text:
    David Burns et al. v. Board of Education of the City of Stamford et al.
    (11284)
    Daly, Heiman and Freedman, Js.

      Argued January 13 —
    decision released March 16, 1993

      Carolyn W. Alexander, for the appellants (plaintiffs).

      Richard A. Robinson, assistant corporation counsel, with whom, on the brief, was Daniel B. McCabe, corporation counsel, for the appellees (defendants).
   Daly, J.

The plaintiffs, David Burns and Darlene Vrendburgh, David’s mother and next friend, instituted this four count action following David’s fall on an icy high school courtyard. The plaintiffs appeal from the trial court’s rendering of summary judgment in favor of the defendants on the first, second, and fourth counts of the complaint. The trial court granted the motion for summary judgment after determining that the alleged negligent acts were discretionary in nature and that no exception to the doctrine of governmental immunity permitted the claims alleged in those counts. We affirm the judgment of the trial court.

The factual situation is as follows. On January 13, 1988, David, a student at West Hill High School in Stamford, was walking across the courtyard en route to his guidance counselor’s office when he slipped and fell on a sheet of ice, fracturing his left elbow. The courtyard is the main access between the two buildings that comprise the high school. The area was not sanded or salted and no warnings had been issued to the students as to its condition. School policy under which the school custodians operated called for inspection of the entire area by the head custodian who would order sanding and salting as necessary.

The gravamen of the fourth count of the complaint is that the defendant superintendent of schools was negligent in failing to ensure that the courtyard was properly salted and sanded and in failing to warn of the icy conditions existing in the courtyard. Counts one and two, brought against the Stamford board of education and the city of Stamford, are derivative in nature. The defendants filed a special defense of governmental immunity.

The superintendent’s affidavit, filed in conjunction with the motion for summary judgment, indicated that his duties as superintendent did not include the personal inspection of the grounds of the high school or verification that ice and snow conditions had been corrected. He stated that he did not visit the high school, was unaware of the icy conditions and did not instruct or encourage any student to use the courtyard on the day in question.

The head custodian stated in a deposition that the decision of whether to salt and sand the premises was his to make and was not the superintendent’s decision. The defendants filed a motion for partial summary judgment as to the negligence and derivative suit counts, arguing that the superintendent was protected under the doctrine of governmental immunity. The motion was granted.

The plaintiffs raise the following issues on appeal: (1) Are the negligent acts alleged ministerial and thus not barred by governmental immunity? (2) Does the foreseeable victim exception to the doctrine of governmental immunity apply? (3) Is the doctrine of governmental immunity constitutional? (4) Does the doctrine violate public policy such that it should be overturned by judicial fiat?

I

The plaintiffs first claim that the sanding and salting of the courtyard of the high school is a ministerial duty to which the doctrine of governmental immunity does not apply.

“When reviewing a trial court’s ruling on a motion for summary judgment, we must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Practice Book § 384; Mingachos v. CBS, Inc., 196 Conn. 91, 111, 491 A.2d 368 (1985); D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). Aetna Casualty & Surety Co. v. Jones, 220 Conn. 285, 292-93, 596 A.2d 414 (1991).” (Internal quotation marks omitted.) West Haven v. Hartford Ins. Co., 221 Conn. 149, 155, 602 A.2d 988 (1992). The plaintiffs do not claim that a genuine issue of material fact existed on any of the counts on which summary judgment was granted. In this appeal, the dispositive issue is whether the defendants were entitled to judgment as a matter of law. “[Summary] judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 384. Because there was no duty imposed on the superintendent to ensure that the courtyard was sanded and salted, he was not negligent and, therefore, he was entitled to summary judgment.

“Negligence is a breach of duty. ... To sustain a cause of action, the court must determine whether the defendant owed a duty to the plaintiff’s decedent and the applicable standard of care. . . . The existence of a duty is a question of law. . . . Only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand.” (Citations omitted; internal quotation marks omitted.) Shore v. Stonington, 187 Conn. 147, 151-52, 444 A.2d 1379 (1982).

According to the defendant superintendent’s affidavit: “My duties do not include personally inspecting the grounds at West Hill High School on a regular basis, or to verify that ice and snow conditions have been corrected. I rely on subordinates for the regular maintenance and supervision of school grounds. I did not personally instruct or encourage David Burns or any other student to use the courtyard of West Hill High School on the date of January 13,1988.” General Statutes § 10-157 (a) addresses the general responsibilities of the superintendent. Section 10-157 (a) provides in part: “Any local or regional board of education shall provide for the supervision of the schools under its control by a superintendent who shall serve as the chief executive officer of the board. The superintendent shall have executive authority over the school system and the responsibility for its supervision. . . .” This statute, which places supervisory responsibility on the superintendent, does not place a specific duty on the superintendent to ensure that the sidewalks and courtyards of Stamford schools are salted and sanded. We know of nothing that places such a duty on the superintendent. Furthermore, the head custodian took responsibility for his failure to salt and sand the courtyard because it was his responsibility to do so.

Thus, the duty rested with the head custodian, who is not a party to the suit. The superintendent is not responsible for the actions of the head custodian because at common law government officials are generally not held vicariously liable for the acts of their subordinates. Canning v. Lensink, 221 Conn. 346, 353, 603 A.2d 1155 (1992). Summary judgment was, therefore, properly entered in favor of the superintendent.

Despite the plaintiffs’ assertions to the contrary, even if the superintendent possessed a duty, the duty was discretionary and fell within the ambit of the doctrine of governmental immunity. “If by statute or other rule of law the official’s duty is clearly ministerial rather than discretionary, a cause of action lies for an individual injured from allegedly negligent performance.” Shore v. Stonington, supra, 153. “Governmental acts are performed wholly for the direct benefit of the public and are supervisory or discretionary in nature. . . . On the other hand, ministerial acts are performed in a prescribed manner without the exercise of judgment or discretion as to the propriety of the action.” (Internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 167-68, 544 A.2d 1185 (1988); Kolaniak v. Board of Education, 28 Conn. App. 277, 280-81, 610 A.2d 193 (1992).

This case differs from Kolaniak v. Board of Education, supra, where a student also slipped and fell on school grounds because the walkway was not properly shoveled, sanded or salted. The defendants in that case included the supervisor of night custodians and the head of the maintenance staff. Id., 278 n.1. There, the board of education had issued a bulletin stating that walkways were to be inspected and kept clean on a daily basis. We determined that, given the issuance of the bulletin, the trial court properly determined as a matter of law that the supervisor of night custodians and the head of the maintenance staff performed ministerial functions. Id., 281-82. In the present case, there was no such directive from the board of education or the superintendent. Unlike the shoveling of school walks in Kolaniak v. Board of Education, supra, which was performed at the behest of the school board, the salting or sanding at issue here was solely the responsibility of the head custodian, and was not a ministerial action performed under the superintendent’s direction.

“There is also authority for the proposition that where the duty of the public official to act is not ministerial but instead involves the exercise of discretion, the negligent failure to act will not subject the public official to liability unless the duty to act is clear and unequivocal. ... We have recognized the existence of such duty in situations where it would be apparent to the public officer that his failure to act would be likely to subject an identifiable person to imminent harm.” (Citation omitted.) Shore v. Stonington, supra. We agree with the defendants that the identifiable person exception does not apply to the present case.

Any duty to sand and salt the courtyard in this case would affect, not only David, but every member of the student population at West Hill High School. It was not apparent that the failure to salt and sand the high school courtyard would be likely to subject David to imminent harm. The duty to salt and sand the courtyard was discretionary and did not come within the purview of this exception. For these reasons, we conclude that the trial court properly determined that the doctrine of governmental immunity applied and that the foreseeable victim exception was inapplicable. Thus, summary judgment was proper.

II

Having determined that the trial court properly granted the motion for summary judgment in favor of the superintendent, we consider the judgment in favor of the board of education and the city of Stamford on counts one and two. The plaintiffs have relied on General Statutes §§ 7-465 and 10-235 as the basis for the defendants’ derivative liability. “Whatever may be the full scope and effect of [§ 7-465], in no event may the municipality be held liable under it unless the municipal employee himself becomes obligated to pay [sums] by reason of the liability imposed upon . . . [him] by law for physical damages to person or property.” (Internal quotation marks omitted.) Kostyal v. Cass, 163 Conn. 92, 97, 302 A.2d 121 (1972).

“The allegations of a complaint limit the issues to be decided on the trial of a case and are calculated to prevent surprise to opposing parties. ... It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint. ... A plaintiff may not allege one cause of action and recover on another.” (Citations omitted; internal quotation marks omitted.) Lundberg v. Kovacs, 172 Conn. 229, 232, 374 A.2d 201 (1977).

Section 10-235 is also an indemnification statute contingent on a judgment’s being obtained against a board member, teacher, employee or any member of the board’s supervisory or administrative staff. Since the plaintiffs have alleged that the basis for their claim is the superintendent’s negligence, if that fails, so does the derivative claims that are based on it. Thus, the trial court properly rendered summary judgment in favor of the remaining defendants.

Ill

We turn now to the plaintiffs’ third claim that the doctrine of governmental immunity violates the federal and state guarantees of equal protection under the fourteenth amendment to the United States constitution and article first, § 20, as amended, and article first, § 10 of the Connecticut constitution.

When, as here, there is an equal protection challenge, we must first determine the standard by which the constitutionality of the common law doctrine of governmental immunity will be determined. We apply the rational basis test in accordance with our Supreme Court’s decision in Ryszkiewicz v. New Britain, 193 Conn. 589, 479 A.2d 793 (1984), which involved an equal protection challenge to a statute that limited governmental liability. When applying the rational basis test, we must decide whether the purpose of the doctrine of governmental immunity is legitimate and whether the doctrine is designed to accomplish that purpose in a fair and reasonable way. Id., 598. “For our purposes here the test is the same under both the federal and state constitutions. Caldor’s, Inc. v. Bedding Barn, Inc., [177 Conn. 304, 314, 417 A.2d 343 (1979)]; Horton v. Meskill, 172 Conn. 615, 639, 376 A.2d 359 (1977).” Ryszkiewicz v. New Britain, supra, 599.

The plaintiffs argue that under the rational basis test there is no valid reason to protect the defendants from liability under the doctrine of governmental immunity, where private persons or entities would be liable. The plaintiffs also assert that there is no justification for the doctrine that treats differently those injured by the acts of a municipality and those injured by the acts of private individuals or entities. We disagree.

The principal of governmental immunity was well established when the Connecticut constitution was adopted in 1818 and redrafted in 1965. Id., 598; Murphy v. Ives, 151 Conn. 259, 264, 196 A.2d 596 (1963). Exceptions to governmental immunity have been carved out as our legislature has deemed necessary. Ryszkiewicz v. New Britain, supra, 594-95; Sagamore Group, Inc. v. Commissioner of Transportation, 29 Conn. App. 292, 297, 614 A.2d 1255 (1992).

Our Supreme Court addressed the rationale of governmental immunity in Wadsworth v. Middletown, 94 Conn. 435, 439, 109 A. 246 (1920), “where [the Supreme Court] said that since certain public officials were ‘engaged upon a governmental duty ... so long as they act in good faith, in the exercise of an honest judgment, and not in the abuse of their discretion, or maliciously or wantonly, they cannot be held liable.’ ” Gordon v. Bridgeport Housing Authority, supra, 166. Thus, municipalities and officials would not be liable for discretionary acts, “as long as they were not performed maliciously, wantonly or in an abuse of discretion.” Id. The court acknowledged the assortment of official duties which are dependent on the discretion of the public official. “The affairs of government cannot be conducted with absolute exactitude, and public officials cannot be expected to act in all cases with certain judgment. Timidity and doubt would govern their performance of public duty if they acted in the consciousness that personal liability might follow, no matter how closely they followed their best discretion.” Wadsworth v. Middletown, supra, 440.

The doctrine of governmental immunity is not so broad that it protects those officials who act wantonly or with malice. Gordon v. Bridgeport Housing Authority, supra; Wadsworth v. Middletown, supra. Nevertheless, implicit in the doctrine of governmental immunity is an understanding that municipalities provide for a wide range of services that involve discretionary decision making. Governmental immunity allows these decisions to be made unhampered by the fear that any error made in good faith will subject the municipality or the official to liability. Thus, the doctrine of governmental immunity satisfies the requirements of the rational basis test.

The plaintiffs rely on Ryszkiewicz v. New Britain, supra, where the plaintiff challenged the constitutionality of § 2709 of the New Britain city charter as adopted by the General Assembly, 30 Spec. Acts 404, No. 420, § 2709 (1961). Section 2709 limited the city’s liability in any action for injuries caused by ice or snow on highways within the city. Our Supreme Court found the law to be unconstitutional as violating equal protection under the rational basis test because it gave New Britain immunity that other towns did not enjoy. The present case is different not only because the doctrine of governmental immunity satisfies the rational basis test but because the doctrine of governmental immunity gives Stamford the same freedom from liability that any other similarly situated municipality would enjoy. Furthermore, David is being treated the same as any member of the public who is injured on a public school sidewalk as a result of icy conditions. We, therefore, conclude that his equal protection rights were not violated.

The plaintiffs also argue that the doctrine of governmental immunity is unconstitutional under article first, § 10, of our constitution. Article first, § 10, provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due cause of law, and right and justice administered without sale, denial or delay.” “[A]ll rights derived by statute and the common law extant at the time of the adoption of article first, § 10, are incorporated in that provision.” (Internal quotation marks omitted.) Sanzone v. Board of Police Commissioners, 219 Conn. 179, 195, 592 A.2d 912 (1991).

As we stated earlier, Connecticut municipalities have long enjoyed governmental immunity from liability for certain tortious acts. Ryszkiewicz v. New Britain, supra. Thus, article first, § 10, which grants access to courts for redress of grievances, does not make the doctrine of governmental immunity unconstitutional. The plaintiffs have failed in their burden to establish the unconstitutionality of governmental immunity.

IV

The plaintiffs seek to have us abrogate the deeply rooted doctrine of governmental immunity by judicial fiat. We decline to do so. “The state legislature . . . possesses the authority to abrogate any governmental immunity by statute that the common law gives to the state and municipalities.” (Internal quotation marks omitted.) Sagamore Group, Inc. v. Commissioner of Transportation, supra, 297; Fidelity Bank v. State, 166 Conn. 251, 254, 348 A.2d 633 (1974). The legislature has carved out exceptions to the doctrine of governmental immunity and may determine the propriety of the doctrine as it sees fit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The city of Stamford, the Stamford board of education and the superintendent of schools are the defendants in this matter.

       The third count sounding in nuisance against the city of Stamford and the board of education is extant and is not involved in this appeal.

       General Statutes § 7-465 (a) provides in pertinent part: “Any town, city or borough . . . shall pay on behalf of any employee of such municipality ... all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded ... for physical damages to person ... if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty. ...”

       General Statutes § 10-235 (a) provides in pertinent part: “Each board of education shall protect and save harmless any member of such board or any teacher or other employee thereof or any member of its supervisory or administrative staff . . . arising out of any claim, demand, suit or judgment by reason of alleged negligence or other act resulting in accidental bodily injury to . . . any person . . . within or without the school building . . . .”

       It is interesting to note that municipal immunity has been recognized in two recent cases. See Giannitti v. Stamford, 25 Conn. App. 67, 79, 593 A.2d 140, cert. denied, 220 Conn. 918, 597 A.2d 333 (1991), and Kolaniak v. Board of Education, 28 Conn. App. 277, 280, 610 A.2d 193 (1992).

       For example, General Statutes § 13a-144 allows recovery for persons injured on defective state highways, bridges or sidewalks and General Statutes § 13a-149 allows persons injured on defective roads or bridges to recover from the municipality or government responsible for keeping it in repair.


source: Caselaw Access Project

author: O’Connell, J.

license: Public Domain

text:
    State of Connecticut v. Joseph Raymond
    (10968)
    O’Connell, Foti and Cretella, Js.
    Argued January 11 —
    decision released March 16, 1993

      Leon M. Kaatz, for the appellant (defendant).

      RitaM. Shair, assistant state’s attorney, and John P. McKinney, certified legal intern, with whom were John M. Bailey, state’s attorney, and, on the brief, Edward Wilson, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from his conviction, after a jury trial, of attempted assault in the first degree in violation of General Statutes §§ 53a-49 (a) (1) and 53a-59 (a) (2). He does not challenge his conviction resulting from the same trial of burglary in the second degree in violation of General Statutes § 53a-102 (a), larceny in the second degree in violation of General Statutes § 53a-123 (a) (2) and assault of a peace officer in violation of General Statutes § 53a-167c (a) (l). The defendant claims that he was punished twice for the same offense in violation of his fifth amendment protection against double jeopardy. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On August 2,1990, two Manchester police detectives advised the defendant that they were placing him under arrest on a burglary charge. As the detectives began to handcuff him, he broke free, pushed one of the detectives off balance and jumped on the other, causing him to fall to the floor. The altercation continued and, before the detectives were able to subdue the defendant, he had briefly choked one of them and had thrust his finger into the eye socket of the other apparently in an attempt to gouge out his eye. As a result of the confrontation, the detective’s eye became “blood-red” and he was transported to the hospital for emergency care and treatment.

The defendant was charged by way of a six count information and convicted on four of the counts. After the jury returned the guilty verdicts, the defendant moved for a judgment of acquittal on the count charging him with attempted assault in the first degree. He claimed that his conviction on that count in conjunction with his conviction on the count charging him with assault of a peace officer violated his fifth amendment protection against double jeopardy. The motion was denied and the defendant appealed.

The double jeopardy clause of the fifth amendment to the United States constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .” The fifth amendment thus prohibits multiple punishments for the same offense in the same trial (simultaneous double jeopardy), as well as in multiple trials (sequential double jeopardy). State v. Anderson, 212 Conn. 31, 35, 561 A.2d 897 (1989); see also Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977). The defendant’s claim implicates the prohibition against multiple punishments for the same offense. See State v. Russell, 25 Conn. App. 243, 250, 594 A.2d 1000, cert. denied, 220 Conn. 911, 597 A.2d 338 (1991). To prevail on this claim, the defendant bears the burden of demonstrating (1) that the charges arise out of the same act or transaction and (2) that the crimes are the same offense. State v. Palmer, 206 Conn. 40, 52, 536 A.2d 936 (1988). Both conditions must be met. Id. Because there is no dispute in this case that the charges arose out of the same transaction, the sole issue is whether the crimes are the same offense.

To determine whether the crimes are the same offense, we employ the test articulated in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932), wherein the emphasis is placed on the elements of the crimes; State v. Goldson, 178 Conn. 422, 424, 423 A.2d 114 (1979); and the essential inquiry is “whether each [statutory] provision requires proof of a fact the other does not . . . .” Blockburger v. United States, supra. In our evaluation, we look to the statutes, the information and any bill of particulars, but not to the evidence presented at trial. State v. Tweedy, 219 Conn. 489, 495, 594 A.2d 906 (1991). The Blockburger test is a rule of statutory construction and may be rebutted by a showing of clear legislative intent that the two statutes are to be treated as one for double jeopardy purposes. State v. Lytell, 206 Conn. 657, 665-66, 539 A.2d 133 (1988); State v. Blackwell, 20 Conn. App. 193, 197, 565 A.2d 549, cert. denied, 213 Conn. 810, 568 A.2d 794 (1989).

In the present casé, the defendant concedes that the two statutes each require proof of an element that the other crime does not. Moreover, the defendant has made no showing that the legislature intended the two crimes to be treated as one. The defendant contends, however, that even though the two crimes as described by statute are separate offenses, they are not separate offenses as charged by the long form information in the present case. He argues that on the basis of the allegations of the information the offense of attempted assault in the first degree is in this particular case a lesser included offense of assault of a peace officer.

For double jeopardy purposes, a lesser included offense and the greater offense are considered to be one offense. State v. Goldson, supra, 425. “The test for determining whether one violation is a lesser included offense in another violation is whether it is possible to commit the greater offense, in the manner described in the information . . . without having first committed the lesser.” (Internal quotation marks omitted.) Id., 426; State v. Whistnant, 179 Conn. 576, 588, 427 A.2d 414 (1980). The defendant argues that he could not commit the offense of assault of a peace officer without committing the offense of attempted assault in the first degree because the conduct and intent of both crimes as alleged in the information are identical.

The plain language of the information demonstrates the lack of merit in this claim. The third count of the information alleges that the defendant acted with the intent to prevent a reasonably identifiable police officer from performing his duty. The fourth count alleges that the defendant acted with the intent to disable the eye of the detective permanently. Both counts refer to the detective who sustained the eye injury. Notwithstanding the defendant’s suggestion that the two intents are really “subintents” of the overarching intent to avoid being taken into custody and are, therefore, the same intent, we are satisfied that the information alleges two different intents. Because the intent elements are different, the two offenses are not the same offense for purposes of the fifth amendment.

The defendant also claims that the conduct elements of the two offenses are identical. We do not reach this claim because our resolution of the intent issue is dis-positive of the appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-49 (a) provides in pertinent part: “A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he: (1) Intentionally engages in conduct which would constitute the crime if attendant circumstances were as he believes them to be . . . .”
      General Statues § 53a-59 (a) provides in pertinent part: “A person is guilty of assault in the first degree when . . . (2) with intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person . . . .”

       General Statutes § 53a-167c (a) provides in pertinent part: “A person is guilty of assault of a peace officer . . . when, with intent to prevent a reasonably identifiable peace officer . . . from performing his duty, and while such peace officer . . . is acting in performance of his duties, (1) he causes physical injury to such peace officer . . . .”

       The prohibition against double jeopardy was made applicable to the states through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). In addition, even though our state constitution does not contain a similar clause, its due process clause and personal liberty guarantees, article first, §§ 8 and 9, have been held to encompass the double jeopardy prohibition. See State v. Lonergan, 16 Conn. App. 358, 363-64, 548 A.2d 718 (1988), aff’d, 213 Conn. 74, 566 A.2d 677 (1989), cert. denied, 496 U.S. 905, 110 S. Ct. 2586, 110 L. Ed. 2d 267 (1990).

       The elements of assault on a peace officer, General Statutes § 53a-167c (a) (1) are: (1) intent to prevent a reasonably identifiable peace officer from performing his duties; (2) the infliction of physical injury to the peace officer; and (3) the victim must be a peace officer. State v. Kelly, 23 Conn. App. 160, 172-74, 580 A.2d 520, cert. denied, 216 Conn. 831, 583 A.2d 130 (1990), cert. denied, 499 U.S. 981, 111 S. Ct. 1635, 113 L. Ed. 2d 731 (1991).
      The elements of attempted assault in the first degree, General Statutes §§ 53a-49 (a) (1) and 53a-59 (a) (2) are: (1) intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body; see State v. Miller, 202 Conn. 463, 488-89, 522 A.2d 249 (1987); and (2) conduct intentionally engaged in that would have caused such injury if attendant circumstances were as the defendant believed them to be.

       The third count of the long form information stated: “In the Third Count accuses Joseph Raymond of Assaulting a Police Officer and charges that on August 2,1990, at about 5 p.m. at 791 Main Street in Manchester, Connecticut, Joseph Raymond, with intent to prevent a reasonably identifiable police officer, Michael Morrissey, from performing his duty, the arrest of Joseph Raymond, and while Michael Morrissey was acting in the performance of that duty, caused physical injury, impairment of physical condition or pain to Michael Morrissey by applying physical force, in violation of Connecticut General Statutes Section 53a-167c (a) (1).”
      The fourth count of the long form information stated: “In the Fourth Count accuses Joseph Raymond of Attempt to Commit Assault in the First Degree and charges that on August 2, 1990, at about 5 p.m. at 791 Main Street in Manchester, Connecticut, Joseph Raymond, acting with the kind of mental state required for the commission of Assault in the First Degree, the intent to disable permanently an organ, one of Michael Morrissey’s eyes, intentionally engaged in conduct which would constitute Assault in the First Degree if attendant circumstances were as he believed them to be, that he was physically capable of overpowering Michael Morrissey and gouging out his eye, trying to gouge out Michael Morrissey’s eye with his hand and fingers, in Violation of Connecticut General Statutes Section 53a-49 (a) (l)/53a-59 (a) (2).”

       We note that it is not legally inconsistent for a jury to find that a defendant has acted with two different mental states in the same transaction as long as the different mental states relate to different results. See State v. Flynn, 14 Conn. App. 10, 27, 539 A.2d 1005, cert. denied, 488 U.S. 891, 109 S. Ct. 226, 102 L. Ed. 2d 217 (1988).


author: E. Y. O’Connell, J.

text:
    Richard Pleines et al. v. The Franklin Construction Company, Inc., et al.
    (11388)
    O'Connell, Landau and Schaller, Js.
    Argued January 7 —
    decision released March 16, 1993

      Joseph F. McVerry, for the appellants (defendants).

      Bruce A. Fontanella, with whom, on the brief, was Marc A. Bruqq, law student intern, for the appellees (plaintiffs).
   E. Y. O’Connell, J.

The defendants appeal from a judgment of foreclosure by sale of a mechanic’s lien. The defendants claim that the trial court’s conclusion that the defendants owed the plaintiff $11,640 and its award of $12,787 in attorney’s fees was not supported by the evidence. We affirm the judgment of the trial court.

The record discloses the following evidence in support of the judgment. The plaintiff is a stone and brick mason who performed work for the defendant, The Franklin Construction Co., Inc. (Franklin), on premises of the defendant Saybrook Point Marina Partnership in Old Saybrook. He dealt with the defendant, Steven Tagliatela, a general partner, and Jim McCarthy, Franklin’s superintendent on the job. When the plaintiff was not paid upon the completion of his work, he filed a mechanic’s lien on real property owned by Saybrook Point Marina Partnership to secure $13,640 he claimed was due for the construction of a brick patio. He brought the present action seeking foreclosure of the lien and damages.

The trial court, Higgins, J., heard evidence that early in July, 1989, the plaintiff quoted a price of $4.50 per square foot to build the patio. Tagliatela objected that the price was too high and did not award the job to the plaintiff at that time. On July 14, 1989, construction of the patio was again discussed. Although apparently no price was determined, Tagliatela requested that the plaintiff commence work immediately, rather than waiting two weeks for another mason to become available. Notwithstanding the lack of a price agreement, the plaintiff reduced his price to $2.50 per square foot after learning that another mason was offering to do the work at that lower rate. In accordance with the plaintiffs practice of obtaining a down payment of one-half the total price of a job before starting work, he submitted an invoice to the defendants, calculated at $2.50 per square foot times one-half the estimated total square footage plus tax.

The plaintiff and a helper worked on the job from eight to ten hours a day, six days a week for two weeks. Representatives of Franklin were constantly in the area while the work was in progress. The patio measured 4800 square feet which, priced at $2.50 per square foot, amounted to $12,000 plus $960 tax, totaling $12,960. At the same time, the plaintiff also performed some unrelated work for $680.40, yielding a grand total of $13,640.40. A second bill, for the remainder of the work, was delivered to Franklin on July 27, the day before the patio was completed. Shortly thereafter, the plaintiff was paid $2000, leaving an outstanding balanee of $11,640. At trial, the defendants contended that the plaintiff was to be paid $30 per hour plus $15 per hour for a helper rather than by the square foot.

On July 24,1991, the trial court, Higgins, J., found that the defendants owed the plaintiff $11,640 and rendered an interlocutory judgment of foreclosure of the mechanic’s lien. On May 4, 1992, the trial court, R. O’Connell, J., rendered a judgment of foreclosure by sale and allowed the plaintiff $12,780 in attorney’s fees. Additional facts are included in our analysis of the law.

I

The defendants do not contest the trial court’s calculations or the credibility of the evidence. Their sole argument is that the evidence was insufficient to support the trial court’s conclusion that the defendants owed the plaintiff $11,640. We do not agree.

It is undisputed that the plaintiff built a 4800 square foot brick patio for the defendants and has not been fully paid. The memorandum of decision refers to, but does not recite, the subordinate facts the trial court relied on in reaching its $11,640 judgment figure. When we are presented with a claim that the court’s decision is not supported by the evidence, our duty on review is to examine not only the memorandum of decision, but also the entire record together with the exhibits and transcripts. McGaffin v. Roberts, 193 Conn. 393, 409, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985); In re Lea T., 15 Conn. App. 455, 457, 544 A.2d 1245 (1988); Buddenhagen v. Lugue, 10 Conn. App. 41, 45, 521 A.2d 221 (1987). Our function on review is not to determine whether the trial court could have reached a different conclusion, but whether the one it did reach is clearly erroneous. Capital Consulting Group, Ltd. v. Rochman, 218 Conn. 396, 401, 589 A.2d 877 (1991); Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

The trial court, Higgins, J., rendered judgment for the plaintiff on each count of the complaint. The first count sought foreclosure of a mechanic’s lien, the second count alleged the existence of an express oral contract and the third count alleged unjust enrichment. The defendants correctly note that the judgment on the third count appears to be inconsistent with the judgment on the second count because proof of a contract ordinarily precludes the remedy of unjust enrichment. Polverari v. Peatt, 29 Conn. App. 191, 199, 614 A.2d 484, cert. denied, 224 Conn. 913, 617 A.2d 166 (1992); Feng v. Dart Hill Realty, Inc., 26 Conn. App. 380, 383-86, 601 A.2d 547, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992). Although the defendants filed a motion for articulation, the trial court denied the motion and the defendants neglected to pursue that denial through review by this court in accord with Practice Book § 4054. Consequently, the trial court was not directed to articulate on which of the conflicting principles it relied. Nevertheless, assuming arguendo that the judgment was improper, the error was harmless because there was sufficient evidence to support a judgment against the plaintiff for $11,640 under either theory.

A

The defendants’ contention that a contract providing for payment of $2.50 per square foot did not exist, implicates the fundamental doctrine of offer and acceptance. It is axiomatic that to create a contract there must be an unequivocal acceptance of an offer. Bridge port Pipe Engineering Co. v. DeMatteo Construction Co., 159 Conn. 242, 246, 268 A.2d 391 (1970); Leigh v. Smith, 138 Conn. 494, 496, 86 A.2d 567 (1952). The law, however, does not require an express acceptance. Bridgeport Pipe Engineering Co. v. DeMatteo Construction Co., supra. Acceptance may be shown by acts or conduct indicating assent to an offer or, under appropriate circumstances, acceptance may be implied by the offeree’s silence and inaction. John J. Brennan Construction Corporation, Inc. v. Shelton, 187 Conn. 695, 710, 448 A.2d 180 (1982); Shulman v. Hartford Public Library, 119 Conn. 428, 433, 177 A. 269 (1935).-More-over, regardless of actual intent, if the offeree’s conduct leads the offeror reasonably to conclude that the offer is being accepted, acceptance has taken place as a matter of law. John J. Brennan Construction Corporation, Inc. v. Shelton, supra, 709.

In the present case, Tagliatela asked the plaintiff to build the patio. At the time that he started the work, the plaintiff presented an invoice to Franklin’s representative calculated on a square foot basis. While the patio was being built, no one suggested that $2.50 per square foot was too high a price or that the plaintiff was to be paid on an hourly basis. Whether the conduct of an offeree can lead the offeror reasonably to infer acceptance is a question of fact for the trial court. Id. The evidence was sufficient to support a trial court finding that the defendants by their words, acts and conduct led the plaintiff reasonably to conclude that they had accepted the plaintiff’s offer, thus creating a contract for construction of the patio at $2.50 per square foot. Accordingly, the facts support a finding that there was an express contract between the parties for the amount claimed by the plaintiff.

B

The trial court’s conclusion that the defendants owed the plaintiff $11,640 is also supported by the doctrine of unjust enrichment. The doctrine is grounded in the principle that it is contrary to equity and good conscience to allow a person to retain a benefit that has come to him at the expense of another. Polverari v. Peatt, supra, 200. The defendants’ argument centers on the valuation of the plaintiff’s labor. The defendants contend that “the plaintiff offered no objective evidence as to reasonable value.” We do not agree. The defendants assume that the evidence of value must come from an independent and disinterested third party. This is not the law. “Under the modern rule, a plaintiff is competent to give his opinion as to the reasonable value of his own services, after they have been described with reasonable particularity.” Anderson v. Zweigbaum, 150 Conn. 478, 483, 191 A.2d 133 (1963). Any objection thereto would go to the weight of the testimony. See id.

In the present case, the plaintiff had been doing brickwork for approximately ten years and had owned and operated his own business for four years. For the last four to five years, he had been engaged in pricing brickwork. He testified that brickwork is commonly priced by the square foot and that $2.50 per square foot was a fair and reasonable charge when brick was furnished by the owner, as it was here. This provided sufficient evidence to support the plaintiffs claim that the defendants were unjustly enriched and that the reasonable value of his work was $2.50 per square foot.

II

The defendants next claim that the trial court’s award of attorney’s fees is unsupported by the evidence. At the foreclosure hearing, the plaintiff filed an affidavit itemizing 102.3 hours devoted to the case by his attorneys with a description of the work performed. The plaintiff asked for $12,787.50 based on a rate of $125 per hour. In the trial court, the defendants argued that the amount was excessive compared to the size of the judgment the court rendered. The plaintiff responded that a plethora of pretrial pleadings, including a request to revise, a motion to strike, a motion to dismiss, and requests for discovery had been filed. In addition, there had been a deposition, a full trial and a prior appeal that was dismissed as untimely. The plaintiff was successful in all of these proceedings. The defendants did not ask for an evidentiary hearing on the reasonableness of the bill.

It is well established that the trial court may use its own general knowledge in determining what constitutes a reasonable fee. Bizzoco v. Chinitz, 193 Conn. 304, 310, 476 A.2d 572 (1984). A court may rely on what has taken place in the proceeding before it to supply evidence to support an award of attorney’s fees. Id. In the present case, the court could have properly considered the number and nature of the pretrial motions that had been filed, the extent of other pretrial activity such as discovery and depositions, as well as trial and posttrial activity. “The court was in a position to evaluate the complexity of the issues presented and the skill with which counsel had dealt with these issues.” Id., 311. The record here was sufficient to support the attorney’s fees awarded.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendants are The Franklin Construction Co., Inc., a Connecticut corporation, Saybrook Point Marina Partnership, a Connecticut partnership and its general partners Louis F. Tagliatela, Jr., Steven Tagliatela and Patricia Tagliatela. The defendant, Stephen Tagliatela, is the vice president of The Franklin Construction Co., Inc.

       The plaintiffs are Richard Pleines and his wife Beth Pleines, who were doing business as Stone and Brick. Because only Richard Pleines furnished any substantial services on the job, we refer to him as the plaintiff.

       4800 sq. ft. x $2.50 = $12,000.00
      Sales tax 960.00
      Unrelated work 680.40
      $13,640.40
      Credit - 2,000.00
      Balance Due $11,640.40

       The complaint also alleged the existence of an implied contract. In view of our disposition of the express contract issue, we do not reach the allegation of an implied contract.


author: Schaller, J.

text:
    Alex Torres v. City of Waterbury et al.
    (11025)
    Landau, Schallek and Cretella, Js.
    Argued December 11, 1992 —
    decision released March 16, 1993

      Cheryl E. Hricko, for the appellants (defendant Alex Gallo et al.).

      Ian A. Cole, for the appellee (plaintiff).
   Schaller, J.

The defendant police officers appeal from the trial court’s judgment, rendered after a jury trial, in favor of the plaintiff, as a result of the officers’ violation of 42 U.S.C. § 1983. The officers claim that the trial court improperly (1) denied their motion for a directed verdict and their motion to set aside the judgment, (2) instructed the jury to continue its deliberations without the benefit of rehearing the entire testimony of two witnesses, (3) failed to set aside the verdict on the basis of an inappropriate statement made by the plaintiff’s counsel during closing argument and (4) admitted rebuttal testimony. In addition to the officers’ appeal, the plaintiff has applied to this court for an award pursuant to 42 U.S.C. § 1988 (b) of attorney’s fees for fees incurred in connection with this appeal. The judgment is affirmed and the plaintiff’s application for reasonable attorney’s fees is remanded to the trial court for determination.

The jury reasonably could have found the following facts. On February 24, 1989, Officers Alex Gallo and Hector Medina of the Waterbury police department arrested the plaintiff at the Nite Life Cafe. In the course of the arrest, Gallo and Medina punched and beat the plaintiff, forcing him to the ground. With his knee behind the plaintiff’s head, one of the officers jammed the plaintiff’s face into the floor. As a result, one of the plaintiff’s teeth was knocked out and two others were chipped.

At the conclusion of the plaintiffs case, the defendants moved for a directed verdict which the court granted as to the city and denied as to the officers. Ultimately, the jury returned a verdict for the plaintiff for $15,000 in compensatory damages, $3000 in punitive damages against Gallo, and $1000 in punitive damages against Medina. Pursuant to 42 U.S.C. § 1988, the trial court awarded the plaintiff attorney’s fees. The officers subsequently filed a motion to set aside the verdict. The trial court summarily denied the motion, and this appeal ensued.

I

The officers claim that the trial court improperly denied a motion for a directed verdict and a motion to set aside the verdict. In essence, they argue that the plaintiff failed to establish a prima facie case of liability under § 1983. They assert, in particular, that the plaintiff (1) failed to establish a causal link between the actions of the police and the injury that the plaintiff sustained and (2) failed to establish the requisite mental state on which to base an award of punitive damages. We are not persuaded.

Our review of a trial court’s refusal to direct or set aside a verdict is limited and well settled. When reviewing the action of the trial court, we consider the evidence in the light most favorable to sustaining the judgment. Munson v. United Technologies Corporation, 28 Conn. App. 184, 191, 609 A.2d 1066 (1992). “A directed verdict is justified if on the evidence the jury could not reasonably and legally reach any other conclusion than that embodied in [a verdict for the officers] ... or if the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party. . . . When a jury has returned a verdict and the trial court has refused to set it aside, [t]he court’s decision will be upheld on appeal if, from the evidence presented, the jury could reasonably have concluded as it did.” (Citations omitted; internal quotation marks omitted.) Hall v. Winfrey, 27 Conn. App. 154, 157-58, 604 A.2d 1334, cert. denied, 222 Conn. 903, 606 A.2d 1327 (1992); Boehm v. Kish, 201 Conn. 385, 388-89, 517 A.2d 624 (1986).

In this case, the facts fully support the court’s ruling. The plaintiff testified that, in the course of an argument with a former girl friend inside the Nite Life Cafe, someone pushed him. Immediately thereafter, Gallo and Medina initiated his arrest by removing the plaintiff from the main area of the bar. According to the plaintiff, the officers then beat him and forced his face into the floor, causing his mouth to bleed profusely and causing extensive damage to his teeth. Eyewitnesses substantially corroborated the plaintiff’s testimony.

The testimony elicited during the plaintiff’s case-in-chief sufficiently established a causal connection between the officers’ conduct and the plaintiff’s injury. Relying on this testimony, the jury was well within reason in determining that the officers, as opposed to someone else prior to the arrest, injured the plaintiff. The officers, therefore, have not provided a basis on which we can conclude that the jury’s verdict was unreasonable.

In addition, the jury reasonably awarded punitive damages. An award of punitive damages pursuant to § 1983 must be predicated on facts establishing evil motive, intent, recklessness or callous indifference. Smith v. Wade, 461 U.S. 30, 51, 103 S. Ct. 1625, 75 L. Ed. 2d 632 (1983). Generally, circumstantial evidence is used to prove the requisite state of mind in a given case. State v. Stanley, 223 Conn. 674, 678, 613 A.2d 788 (1992). In this case, the jury could reasonably infer from the force used by the officers that they were at least callously indifferent toward the physical well-being of the plaintiff. Furthermore, when instructing the jury, the trial court emphasized the prerequisite to punitive damages, i.e., the test set forth in Smith v. Wade, supra. Thus, the trial court properly denied the defendants’ motion for a directed verdict and the motion to set aside the verdict.

II

The officers next claim that the trial court improperly instructed the jury to resume deliberations without rehearing the testimony of witnesses. Because the officers failed to raise this claim during the course of deliberations, the trial court had no opportunity to rule on this matter until they moved to set aside the verdict. The officers have, in effect, waived this claim, and we, accordingly, will not consider it. See Jutkowitz v. Department of Health Services, 220 Conn. 86, 95-96, 596 A.2d 374 (1991) (“failure to utilize remedy available to cure defect can constitute a waiver of the right to object to the alleged defect”).

III

The officers next claim that the trial court improperly declined to set aside the verdict because of inappropriate statements made by plaintiff’s counsel in the course of closing argument. Before closing argument, the plaintiff requested the judge to instruct the jury that it may draw negative inferences from the officers’ failure to call Rick Surritti as a witness. See, e.g., Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960). The trial court denied the plaintiffs request. During closing argument, counsel for the plaintiff said to the jury, “On cross-examination I asked [Officer Gallo] who was this friend of yours that was there, and he said that Rick Surritti aided in the arrest. Who is Rick Surritti? Who is he?” The officers now assert that these references to Surritti were improper. We decline to review this claim as well because counsel for the officers neither objected to the statements at issue nor sought a curative instruction subsequent to the closing argument. State v. Negron, 221 Conn. 315, 330, 603 A.2d 1138 (1992); State v. Falcone, 191 Conn. 12, 23 n.13, 463 A.2d 558 (1983).

IV

The officers’ final contention is that the trial court improperly admitted rebuttal testimony. After the officers rested their case, the plaintiff called two additional witnesses. Over defense counsel’s objection, the court permitted the introduction of testimony from Ariel Rojas. The officers did not, however, take an exception to the court’s ruling.

Practice Book § 288 states that “[a]n exception to [an evidentiary] ruling must be taken in order to make it a ground of appeal.” (Emphasis added.) “The purpose of the rule requiring that an exception be taken that distinctly states the objection and the grounds therefor is to alert the court to any claims of error while there is still an opportunity for correction.” State v. Utz, 201 Conn. 190, 207, 513 A.2d 1191 (1986). This rule is essential to avoid trial by ambush. State v. King, 216 Conn. 585, 590, 583 A.2d 896 (1990). Here, the officers have not complied with Practice Book § 288 and thus have not preserved this claim as a ground for appeal.

y

Because our result in this case is to affirm a favorable verdict for the plaintiff, we next consider the plaintiff’s claim for attorney’s fees for services rendered on this appeal. Section 1988 (b) of title 42 of the United States Code provides that “[i]n any action or proceeding to enforce a provision of section . . . 1983 of this title . . . the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee.” Federal courts have regularly applied this section to cover a prevailing party on appeal. See, e.g., Hutto v. Finney, 437 U.S. 678, 693, 98 S. Ct. 2565, 57 L. Ed. 2d 522 (1978); Hastings v. Maine-Endwell Central School District, 676 F.2d 893, 896-97 (2d Cir. 1982). The United States Supreme Court has held that a plaintiff is a prevailing party pursuant to § 1988 if the plaintiff “succeed[s] on any significant issue in the litigation which achieves some benefit the part[y] sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983).

While we agree with the plaintiff that attorney’s fees are recoverable when on appeal a plaintiff successfully defends a favorable trial court judgment, the decision to award reasonable attorney’s fees is a discretionary matter more appropriately determined by the trial court. Because the plaintiff has prevailed in this appeal, we remand for determination by the trial court the plaintiffs application for reasonable attorney’s fees in connection with this appeal. See Cowan v. Prudential Ins. Co. of America, 935 F.2d 522, 524 (2d Cir. 1992) (detailed discussion of factors involved in calculating reasonable appellate attorney’s fees).

The judgment is affirmed and the plaintiff’s application for reasonable attorney’s fees is remanded to the trial court for determination of whether such fees should be allowed and, if so, in what amount.

In this opinion the other judges concurred.

       We note at the outset that when a party to an appeal makes only a bare assertion of a particular claim and offers no analysis, this court and our Supreme Court may consider the claim abandoned. State v. Hernandez, 204 Conn. 377, 394 n.9, 528 A.2d 794 (1987); State v. Jones, 29 Conn. App. 304, 615 A.2d 149 (1992). In this case, the defendants’ analysis, though limited, is not so minimal as to preclude appellate scrutiny.

       The plaintiff asserted the claim for attorney’s fees in the conclusion of his brief. The officers failed to respond to this claim in a reply brief. Neither 42 U.S.C. § 1988 (b), our Connecticut decisional law or our rules of appellate practice specify the proper method of raising a claim for attorney’s fees on appeal. While the claim could have been made, subject to the outcome of the appeal, directly to the trial court in a postjudgment motion, we believe that the matter is properly before us. See Fiacco v. City of Rensselaer, 663 F. Sup. 743, 744 n.1 (N.D.N.Y. 1987). As an additional matter, we note that a party’s failure to analyze a particular issue may preclude appellate scrutiny. The plaintiff has offered statutory and case law support, although limited, for his claim for attorney’s fees. We, therefore, will address it. See footnote 1, supra.

       We note that when a defendant requests attorney’s fees as a prevailing party under 42 U.S.C. § 1988, the analysis is significantly different and more involved. In such cases, the inquiry is not whether the defendant succeeded on a significant issue of the litigation, but whether the plaintiff’s claim was frivolous. See, e.g., Faith Center v. Hartford, 192 Conn. 434, 438, 472 A.2d 16, cert. denied, 469 U.S. 108, 105 S. Ct. 432, 83 L. Ed. 2d 359 (1984) (“[a] plaintiff should not be assessed his opponent’s attorney’s fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so”); Hastings v. Maine-Endwell Central School District, 676 F.2d 893 (2d Cir. 1982) (same).


text:
    Sakson Nursery, Inc. v. Planning and Zoning Board of Appeals of the Town of Greenwich et al.
    (10526)
    O’Connell, Heiman and Schaller, Js.
    Argued January 19 —
    decision released March 16, 1993

      J ames D Alton Murphy, for the appellant (plaintiff).

      Eugene F. McLaughlin, Jr., assistant town attorney, with whom, on the brief, was James W. Macauley, assistant town attorney, for the appellee (named defendant).
   O’Connell, J.

The plaintiff appeals from the judgment of the trial court upholding the decision of the defendant Greenwich planning and zoning board of appeals terminating the use of the plaintiff’s property as a commercial nursery. The plaintiff claims that the trial court improperly (1) failed to find that the municipal zoning regulation existing at the time the zoning board of appeals rendered its decision had been repealed or superseded by General Statutes (Rev. to 1989) § 8-2, as amended by No. 89-277 of the 1989 Public Acts, (2) failed to consider the previous property owner’s intent to maintain continuously a legally nonconforming use, and (3) failed to admit or consider evidence of the previous property owner’s intent. We affirm the judgment of the trial court.

In 1933, Hildegard Sakson Krueger purchased the subject property and, with her husband, started a small commercial nursery. In 1987, she sold the property to the plaintiff corporation for use as a commercial nursery. Several months after the sale, in response to increased activity at the nursery, the neighbors petitioned the zoning enforcement officer to issue a cease and desist order to the plaintiff and to compel the plaintiff to secure a special exception. The neighbors posited that the nursery business had been abandoned by Krueger and, therefore, that the nonconforming use had lapsed. The officer declined to issue the order, reasoning that the nursery was operating under an existing permitted use and not a nonconforming use.

The zoning enforcement officer’s decision was appealed to the defendant board of appeals by one of the neighbors. The board of appeals found, in accordance with the neighbor’s contention, that the small commercial nursery operated by Krueger was a nonconforming use and that it had been discontinued in recent years due to the declining health of the owner. Consequently, it sustained the appeal on two grounds: (1) the right to operate a commercial nursery was a nonconforming use that had lapsed by nonuse, and (2) the proposed use constituted a substantial intensification of the former nursery operation and was, therefore, a change or addition in a nonconforming use in violation of Greenwich Municipal Codes § 6-141 (b).

The plaintiff raised only the first ground on its appeal to the trial court. When the time for appeal expired, without an appeal of the second ground, the plaintiff became bound by it. See Rogers v. Commission on Human Rights & Opportunities, 195 Conn. 543, 489 A.2d 368 (1985). Whether the plaintiff could have prevailed if it had challenged the second ground is now a moot question because this court will not consider issues that are not before it. Archambault v. Wadlow, 25 Conn. App. 375, 378, 594 A.2d 1015 (1991).

It is fundamental zoning law that where a local board gives more than one reason for its decision, we will sustain the decision on appeal if even one of the stated reasons is sufficient to support it. Levine v. Town Plan & Zoning Commission, 25 Conn. App. 199, 205, 594 A.2d 9 (1991). In the present case, the second reason, which was not challenged, supports the decision as a matter of law. Accordingly, we do not reach the plaintiff’s claims that are directed to the first reason.

The judgment is affirmed.

In this opinion the other judges concurred.

       Greenwich Municipal Code § 6-141 (b) (5) provides: “Where a nonconforming use of land or structure has ceased for a period of one (1) year or more or has been changed to a conforming use, the non-conforming use shall not again be permitted.”

       Greenwich Municipal Code § 6-141 (b) provides in part that a nonconforming use may not be “changed, altered or added to” except under certain delineated exceptions.


text:
    Alfonso Suarez v. Dickmont Plastics Corporation
    (11078)
    Landau, Heiman and Schaller, Js.
    Argued December 10, 1992 —
    decision released March 16, 1993

      Alan I. Saltzman, with whom, on the brief, was Scott S. Centrella, for the appellant (plaintiff).

      Lewis S. Lerman, for the appellee (defendant).
   Schaller, J.

The plaintiff appeals from the trial court’s granting of summary judgment in favor of the defendant. The issue presented in this appeal is whether the trial court properly granted the defendant’s motion for summary judgment on the basis of the exclusive remedy provisions of the Workers’ Compensation Act. We affirm the judgment of the trial court.

The plaintiff alleged that while attempting to clean a plastics molding machine, he caught his right hand in a “feed chamber.” As a result, his fingers were partially amputated. He filed a claim with the workers’ compensation commission, and the commission approved a voluntary agreement between the plaintiff and the defendant in March, 1988. The plaintiff also filed a complaint with the Superior Court claiming that the defendant’s “serious and wilful misconduct” caused the injury. In response, the defendant raised a special defense asserting that the plaintiff’s action was barred by the exclusive remedy provisions embodied in General Statutes § 31-284 of the Workers’ Compensation Act.

The defendant filed a motion for summary judgment, again raising the issue of exclusivity under § 31-284. The defendant also argued that no genuine issue of material fact existed regarding the exception to exclusivity set forth in Jett v. Dunlap, 179 Conn. 215, 425 A.2d 1263 (1979). In support of the motion, the defendant filed the affidavit of the defendant’s president, Richard Scalise. In that affidavit, Scalise stated that he “did not intend for the plaintiff to be injured.” The defendant also filed a portion of the plaintiff’s deposition testimony which included the following colloquy:

“Q: Do you believe that your employer intended for you to be injured?

“A: No.”

The plaintiff responded to the defendant’s motion for summary judgment with the affidavit of Michael Shanok, a registered professional engineer. In his affidavit, Shanok explained that “requiring an employee to place his hands or hand into the energized machine’s feed chute is knowingly calling upon him to perform an extremely dangerous act.” Shanok concluded that “[t]he exercise of ordinary common sense was all that was necessary to determine that the combination of events which resulted in Mr. Suarez’s injury would be, sooner or later, a predictable and probable event.” Ultimately, the trial court granted the defendant’s motion for summary judgment on the basis of the exclusive remedy provisions of the Workers’ Compensation Act. This appeal ensued.

The plaintiff claims that the trial court misapplied the exclusivity of remedy provision embodied in § 31-284. We disagree.

We initially note that a trial court’s granting of summary judgment must comport with well established standards. Practice Book § 384 provides that “[t]he judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” While the party seeking summary judgment has the burden of establishing the nonexistence of any material fact, it is nevertheless “incumbent upon the party opposing summary judgment to establish a factual predicate from which it can be determined, as a matter of law, that a genuine issue of material fact exists.” (Internal quotation marks omitted.) Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 247, 618 A.2d 506 (1992); Connell v. Colwell, 214 Conn. 242, 251, 571 A.2d 116 (1990). The mere presence of an adverse claim, however, will not in itself defeat the motion. Wadia Enterprises, Inc. v. Hirschfeld, supra; Farrell v. Farrell, 182 Conn. 34, 39, 438 A.2d 415 (1980).

Section 31-284 (a) provides in pertinent part that “[a]n employer shall not be liable to any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment . . . but an employer shall secure compensation for his employees as provided under this chapter . . . . All rights and claims between employer and employees . . . arising out of personal injury . . . sustained in the course of employment are abolished other than rights and claims given by this chapter . . . .” This court and our Supreme Court have consistently held that “the exclusivity provisions of the Workers’ Compensation Act operate as a total bar to actions brought by employees against employers for job related injuries. . . .” (Citations omitted; internal quotation marks omitted.) Quimby v. Kimberly Clark Corporation, 28 Conn. App. 660, 666, 613 A.2d 838 (1992); see, e.g., Sharp v. Mitchell, 209 Conn. 59, 66, 546 A.2d 846 (1988).

Our Supreme Court, however, has carved out a narrow exception to exclusivity for cases in which an employer has committed an intentional tort. The decision in Jett v. Dunlap, supra, represents the genesis of this exception. There, the court stated: “Where such wilful or serious misconduct is engaged in by an employer . . . then a plaintiff may pursue common-law remedies.” Id., 221. The scope of this common law action, known as the Jett exception, was further delineated in Mingachos v. CBS, Inc., 196 Conn. 91, 102, 491 A.2d 368 (1985), where the Supreme Court held that “[t]o bypass the exclusivity of the act, the intentional or deliberate act or conduct must have been designed to cause the injury that resulted.” (Emphasis added.)

In discussing the critical element of intent, the court in Mingadlos held that “[t]he word ‘intent’ . . . denote[s] that the actor desires to cause [the] consequences of his act, or that he believes that the consequences are substantially certain to follow from it.” (Emphasis added; internal quotation marks omitted.) Id., 101. Further, the court in Mingadlos refused to. extend the Jett exception to include “ ‘accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury.’ ” (Emphasis added.) Id., 108, quoting 2A A. Larson, Workmen’s Compensation Law (1976) § 68.13, p. 13-8; see also American National Fire Ins. Co. v. Schuss, 221 Conn. 768, 775-77, 607 A.2d 418 (1992).

We conclude that the trial court properly granted summary judgment in favor of the defendant. The defendant supported its motion for summary judgment with affidavits clearly establishing the nonexistence of “intent” as defined in Mingadlos. The defendant’s president explained that he did not intend to injure the plaintiff. Moreover, the plaintiff, in his deposition testimony, unequivocally admitted that he did not believe that his employer had intended to harm him. Through this evidence, the defendant met its burden of establishing the absence of “intent” — the prerequisite to liability under the Jett exception.

It was incumbent on the plaintiff, therefore, to establish the existence of a genuine issue of material fact regarding the applicability of the Jett exception. In response to the defendant’s motion, the plaintiff primarily relied on the affidavit of Shanok. The strongest portions of the Shanok affidavit state that the defendant must have known of the extreme danger involved in cleaning the plastic molding machine and that sooner or later injury was likely to occur. With this evidence, the plaintiff contends that the exclusivity provisions of the Workers’ Compensation Act are inapplicable.

The plaintiff’s challenge to the trial court’s granting of summary judgment is predicated on the notion that, at a minimum, his employer’s conduct “created a situation in which the employee-appellant’s injuries were substantially likely to occur.” The plaintiff’s argument and evidence focuses on the likelihood of injury, rather than the defendant’s intent to harm the plaintiff. The plaintiff’s evidence failed to establish that the defendant’s intentional acts were designed to cause injury. Nor did the plaintiff offer evidence establishing that the defendant believed the plaintiff’s injury was substantially certain to follow from his employer’s conduct. “ ‘Unless the employer has commanded or expressly authorized the assault, it cannot be said to be intentional from his standpoint any more than from the standpoint of any third person.’ ” Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 535, 494 A.2d 555 (1985), quoting A. Larson, supra, § 68.21.

The plaintiff also posits that the trial court misapplied the “substantial certainty” test for establishing the intent element of the Jett exception. This argument is unpersuasive. In its memorandum of decision, the trial court explained the substantial certainty test at some length, relying on precedent from our Supreme Court. It then concluded that “substantial certainty is not tantamount to a high probability of harm.” See Quimby v. Kimberly Clark Corporation, supra, 667 (“ ‘high risk or probability of harm is not equivalent to the substantial certainty without which an actor cannot be said to intend the harm in which his act results’ ”). We agree with the trial court that “substantial certainty” as defined in Mingadlos centers on whether the employer believed the injury was substantially certain to follow the employer’s acts or conduct. As previously stated, it is the nonaccidental nature of the injury that ultimately triggers the Jett exception. Mingachos v. CBS, Inc., supra, 108.

Because the plaintiff failed to offer evidence supporting the application of the Jett exception, he has not established a factual predicate from which we can conclude, as a matter of law, that a genuine issue of material fact exists. Wadia Enterprises, Inc. v. Hirschfeld, supra, 247. Accordingly, the trial court properly granted summary judgment in the defendant’s favor.

We note that the Jett exception is necessarily extremely limited. Our Supreme Court has “recognize[d] that over the years the legislature has worked out a complex statutory scheme in promulgating workers’ compensation statutes and that [a]n integral part of this complex structure is the accepted proposition that an employee surrenders other claims for the certainly of the exclusive workers’ compensation remedy.” (Internal quotation marks omitted.) Bouley v. Norwich, 222 Conn. 744, 760, 610 A.2d 1245 (1992). Thus, while the plaintiff’s evidence may indeed be sufficient to support a common law negligence action, it falls short of establishing a genuine intentional injury. See Perille v. Raybestos-Manhattan-Europe, Inc., supra, 534 (while employer may have been negligent, none of plaintiff’s allegations, fairly read, indicated employer genuinely intended occurrence of resulting injuries).

The judgment is affirmed.

In this opinion the other judges concurred.


author: Foti, J.

text:
    Clare R. Banthin et al. v. Shoreline Plumbing and Heating Supply Corporation et al. Clare R. Banthin et al. v. Normand L. Poulin et al.
    (10914)
    Dupont, C. J., Daly and Foti, Js.
    Argued December 2, 1992 —
    decision released March 16, 1993

      PaulM. Kaplan> with whom, on the brief, was Robert A. Ginsberg, for the appellant (defendant Anita Poulin).

      Neil A. Lippman, with whom was Alice Carey, for the appellees (plaintiffs).
   Foti, J.

The defendant Anita Poulin appeals from the judgment rendered, after a court trial, ordering her to reconvey certain property to the defendant Normand Poulin subject only to the encumbrances of record. The defendant alleges that the trial court abused its discretion in not ordering the property reconveyed subject to a $75,000 mortgage. We affirm the judgment of the trial court.

The appeal arises from two related actions filed by the plaintiffs, Clare R. Banthin, Mary Ann Wood and Clifford R. Banthin, who are successor cotrustees of the John F. Banthin trust. The first action, which is not part of this appeal, involved the breach of a commercial lease of property owned by the trust. It was brought against the defendant Shoreline Plumbing and Heating Supply Corporation as lessee, and the defendant Normand Poulin as guarantor of the lease. The second action was an equitable action brought against the defendants Normand and Anita Poulin. The plaintiffs sought to set aside a conveyance from Normand Poulin to Anita Poulin of property known as 33 Old Oyster Dock Landing, unit 33 (boat slip). The plaintiffs alleged that Normand Poulin had transferred the property to prevent its being used to satisfy Normand’s obligation in the first action. The two cases were consolidated and tried to the court.

By oral decision from the bench, the trial court rendered judgment in the first action for the plaintiffs and assessed damages for past rent due, unpaid property taxes and costs for repair of the trust property. The court also awarded attorney’s fees to the plaintiffs. In the second action, alleging fraudulent conveyance, an ex parte prejudgment remedy had been granted to the plaintiffs in the amount of $80,000 against Normand Poulin’s interest in the boat slip. The court found that no fraudulent conveyance had occurred. The court rendered judgment for the plaintiffs, however, finding that a constructive trust had been established, and ordered Anita Poulin to reconvey the boat slip to Normand Poulin. The court also gratuitously found no fraudulent conveyance proven with respect to the marital home and ordered that title remain with Anita Poulin.

The defendants Normand and Anita Poulin are husband and wife. On appeal, Anita Poulin claims that she “purchased” the boat slip with the proceeds of a $75,000 mortgage loan secured by the marital home at 157 Gulf Street in Milford. It is undisputed that Normand Poulin conveyed his interest in both the home and the boat slip to Anita Poulin on August 19, 1988. Both Normand and Anita Poulin testified at trial that Anita gave no financial consideration for the transfer.

Anita Poulin does not contest the court’s finding that a constructive trust resulted from the transfer or the court’s order of reconveyance. Her sole claim on appeal is that the trial court abused its discretion by not ordering that the boat slip be reconveyed subject to a $75,000 mortgage obligation that she claims was associated with its “purchase.” We do not agree.

“The imposition of a constructive trust by equity is a remedial device designed to prevent unjust enrichment. . . . Thus, a constructive trust arises where a person who holds title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.” (Citation omitted.) Cohen v. Cohen, 182 Conn. 193, 202-203, 438 A.2d 55 (1980); Wing v. White, 14 Conn. App. 642, 644, 542 A.2d 748 (1988).

“In an equitable proceeding, the trial court may examine all relevant factors ‘to ensure that complete justice is done.’ Reynolds v. Ramos, 188 Conn. 316, 320, 449 A.2d 182 (1982). ‘The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.’ Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981).” Harbour Landing Development Corporation v. Herman, 27 Conn. App. 98, 101-102, 603 A.2d 779 (1992). Our review is quite limited, and is usually confined to a determination of whether the trial court’s decision to award the particular equitable relief was reasonable. Reynolds v. Ramos, supra, 321. Our review is even more limited in a case such as this, where the imposition of a constructive trust is not contested. Here, our review is restricted to whether the court abused its discretion in establishing the terms of the constructive trust by not recognizing the $75,000 mortgage secured by the marital home as an obligation to be paid by Normand Poulin to Anita Poulin, as a condition of reconveyance. “When we review the exercise of discretion by the trial court, every reasonable presumption will be given in favor of the correctness of its ruling.” Id., 320-21. On appellate review, the ultimate issue is whether, according to recognized principles of equity, abuse of discretion is manifest or an injustice appears to have been done. Thomas v. Thomas, 159 Conn. 477, 480, 271 A.2d 62 (1970).

The parties stipulated to certain facts. The trial court made no subsidiary findings of fact when it found a constructive trust existed and ordered the boat slip conveyed back to Normand Poulin. The defendants failed to seek an articulation of the trial court’s findings with respect to the terms of the trust pursuant to Practice Book § 4051; nor did they seek an order compelling the trial court to file a memorandum pursuant to Practice Book § 4183 (1). Anita Poulin contends that the trial court abused its discretion by not ordering the conveyance subject to the mortgage. It is her burden as appellant, however, to provide an adequate record for review. Practice Book § 4061; Walton v. New Hartford, 223 Conn. 155, 164-65, 612 A.2d 1153 (1992). Here, Anita Poulin asks us to review her claim on the basis of an unsigned transcript to determine whether the court’s action constituted an abuse of discretion.

She argues that once the court found that she held the boat slip in trust for her husband, the court was bound to find that the terms of the trust subjected the property to a $75,000 mortgage. The record does not support her claim that the court made any specific “findings” relative to the terms of the trust. Anita Poulin points to the court’s statement that “the dock was only held in trust for [Normand Poulin] by his wife until he had monies ... to reconvey it back to him.” The court, here, was merely reiterating the words of both Normand and Anita Poulin in finding specifically that a constructive trust had been created.

The record is clear that the trial court understood the ramifications of its order and took into account all of the facts and circumstances before concluding that the reconveyance would be free of the $75,000 obligation on the Gulf Street property. Normand Poulin was permitted to address the court as follows: “In transferring the property back to me on the boat slip, Your Honor, my wife has a $75,000 note on the house on Gulf Street, so if the property gets transferred back to me and the boat slip gets foreclosed and the money goes to the [plaintiffs], Anita is being charged with an additional $75,000 on the house.” The court responded: “I can’t do anything about it. . . . There was no doubt in my mind that I tipped in favor of the plaintiffs regarding the boat dock.”

Normand Poulin purchased the boat slip in March, 1987, for $85,000. He transferred that property as well as the marital home to Anita Poulin in August, 1988, for no financial consideration. At some point, Anita Poulin obtained a $75,000 mortgage secured by the marital home and for which she is liable. Anita Poulin testified that Normand transferred the home to her because she needed collateral to obtain credit cards, a car and other items in her own name. Since the mortgage note was not entered into evidence, however, the record is insufficient to show whether the $75,000 mortgage was, in fact, used to “purchase” the boat slip, nor does it show whether the mortgage was obtained before the house was conveyed to Anita. The mortgage apparently was not recorded.

On the basis of the available record, we must conclude that the trial court found that the Poulins had failed to establish that the trust required the reconveyance of the property subject to the mortgage. Without an articulation of the court’s ruling, we cannot say that the trial court abused its discretion by balancing the equities in favor of the plaintiffs and leaving Anita Poulin with her debt obligation.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs at no time sought to set aside Normand Poulin’s conveyance of the marital home at 157 Gulf Street in Milford as a fraudulent conveyance, and the attachment was placed only on the boat slip. The judgment file is obviously in error as to any orders dealing with title to the marital home.

       It is unclear whether there still exists a $40,000 first mortgage on the boat slip, held by People’s Bank.