure was harmless. Id., 22, citing State v. Gonzales, 186 Conn. 426, 435, 441 A.2d 852 (1982). Despite those concerns, the Supreme Court in Williamson, having determined that the state failed to show that it was more probable than not that the nonproduction was harmless, found no point in holding the state to the higher standard of showing that the nonproduction was harmless beyond a reasonable doubt. State v. Williamson, supra, 212 Conn. 6, 23; see also State v. Belle, 215 Conn. 257, 265, 576 A.2d 139 (1990).

Here, we also are persuaded that the state has failed to satisfy this lesser standard, and consequently we do not decide whether the state must prove harmlessness beyond a reasonable doubt. Our analysis involves “ ‘a “case-by-case assessment of the [state’s] culpability for the loss, together with a realistic appraisal of [the evidence’s] significance when viewed in light of its nature, its bearing upon critical issues in the case and the strength of the [state’s] untainted proof.” . . .’ United States v. Konefal, 566 F. Sup. 698, 704 (N.D.N.Y. 1983) . . . .” (Citations omitted.) State v. Williamson, supra, 212 Conn. 6, 23. The state’s culpability is well established. The destruction of the recordings here occurred long after our decisions in Sims and Williamson had directed that they be preserved.

We also are satisfied that the defendant was prejudiced by the nonproduction. The state’s case consisted solely of the testimony of the two officers and an admittedly inaccurate and incomplete police report prepared several hours after the event. Furthermore, the defendant’s version of events contrasted sharply with the state’s case. He testified that he never entered the car but was instead standing on the sidewalk beside to it when Rivera appeared. Rivera, on the other hand, stated that the defendant was not only in the car but was behind the wheel before taking flight.

It is possible that the recordings would not have helped the defendant. At the same time, however, the recordings could have given the defendant the information necessary to impeach both Rivera and DeLucia. Both officers made their broadcasts while the events were unfolding and thus, presumably, the tapes of those broadcasts would have provided the- “most thorough description of the incident given outside the courtroom . . . State v. Williamson, supra, 14 Conn. App. 108, 118C. Furthermore and most important, because we do not have the tapes before us, we cannot speculate on what they might have contained, nor can we determine that the error was harmless. State v. Williamson, supra, 212 Conn. 6, 22; State v. Gonzales, supra. We therefore conclude that the trial court erred in failing to strike the testimony of Rivera and DeLucia.

II

The defendant next claims that the trial court erred in admitting into evidence a copy of the police report on the ground that it included inadmissible hearsay. We will consider this claim because it may occur on retrial. See State v. Thurman, 10 Conn. App. 302, 317, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987). The problem arose because the individual arrested with the defendant told the police that the defendant, and not he, had stolen the car. Officer DeLu- • cia included this information in his report.

A police report generally is admissible as a business record under General Statutes § 52-180. State v. Sharpe, 195 Conn. 651, 663, 491 A.2d 345 (1985). To qualify under this statute the report must be based entirely upon the police officer’s own observations or upon information provided by an observer with a business duty to transmit such information. Id.; D’Amato v. Johnston, 140 Conn. 54, 59, 97 A.2d 893 (1953). For example, a report prepared by an officer in charge of an accident investigation is admissible in its entirety, despite the fact that it contains information received from other officers assisting in the investigation. Such a report is not admissible, however, if it contains information furnished by a mere bystander. Information obtained from a person with no business duty to report is admissible only if it falls within some other hearsay exception. State v. Sharpe, supra, 663-64; State v. Palozie, 165 Conn. 288, 295, 334 A.2d 468 (1973). No such exception existed here. Therefore, it was error to admit the police report without redacting the inadmissible material.

We will not consider the third claim of error because it is not likely to occur on retrial.

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

In this opinion Daly, J., concurred.

Borden, J.,

dissenting and concurring. I dissent from the majority’s conclusion that the state did not establish the harmlessness of the destruction of the tapes. Both Rivera and DeLucia testified at trial as to the general contents of their broadcasts. Rivera testified that he radioed a general description of the individuals. DeLucia testified that he had radioed that he observed the subjects. Indeed, it is hardly likely that they would have radioed much more in the course of their pursuit of the three individuals involved.

The majority argues that their broadcasts would have provided the longest and most thorough description of the incident given outside the courtroom. Although it is true that the tapes would have provided some description of the incident given outside the courtroom, that description can not, ipso facto, be characterized as either long or thorough. Thus, under either the “more probable than not” or the “beyond a reasonable doubt” standard of harmlessness, I am persuaded that the destruction of the tapes could not have affected the verdict.

The majority’s reliance on State v. Williamson, 212 Conn. 6, 562 A.2d 470 (1989), is misplaced. In that case, there were critical inconsistencies between the trial testimony of the witness and the transcript of the destroyed tape of her interview. Id., 24-25. Here, no such inconsistencies have been shown between Rivera’s and DeLucia’s testimony and the likely content of the destroyed tapes. Furthermore, in Williamson, the destroyed tape was of an interview with the victim in which she described the crime in detail. Thus, the tape “ ‘was the longest and presumably the most thorough description of the incident given outside the courtroom’ ” (emphasis added); id., 25, quoting State v. Williamson, 14 Conn. App. 108, 118C, 552 A.2d 815 (1988); and would have been useful in cross-examining the victim. In my view, that cannot reasonably be said of these radio broadcasts.

I agree, however, with the majority’s conclusion that the admission of the police report constituted harmful error. I concur, therefore, in the remand for a new trial.

       Practice Book § 752 provides: “After a witness called by the state has testified on direct examination at trial, the judicial authority shall, on motion of the defendant, order the state to produce any statement of the witness in the possession of the state or its agents, including state and local law enforcement officers, which statement relates to the subject matter about which the witness has testified.”

       Practice Book § 749 provides: “The term ‘statement’ as used in Sec. 748 means:
      “(1) A written statement made by a person and signed or otherwise adopted or approved by him; or
      “(2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.”

       We recognize that our decision in State v. Williamson, 14 Conn. App. 108, 552 A.2d 815 (1989), dealt with recordings of emergency 911 telephone calls. The reasoning in Williamson, however, applies equally to police broadcasts, which are recorded on the same type of twenty-four hour tape.

       The irony that condemnation of the practice of raising arguments in footnotes is itself set forth in footnotes has not escaped the author of this opinion.