author: Dupont, C. J.

text:
    Home Insurance Company v. Aetna Life and Casualty Company
    (12434)
    Dupont, C. J., and Lavery and Schaller, Js.

      Argued April 6
    decision released June 8, 1994

      William F. Gallagher, with whom, on the brief, were Cynthia C. Bott and Roger B. Calistro, for the appellant (plaintiff).

      Edward W. Case, for the appellee (defendant).

      Lois B. Tanzer, for Barry D. Schuss.
   Dupont, C. J.

The plaintiff appeals from the summary judgment rendered by the trial court in favor of the defendant. This is a subrogation action to recover an amount paid by the plaintiff insurer for damages caused by a fire at the Emanuel Synagogue in West Hartford. The fire was set by Barry Schuss who pleaded guilty to arson in the third degree in violation of General Statutes § 53a-113 (a). Schuss’ parents are insured by the defendant.

The plaintiff, as the insurer and assignee of the Emanuel Synagogue, paid its insured $696,539.71 for the damage caused by the fire and commenced an action against Schuss to recover the amount paid. As a special defense, Schuss initially pleaded that he had been “exposed to various experiences in his personal life so as to result in a growing psychological vulnerability [and] . . . his loss of a substantial ability to control himself.” Schuss later withdrew the special defense, and the court rendered judgment, in accordance with a stipulation, against Schuss for $696,539.71 plus interest. The plaintiff and Schuss stipulated that the plaintiff would seek to satisfy the judgment only to the extent that Schuss had insurance coverage.

The plaintiff then commenced a subrogation action against the defendant, the insurer of Schuss’ parents, to recover the amount of the judgment obtained against Schuss. The defendant did not deny that Schuss qualified as an insured under a general liability policy it issued to Schuss’ parents. The defendant, however, pleaded as a special defense that it had no obligation to pay the judgment because Schuss’ conduct of August 15,1983, fell within an exclusion of the policy’s coverage. The exclusion provides that the insurer is not liable for property damage “which is expected or intended by the insured.”

The plaintiff filed an application for order pursuant to General Statutes § 52-146f for the release of certain confidential psychiatric records of Schuss. The plaintiff claimed that the defendant’s special defense made Schuss’ mental condition an issue in the case. The trial court denied the plaintiff’s application on the ground that the defendant, not Schuss, introduced Schuss’ mental condition as an issue in the case. The court also concluded that under the principles of subrogation the plaintiff held the contractual rights of Schuss but not his personal rights such as the privilege of confidentiality.

After the denial of the plaintiff’s application, the defendant filed a motion for summary judgment, claiming that Schuss’ plea of guilty to arson in the third degree conclusively established that he intended to cause damage to the synagogue, which would prevent him from being covered by the insurance policy. After the trial court denied the motion, the defendant filed a second motion for summary judgment, contending that statements made by Schuss in a deposition of December 18, 1990, indicated that he intended or expected to damage the synagogue, which allegedly would trigger the application of the policy exclusion. The trial court granted this motion for summary judgment on the ground that there was no evidence before the court “except that which indicates Schuss intended to start the fires and do damage.” The plaintiff claims on appeal that the trial court improperly (1) denied the application for an order releasing Schuss’ psychiatric records and (2) granted the motion for summary judgment.

I

The plaintiff claims that the trial court improperly denied the plaintiff access to the psychiatric records of Schuss. We agree.

Pursuant to General Statutes §§ 52-146d and 52-146e, psychiatric communications and records regarding the treatment or diagnosis of a patient’s mental condition are confidential and may not be disclosed without the consent of the patient or his authorized representative. General Statutes § 52-146f (5) contains an exception to the confidentiality statute, providing that “records may be disclosed in a civil proceeding in which the patient introduces his mental condition as an element of his claim or defense . . . and the court or the judge finds that it is more important to the interests of justice that the [records] be disclosed than that the relationship between patient and psychiatrist be protected.”

The plaintiff claims that the exception applies to this case because Schuss introduced his mental condition by pleading “psychological vulnerability” and a “substantial [inability to control himself” as a'special defense in the plaintiffs action against Schuss. Although the patient, Schuss, introduced his mental condition in the plaintiffs action against Schuss, and not in the plaintiffs action against the defendant, the plaintiff claims that the actions are one and the same because the action against Schuss is the underlying action to the subrogation action against the defendant. We agree.

The plaintiffs action against the defendant flowed out of the plaintiff’s stipulated judgment against Schuss and involved the same facts as the underlying action. Furthermore, under the principles of subrogation, a party that obtains a judgment against an insured defendant is substituted in place of the defendant for the purposes of an action against the insurer on the insurance policy. General Statutes § 38a-321; see 73 Am. Jur. 2d, Subrogation § 1 (1974). The party is “subrogated to all the rights of the defendant and shall have a right of action against the insurer to the same extent that the defendant in such action could have enforced his claim against such insurer had such defendant paid such judgment.” General Statutes § 38a-321. This principle of substitution links the action against the insured and the subsequent subrogation action against the insurer to such an extent that they can be regarded as one cause of action. Although they are commenced as separate actions, they combine to form a single “civil proceeding” for the purposes of General Statutes § 52-146Í (5).

The defendant, nevertheless, claims that because Schuss’ special defense was later withdrawn, Schuss did not introduce his mental condition as an issue in the case. We disagree. A pleading that is later withdrawn or superseded “ ‘remains in the case as a part of its history and is available to the adverse party as an admission.’ ” Schenck v. Pelkey, 176 Conn. 245, 248, 405 A.2d 665 (1978). In this case, Schuss’ special defense, although later withdrawn, served to introduce his mental condition and constitutes a waiver of the right to prevent the disclosure of his psychiatric records.

Finally, the purpose of the patient-psychiatrist privilege of confidentiality “is to give the patient an incentive to make full disclosure to a physician in order to obtain effective treatment free from the embarrassment and invasion of privacy” that could result from the release of the patient’s psychiatric records. State v. White, 169 Conn. 223, 234, 363 A.2d 143, cert. denied 423 U.S. 1025, 96 S. Ct. 469, 46 L. Ed. 2d 399 (1975); see also Bieluch v. Bieluch, 190 Conn. 813, 819, 462 A.2d 1060 (1983). “Communications that bear no relationship to the purpose for which the privilege was enacted do not obtain shelter under the statute and are admissible subject to the normal rules of evidence.” Bieluch v. Bieluch, supra, 819.

The patient may assert the privilege only “if he had a justified expectation that his communications would not be publicly disclosed.” State v. White, supra, 169 Conn. 234; see also Conn. Joint Standing Committee Hearings, Judiciary and Government Functions, Pt. 2, 1961 Sess., p. 853 (“[ojnce the question of a mental illness is introduced by the patient, there is no privilege after that at all for the patient”). In this case, Schuss did not have a justified expectation that his records would not be disclosed because he pleaded mental incapacity as a defense in the underlying action against him. As a result, the purpose of the privilege would not be achieved by allowing Schuss to assert it. Thus, we find pursuant to § 52-146f (5) “that it is more important to the interests of justice” to allow the disclosure of the psychiatric records than to protect the patient-psychiatrist relationship.

II

The plaintiff claims that the trial court improperly granted the defendant’s motion for summary judgment. We agree.

“Pursuant to Practice Book § 384, summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all the material facts . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book § 381. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the rionmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.” (Citations omitted; internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105-106, 639 A.2d 507 (1994).

Intent refers to an actor’s desire to cause the consequences of his act, or to the actor’s belief that the consequences are substantially certain to result from it. Id., 108; Mingachos v. CBS, Inc., 196 Conn. 91, 101, 491 A.2d 368 (1985). “Intent is clearly a question of fact that is ordinarily inferred from one’s conduct or acts under the circumstances of the particular case. . . . Thus, whether the actor knows that the consequences of his or her conduct are certain or substantially certain to result from his or her act and still proceeds with the conduct, so that he or she should be treated by the law as though he or she in fact desired to produce the result, is a question of fact for the jury. . . . It is for the finder of fact, not the court on summary judgment, to determine what inferences to draw. . . . [Sjummary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of . . . intent . . . .” (Citations omitted; internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 111. Nevertheless, “even with respect to questions of . . . intent . . . the party opposing summary judgment must present a factual predicate for his argument in order to raise a genuine issue of fact.” Wadia Enterprises, Inc. v. Hirschfeld, 224 Conn. 240, 250, 618 A.2d 506 (1992).

In this case, the only proof accepted by the trial court at the time of the motion for summary judgment showed that Schuss intended and expected to cause damage to the synagogue. Schuss’ statements in his deposition of December 18,1990, established that when he started the fire he expected and hoped to burn down the structure. As a result, the trial court concluded as a matter of law that the intentional act exclusion clause of the policy applied to deny coverage for Schuss’ conduct.

The trial court, however, did not consider whether the mental condition of Schuss affected the application of the policy’s intentional act exclusion clause. Connecticut has not yet considered this question, but other jurisdictions have determined that the conduct of an insured is not intentional for the purposes of an intentional act exclusion clause where the insured lacks a certain mental capacity. See, e.g., Globe American Casualty Co. v. Lyons, 131 Ariz. 337, 339, 641 P.2d 251 (App. 1982); Congregation of Rodef Sholom v. American Motorists Ins. Co., 91 Cal. App. 3d 690, 693-94, 154 Cal. Rptr. 348(1979); Rajspic v. Nationwide Mutual Ins. Co., 110 Idaho 729, 731-33, 718 P.2d 1167 (1986); Shelter Mutual Ins. Co. v. Williams, 248 Kan. 17, 22-24, 804 P.2d 1374 (1991); Transamerica Ins. Corp. v. Boughton, 177 Mich. App. 253, 255-56, 440 N.W.2d 922 (1989); State Farm Fire & Casualty Co. v. Wicka, 474 N.W.2d 324, 327-31 (Minn. 1991); Ruvolo v. American Casualty Co., 39 N.J. 490, 494-95, 189 A.2d 204 (1963); see generally annot., Liability Insurance: Intoxication or Other Mental Incapacity Avoiding Application of Clause in Liability Policy Specifically Exempting Coverage of Injury or Damage Caused Intentionally by or at Direction of Insured, 33 A.L.R.4th 983 (1984). Because this is an issue of first impression in Connecticut, we will now consider the relationship between mental capacity and intent for the purposes of insurance coverage.

In Connecticut, “insane” persons are, in appropriate circumstances, civilly liable for their intentional torts. Polmatier v. Russ, 206 Conn. 229, 236, 537 A.2d 468 (1988). This principle is based on several factors. For one, there is a strong public interest in compensating victims for their injuries. Id., 235. The law also dictates that when one of two innocent persons must suffer a loss, the person causing the injury should bear it. Id., 235-36. Finally, such a rule encourages those interested in an insane person’s estate to restrain him from inflicting injuries on others, and discourages sane tortfeasors from claiming insanity as a defense to their wrongful conduct. Id., 235-36.

The rule that mentally infirm persons face civil liability for intentional torts does not, however, preclude a holding that the actions of such persons are regarded as unintentional for the purposes of an intentional action exclusion clause of an insurance policy because the principles have different justifications. Intentional act exclusion clauses were adopted primarily to prevent individuals from benefiting financially when they deliberately injured others. Globe American Casualty Co. v. Lyons, supra, 131 Ariz. 339; Rajspic v. Nationwide Mutual Ins. Co., supra, 110 Idaho 73; Shelter Mutual Ins. Co. v. Williams, supra, 248 Kan. 23. An individual who lacks the capacity to conform his behavior to acceptable standards of society will not, however, be deterred by the existence or nonexistence of insurance coverage for injuries caused by his actions. Globe American Casualty Co. v. Lyons, supra, 340; Rajspic v. Nationwide Mutual Ins. Co., supra, 731; Shelter Mutual Ins. Co. v. Williams, supra, 23. Therefore, the consideration of mental capacity when interpreting an exclusionary clause is not inconsistent with the purposes of such an exclusion. Furthermore, both principles meet the public interest in compensating victims for their injuries. Under a rule whereby damages caused by an insured’s conduct are not denied coverage where the insured lacks a certain capacity, the injured person will have a redress for its damages even if the insured is judgment proof.

Several tests for determining whether the insured’s mental incapacity bars the application of an exclusionary clause have been enumerated. Under one test, an insured’s actions are not considered intentional where a derangement of the insured’s intellect deprived him of the capacity to control his actions in accordance with reason, and, while suffering from that condition, he acted on an irrational impulse. See, e.g., Globe American Casualty Co. v. Lyons, supra, 131 Ariz. 339; Congregation of Rodef Sholom v. American Motorists Ins. Co., supra, 91 Cal. App. 3d 694; Ruvolo v. American Casualty Co., supra, 39 N. J. 495. Under another test, an insured’s actions are considered intentional where, although he cannot appreciate the wrongfulness of his conduct, he understands the nature and consequences of his actions and intends to cause injury. See, e.g., Shelter Mutual Ins. Co. v. Williams, supra, 248 Kan. 24; Transamerica Ins. Corp. v. Boughton, supra, 177 Mich. 255-56. Under a third test, an insured’s actions are not considered intentional where, because of mental illness or defect, the insured does not appreciate the wrongfulness of his conduct, or is deprived of the capacity to control his actions regardless of his understanding of the wrongfulness of his action. See, e.g., State Farm Fire & Casualty Co. v. Wicka, supra, 474 N.W.2d 331.

We conclude that the mental condition of an insured may affect the application of a policy’s intentional act exclusion clause. The ruling is consistent with our Supreme Court’s holding in Polmatier, as it furthers the strong public interest in compensating victims for their injuries. We also conclude that, regardless of the test we adopt for determining intentional conduct for the purposes of an exclusionary clause, the trial court improperly granted summary judgment in this case. Here, Schuss placed his mental condition in issue by pleading mental incapacity as a special defense. Because his mental condition might affect the application of the policy exclusion, there is a genuine issue of material fact as to whether Schuss intended or expected to cause damage to the synagogue. This issue should have been resolved by the trier of fact, not the court on summary judgment, and the case must be remanded for trial.

At trial, the trier of fact must determine whether Schuss’ actions were intentional for the purposes of the intentional act exclusion clause. In making this determination, the trier of fact will consider Schuss’ psychiatric records. This determination is also to be made by considering whether, because of mental illness or defect, the insured did not understand the nature or wrongfulness of his conduct, or was deprived of the capacity to control his actions regardless of his understanding of the nature or wrongfulness of his action. See State Farm Fire & Casualty Co. v. Wicka, supra, 474 N.W.2d 331. We adopt this test because it addresses both the cognitive and volitional capacities of an insured. Id.

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

In this opinion the other judges concurred.

       The plaintiff filed the application after Schuss refused to release his psychiatric records to the plaintiff voluntarily. The plaintiff sought access to the following records: (1) treatment at the Institute for Living between 1984 and 1989, where Marvin Koff was his main treating physician; (2) treatment as an in-patient in December, 1983, at Yale-New Haven Hospital; and (3) treatment with psychiatrist Paul Graffagnino and a psychiatrist from Bethesda, Maryland, prior to August 15, 1983.

       During Schuss’ deposition of December 18, 1990, Schuss admitted that when he entered the synagogue and when he started the fire, he expected and hoped to cause damage to the synagogue. Other depositions of Schuss did not contain statements contradicting these admissions. The following questions were asked and the following responses were elicited from Schuss during his deposition:
      “Q. Okay, do you know the reason why you took matches [into the synagogue]?
      “A. Yes.
      “Q. And what is that reason?
      “A. To cause damage to the synagogue.
      “Q. And when you lit the match or matches to [objects in the synagogue] did you expect that you would cause damage to these objects?
      “A. Yes.
      * * *
      “Q. What did you expect to do in the sanctuary [of the synagogue]?

        “A. I expected to cause a lot of damage.
      “Q. What were you thinking when you entered the synagogue in August of 1983?
      “A. I was thinking to cause damage to the synagogue.
      “Q. And is that all you were thinking?
      “A. Yes.
      “Q. Were you thinking that you were going to burn down the entire synagogue?
      “A. Yes.
      “Q. Were you thinking that you just wanted to damage some objects that were stored in the synagogue?
      “A. I was hoping to burn down the synagogue.”

       General Statutes § 52-146d (2) provides: “ ‘Communications and records’ means all oral and written communications and records thereof relating to diagnosis or treatment of a patient’s mental condition between the patient and a psychiatrist, or between a member of the patient’s family and a psychiatrist, or between any of such persons and a person participating under the supervision of a psychiatrist in the accomplishment of the objectives of diagnosis and treatment, wherever made, including communications and records which occur in or are prepared at a mental health facility

       The plaintiff also claims that because a judgment creditor is “subrogated to all of the rights” of the insured defendant under General Statutes § 38a-321, the plaintiff as judgment creditor is entitled to Schuss’ rights as concern his privilege of confidentiality. The plaintiff claims that it has a right to obtain Schuss’ psychiatric records and submit them into evidence because it has all of Schuss’ rights under the principles of subrogation. Because we decide in favor of the plaintiff on another basis, we need not determine whether “all of the rights” includes the personal privilege of confidentiality.

       The trial court did not rely on the fact that the defendant pleaded guilty to a violation of General Statutes § 53a-113 (a), which has an element of intentionally starting a fire.

       This issue was considered in Rosa v. Liberty Mutual Ins. Co., 243 F. Sup. 407 (D. Conn. 1965), In Rosa, the plaintiff sought to recover from the defendant insurer after entry of a default judgment against the defendant’s insured for an intentional tort committed by the insured against the plaintiff. The insurance policy issued by the defendant to the insured contained an intentional act exclusion clause. The court found that the insured suffered from a mental illness that deprived him of the ability to control his actions, to understand the nature of his conduct, and to resist the impulse to act. As a result, the court concluded that the insured’s actions could not be regarded as intentional within the meaning of the insurance policy.

       Several jurisdictions have recognized distinctions between placing liability on an insane person for intentional torts and interpreting intentional act exclusion clauses of insurance policies. See, e.g., Rajspic v. Nationwide Mutual Ins. Co., supra, 110 Idaho 731; Shelter Mutual Ins. Co. v. Williams, supra, 248 Kan. 22-23.

       We note that while the construction of an unambiguous insurance contract is a question of law for the court; Aetna Life & Casualty Co. v. Bulaong, 218 Conn. 51, 558 A.2d 138 (1991); the determination of the insured’s intent as to the manner in which the insured behaved for the purposes of the insurance contract is a question of fact. See Suarez v. Dickmont Plastics Corp., supra, 229 Conn. 111.

       This test is also consistent with our test for mental incapacity in the criminal context. See General Statutes § 53a-13 (a).


source: Caselaw Access Project

author: Landau, J.

license: Public Domain

text:
    State of Connecticut v. Richard Torres
    (12320)
    (12504)
    Lavery, Landau and Schaller, Js.
    Argued January 6
    decision released July 12, 1994

      Francis T. Mandanici, assistant public defender, for the appellant (defendant).

      John A. East III, deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and James Dinnan, assistant state’s attorney, for the appellee (state).
   Landau, J.

The defendant appeals from the trial court’s judgment revoking his probation and committing him to the custody of the commissioner of correction to serve the suspended portion of a sentence received for two drug convictions under General Statutes § 21a-277 (a). He claims that the trial court (1) improperly admitted hearsay evidence at his probation revocation proceeding, (2) improperly based the revocation of his probation on charges not enumerated in the charging documents, and (3) improperly found that he had violated his probation pursuant to General Statutes § 53a-32, and therefore abused its discretion by imposing the original sentence.

At the revocation hearing, the trial court found the following facts. On August 12, 1988, the defendant was convicted of two separate drug violations and sentenced to two concurrent terms of imprisonment of eight years, suspended after three years, and three years probation. On March 18,1992, the defendant was released and placed on probation. A probation officer reviewed with the defendant the conditions of his release, under which the defendant agreed, inter alia, not to violate any criminal law of the United States, Connecticut or any other state or territory. The defendant signed a standard conditions of probation form.

On May 24, 1992, the defendant went uninvited to the home of Kathy Foster. Foster pushed the defendant in an effort to block the defendant’s entrance to her apartment. In an attempt to enter, the defendant pushed and struck Foster. Foster’s houseguest, Elias Torres, interceded and began to struggle with the defendant. The defendant stabbed Elias Torres in the abdomen and right forearm. Following a telephone call from Foster, police officer Joseph Pirolo arrived, but the defendant had left Foster’s home. The victim and Foster related the events to the officer, and the defendant was arrested that same day for assault in the first degree in violation of General Statutes § 53a-59, assault in the third degree in violation of General Statutes § 53a-61, and criminal trespass in the first degree in violation of General Statutes § 53-107. On September 11, 1992, an information was filed charging the defendant with a violation of his probation, and a hearing was held on March 19,1993, in which the trial court found that the defendant had violated his probation in that he had violated the criminal laws of the state of Connecticut. The trial court revoked the defendant’s probation and ordered him to serve the suspended portion of the original sentence.

At the time the court made its ruling, the case law in the area of probation revocation had been enunciated by this court in State v. Davis, 29 Conn. App. 801, 618 A.2d 577 (1993). In Davis, this court held that the reasonable satisfaction standard to be applied in probation revocation hearings required only a minimal level of certainty that the probationer had violated a condition of his probation — a level of proof below that of a fair preponderance. Our Supreme Court in State v. Davis, 229 Conn. 285, 641 A.2d 370 (1994), held that the fair preponderance of the evidence standard is the appropriate standard of proof that the state must meet to establish a violation of a condition of probation. The Davis court remanded the case to the trial court for a new revocation hearing because it could not determine from its review of the record what standard of proof the trial court had applied.

In this case, the trial court found that “the state has met its burden of proof, that the defendant is in violation of the conditions of probation and on that basis the probation is found to be and has been violated.” The trial court did not articulate the standard of proof on which it had relied in revoking the defendant’s probation, but we have to presume that it correctly followed the rule set out by this court in Davis. The trial court, therefore, employed the incorrect standard of proof in its determination of whether the defendant had violated a condition of his probation. The fact that the trial court stated that the evidence was “clear to the court that these wounds were inflicted upon Elias Torres by this defendant” cannot be construed as satisfying the fair preponderance test. This case is controlled by our Supreme Court’s decision in Davis.

The judgment is reversed and the case is remanded for a probation revocation hearing.

In this opinion the other judges concurred.

       General Statutes § 21a-277 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       General Statutes § 53a-32 provides in pertinent part: “(a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge .... Upon such arrest and detention, the probation officer shall immediately so notify the court or any judge thereof. Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. . . .
      “(b) If such violation is established, the court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.”

       The defendant is the father of Foster’s child.

       Prior to the revocation hearing, those criminal charges were nolled.

       The trial court found, as a basis for the revocation of probation, that the defendant had committed the crimes of criminal trespass in the second degree in violation of General Statutes § 53a-108, assault in the first degree in violation of General Statutes § 53a-59, burglary in the first degree in violation of General Statutes § 53a-101, and burglary in the third degree in violation of General Statutes § 53a-103.

       In State v. Davis, supra, 229 Conn. 302, the trial court is quoted as having stated that it was “convinced that it has heard reliable and appropriate evidence to the effect that there has been a violation of the probation condition and so a violation is found.”

       Because we conclude that the trial court did not apply the appropriate standard of proof to the revocation determination, which requires a reversal of the judgment, we do not address the defendant’s claims of error.


author: Heiman, J. Schaller, J.,

text:
    Glastonbury Education Association v. Freedom of Information Commission et al. Marilyn Campbell, Commissioner of Education et al. v. Freedom of Information Commission et al.
    (12493)
    Heiman, Freedman and Schaller, Js.
    Argued March 29
    decision released July 12, 1994

      Colleen M. Murphy, commission counsel, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellant (named defendant in each case).

      William J. Dolan, for the appellee (plaintiff in the first case).

      Ralph E. Urban, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Bernard F. McGovern, Jr., assistant attorney general, for the appellee (plaintiff in the second case).
   Heiman, J.

The defendant freedom of information commission (FOIC) appeals from the judgments of the trial court sustaining the plaintiffs’ appeals from the defendant’s decisions. On appeal, the defendant claims that the trial court improperly found that the arbitration proceedings between the Glastonbury education association (GEA) and the Glastonbury board of education (board) were not subject to the Freedom of Information Act (FOIA); General Statutes § 1-15 et seq.; and in doing so failed to follow the applicable scope of judicial review. We affirm the judgment of the trial court.

The following facts are necessary for a proper resolution of this appeal. In 1990, the GEA and the board were negotiating a new contract. On December 8,1990, an arbitration hearing was held by a panel of three arbitrators pursuant to General Statutes § 10-153Í (c). The purpose of the hearing was to allow the GEA and the board to present a “last best contract” offer to the panel. See General Statutes § 10-153f (c) (4). Kathleen Stack, the editor of the Glastonbury Citizen, sought to attend the hearing. The panel members unanimously decided that the meeting was not open to the public because it constituted strategy or negotiations with respect to collective bargaining. See General Statutes §§ l-18a and 1-21 (a). Stack, along with James Hallas, the publisher of the Glastonbury Citizen, filed a complaint concerning the panel’s action with the FOIC. The FOIC found “that although the respondent panel’s hearings may and often do lead to further negotiation, the actual arbitration hearing, in this case, during which the parties offered evidence and argument, constituted a meeting within the meaning of § l-18a (b), which should have been open to the public pursuant to § 1-21.”

The plaintiffs appealed to the trial court pursuant to General Statutes §§ l-21i (b) and 4-183 (a) asserting that the FOIC improperly interpreted the definition of “meeting” in General Statutes § l-18a (b). The trial court determined that the FOIA is not applicable to arbitration hearings because the term meeting in General Statutes § 1-21 and defined in § l-18a (b) does not encompass arbitration proceedings. It relied on two opinions of the state board of labor relations; In the Matter of Branford Board of Education, Dec. No. 2274 (1984), and In the Matter of New Canaan Board of Education, Dec. No. 2400 (1985), and an opinion of the defendant FOIC; Radford v. Trumbull, Docket No. FIC 79-246 (1980). The trial court found that the arbitration proceeding fell into the category of “strategy or negotiations with respect to collective bargaining” as stated in § l-18a (b). The defendant FOIC appealed to this court.

An appeal from an FOIC decision is governed by the Uniform Administrative Procedure Act (UAPA). Board of Pardons v. Freedom of Information Commission, 19 Conn. App. 539, 546, 563 A.2d 314, cert. denied, 212 Conn. 819, 565 A.2d 539 (1989); see General Statutes § 4-166 et seq. “[WJhere a party appeals pursuant to the jurisdictional grant of the UAPA, the agency action is measured by the standards contained within the UAPA. McDermott v. Commissioner of Children & Youth Services, 168 Conn. 435, 441, 363 A.2d 103 (1975). We, therefore, review the merits of the defendants’ claims in the context of the limited scope of judicial review afforded by the UAPA to determinations made by an administrative agency. Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986). With regard to questions of fact, it is neither the function of the trial court nor of this court to retry the case or to substitute its judgment for that of the administrative agency. . . . Judicial review of the conclusions of law reached administratively is also limited. The court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . The present appeal is from the decision of the trial court. We review that decision only to determine whether it was rendered in accordance with the [UAPA].” (Citations omitted; internal quotation marks omitted.) Pet v. Dept. of Health Services, 228 Conn. 651, 660-61, 638 A.2d 6 (1994). Therefore, we must determine whether the trial court improperly determined that the FOIA does not apply to these arbitration proceedings.

Our courts have not decided whether the term “meeting” as found in General Statutes § l-18a (b) applies to these arbitration proceedings. The FOIC decided in a previous decision that the FOIA does not apply to arbitration hearings, which is contrary to its decision in this case. Radford v. Trumbull, supra, Docket No. FIC 79-246. We usually defer to the administrative agency’s decision when interpreting a statute. See Borent v. State, 33 Conn. App. 495, 499, 636 A.2d 392 (1994); Board of Education v. State Board of Education, 30 Conn. App. 720, 726, 622 A.2d 614 (1993), aff’d, 228 Conn. 433, 636 A.2d 378 (1994). Here, the FOIC has interpreted the statute in a manner inconsistent with its previous interpretation of the same statute. See Radford v. Trumbull, supra. Therefore, we must determine, without our usual deference, whether arbitration proceedings held pursuant to General Statutes § 10-153f (c) (4) are subject to the FOIA.

An examination of the language of the statute does not reveal the intent of the legislature as to whether the arbitration proceedings are exempt from the FOIA. It is facially unclear from the statutory language whether arbitration proceedings are subject to the FOIA under General Statutes § 1-21. “Generally, ‘when the language of a statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent.’ American Universal Ins. Co. v. DelGreco, 205 Conn. 178, 193, 530 A.2d 171 (1987). Further, we must interpret a statute according to its plain and ordinary meaning. Mazur v. Blum, 184 Conn. 116, 118, 441 A.2d 65 (1981). ‘When the language of a statute is unclear, we may ascertain the intent of the legislature by looking beyond the language to the statute’s legislative history and the purpose that the statute was intended to serve.’ Weinberg v. ARA Vending Co., 223 Conn. 336, 341, 612 A.2d 1203 (1992).” West Hartford Interfaith Coalition v. Town Council, 228 Conn. 498, 508, 636 A.2d 1342 (1994).

The legislative history clearly demonstrates that the legislature intended the term meeting not to apply to any part of the collective bargaining process. The House debate discloses that the statute should not apply to “sessions concerning collective bargaining.” 18 H.R. Proc., Pt. 8, 1975 Sess., p. 3912. Further, the House debate on an amendment to the proposed bill emphatically stated that “the concept of collective bargaining [was] out of the ‘right to know law.’ ” Id., p. 3896. The Connecticut Civil Liberties Union also filed a policy statement with the Senate that stated that the FOIA should not apply when a legislative, executive or administrative body considers and negotiates employment contracts. 18 S. Proc., Pt. 5,1975 Sess., p. 379. Therefore, on the basis of the legislative history, collective bargaining hearings held pursuant to General Statutes § 10-153Í (c) (4) are not subject to the FOIA.

This interpretation is also in accord with the intent of the last best offer stage of the Teacher Negotiation Act (TNA). General Statutes § 10-153a et seq. The TNA gave teachers binding arbitration in lieu of the right to strike. L. Bingham, “Midterm Bargaining Disputes and Binding Arbitration of Public Sector Employees,” 17 Conn. L. Rev. 365, 375 (1985). At the arbitration sessions, the parties can stipulate to facts and offer evidence. Hartford Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 508, 522 A.2d 264 (1987); L. Bingham, supra, 380. Further, the statute requires that the arbitrator incorporate agreements negotiated prior to the final award. General Statutes § 10-153Í (c) (4); J. Clentano & L. Williamson, Jr., “Primer on Educator Collective Bargaining in Connecticut,” 17 Conn. L. Rev. 307, 340 (1985). Thus, the legislature intended continued negotiations throughout the arbitration hearings and after the hearings are concluded, prior to the issuance of the award.

The trial court correctly found that the FOIC improperly and illegally subjected the arbitration hearings to the FOIA.

The judgment is affirmed.

In this opinion Freedman, J., concurred.

Schaller, J.,

dissenting. This appeal involves the right of the public to attend a hearing conducted by an arbitration panel involving a contract dispute between the Glastonbury education association and the Glastonbury board of education. The arbitration hearing was held when the parties failed to settle their contract dispute during the negotiation and mediation phases of collective bargaining. Because I believe the right of the public to be present at that hearing, as ordered by the freedom of information commission (FOIC), is supported by existing statutory and decisional law, I respectfully dissent.

My conclusions differ from those of the majority with respect to three fundamental issues: (1) the withholding of deference to the FOIC; (2) the interpretation and application of legislative history to the pertinent statutes; and (3) the lack of acknowledgment of the persuasive authority of the Supreme Court decision on an analogous situation in Board of Police Commissioners v. Freedom of Information Commission, 192 Conn. 183, 190, 470 A.2d 1209 (1984).

I

The majority has determined that the deference usually afforded an administrative agency; see Levanti v. Dow Chemical Co., 218 Conn. 9, 15-16, 587 A.2d 1023 (1991); Borent v. State, 33 Conn. App. 495, 499, 636 A.2d 392 (1994); should not be accorded to the FOIC in this case because the FOIC has interpreted General Statutes § l-18a (b) in a manner inconsistent with its previous interpretation of the same statute in Radford v. Trumbull, Docket No. FIC 79-246 (1980). I do not characterize the decision in Radford so as to require the withholding of deference in the present case. The issue before the hearing officer in Radford was a narrow one; namely, whether the specific last best offer submitted by the negotiator for the board of education was exempt from disclosure under General Statutes § 1-19 (b) (9). The FOIC adopted the finding of its hearing officer that the last best offer in question was a “record or statement of strategy or negotiations with respect to collective bargaining” and, therefore, exempt. The hearing officer also found that Public Acts 1979, No. 79-405, “permits the collective bargaining process to continue during the arbitration procedure and after the submission of the last best offers of the parties to the arbitrators.”

The decision in Radford — involving the disclosure of a single document consisting of a particular last best offer — cannot be said to be inconsistent with the FOIC decision in the case before us. This case involves an issue of far greater scope than did Radford. Involved here is the issue of whether the public may be excluded from the entire arbitration hearing. The arbitration statute pertaining to the hearing provides “[a]t the hearing, each party shall have full opportunity to submit all relevant evidence, to introduce relevant documents and written material, and to argue on behalf of its position.” General Statutes § 10-153f (c) (2). The hearing involves the presentation of evidence and argument, in addition to the presentation of last best offers. Because the FOIC’s decision in Radford is not inconsistent with its decision in this case, I believe that the FOIC should be given the usual deference with respect to its decision in this matter.

II

The majority relies on legislative history for assistance in interpreting the “intent of the legislature as to whether the arbitration proceedings are exempt from the FOIA [Freedom of Information Act, General Statutes § 1-15 et seq.]” based on the conclusion that “[i]t is facially unclear from the statutory language whether arbitration proceedings are subject to the FOIA under General Statutes § 1-21.”

Our Supreme Court has stated that it is “mindful when inspecting the statutory text that the intent of the legislature is to be found not in what it meant to say but in what it did say. Federal Aviation Administration v. Administrator, 196 Conn. 546, 549-50, 494 A.2d 564 (1985). When the language of the statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. State v. White, 204 Conn. 410, 421, 528 A.2d 811 (1987).” (Internal quotation marks omitted.) Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 537-38, 582 A.2d 1174 (1990). In my view, the statutory language of § l-18a (b) is plain and unambiguous with respect to the issue with which we are concerned, namely, whether the term meeting applies to all or part of the collective bargaining process. Section l-18a (b) quite clearly excludes, not collective bargaining in general, but “strategy or negotiations with respect to collective bargaining.” (Emphasis added.) On the basis of the statutory language itself, the legislature did not exclude the entire collective bargaining process. Had the legislature wished to do so, it could easily have used the term collective bargaining alone in § l-18a (b).

During the FOIC hearing in this case, in fact, testimony was presented indicating that matters involving strategy or negotiations could arise during the arbitration hearing. The FOIC order adequately provided for the eventuality that strategy and negotiations, in addition to testimony, presentation of evidence, and argument, would occur during the arbitration hearing. Clearly, the parties would be entitled to recess the public hearing for the purpose of conducting negotiations or strategy discussions in private. The FOIC found that the purpose of this particular hearing was to allow the board and the GEA each to present “a ‘last best contract’ offer and to submit evidence and argument on behalf of their positions” and that the “respondent panel’s hearings may and often do lead to further negotiation . . . .”

In my view, therefore, there is no need to look to legislative history to illuminate this issue.1 conclude, therefore, that the statutory language is clear and that only strategy or negotiations with respect to collective bargaining is excluded by General Statutes § l-18a (b). The FOIC order correctly and thoroughly addressed this issue.

Ill

In General Statutes § l-18a (b), the term “meeting” is broadly defined to include “any hearing or other proceeding of a public agency. . . .” The arbitration hearing phase of the collective bargaining process unmistakably falls within this definition of meeting and the narrow exclusion does not apply to the entire arbitration hearing. At the outset, I note that General Statutes § 10-153Í (c) (2) refers to the arbitration procedure as a hearing. That statute provides in pertinent part that “[t]he chairperson of the arbitration panel or the single arbitrator shall set the date, time and place for a hearing to be held in the school district .... At the hearing each party shall have full opportunity to submit all relevant evidence, to introduce relevant documents and written material, and to argue on behalf of its positions. . . . The chairperson of the arbitration panel or the single arbitrator shall preside over such hearing.” General Statutes § 10-153Í (c) (2).

As the FOIC correctly argues, there can be no question that the statutory language of § 10-153Í (c) (2) meshes with the general definition of hearing previously recognized by our Supreme Court as well as this court. Herman v. Division of Special Revenue, 193 Conn. 379, 382-83, 477 A.2d 119 (1984); Leabo v. Leninski, 9 Conn. App. 299, 302, 518 A.2d 667, cert. denied, 202 Conn. 806, 520 A.2d 1286 (1986). The term hearing refers to a “ ‘[proceeding of relative formality .. . generally public, with definite issues of fact and law to be tried. . . .’ ” Herman v. Division of Special Revenue, supra, 382-83; Leabo v. Leninski, supra, 302.

Given the above interpretation of the term hearing, the decision of our Supreme Court in Board of Police Commissioners v. Freedom of Information Commission, supra, 192 Conn. 183, involving an analogous situation, provides persuasive authority to uphold the FOIC decision rendered in this case. In Board of Police Commissioners, our Supreme Court examined the application of General Statutes § 1-21, which provides that “[t]he meetings of all public agencies, except executive sessions as defined in subsection (e) of section l-18a, shall be open to the public.” That case involved the following factual scenario: a police officer was summoned to appear before the board due to an alleged violation of a departmental rule. Board of Police Commissioners v. Freedom of Information Commission, supra, 186. The hearing was open to the public. After the presentation of testimony and arguments, the board left the room to consider the charges against the officer. Id. The officer claimed, however, that during these deliberations, the board considered “such evidence as his personnel file and some comments which had not been presented at the open hearing . . . .” Id., 190.

The court held that General Statutes § 1-21 “must, be construed to mandate that the ‘hearing’ portion of an administrative proceeding, where evidence and arguments are presented, be open to the public.” The court further held that the term “executive session,” in “the context of this case, did not authorize the presentation of additional evidence during the ‘discussion’ of [the officer’s] case by the board.” Id., 190-91. The court remanded the case for further proceedings because the FOIC failed to make any findings with regard to the officer’s assertions that the board had improperly considered evidence that was presented behind closed doors.

The decision in Board of Police Commissioners supports the appropriateness of the FOIC order in this case. The testimony presented at the FOIC hearing reveals that the process of recessing the hearing format for the purpose of discussing strategy is well established and actually occurs. It is not difficult to envision that recessing for the purpose of negotiating can occur, as well.

My position is further supported by the general purpose and construction of the FOIA as set forth by our Supreme Court, which has repeatedly stated that the FOIA “ ‘ “expresses a strong legislative policy in favor of the open conduct of government and free public access to its records.” Wilson v. Freedom of Information Commission, 181 Conn. 324, 328, 435 A.2d 353 [1980].’ Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 550, 436 A.2d 266 (1980); see also Hartford v. Freedom of Information Commission, 201 Conn. 421, 431, 518 A.2d 49 (1986); Board of Police Commissioners v. Freedom of Information Commission, [supra, 192 Conn. 188].” Lieberman v. State Board of Labor Relations, 216 Conn. 253, 266, 579 A.2d 505 (1990). The Supreme Court also has noted that the “construction of the FOIA must be guided by the policy favoring disclosure and exceptions to disclosure must be narrowly construed. Ottochian v. Freedom of Information Commission, 221 Conn. 393, 398, 604 A.2d 351 (1992); Rose v. Freedom of Information Commission, 221 Conn. 217, 233, 602 A.2d 1019 (1992); Lieberman v. State Board of Labor Relations, [supra, 216 Conn. 266]; Board of Police Commissioners v. Freedom of Information Commission, [supra, 188].” Superintendent of Police v. Freedom of Information Commission, 222 Conn. 621, 626, 609 A.2d 998 (1992). The FOIC order provides a correct and realistic approach to the situation presented by this case, while ensuring that the important, overriding policy considerations behind the FOIA are respected.

Because I believe the FOIC properly determined that the arbitration hearing is subject to the FOIA, I would reverse the judgment of the trial court.

Accordingly, I respectfully dissent.

       The defendants in these actions are the freedom of information commission (FOIC); Kathleen Stack, the editor of the Glastonbury Citizen; James Hallas, the publisher of the Glastonbury Citizen; and the Glastonbury Citizen. Only the FOIC appealed. We refer to the FOIC as the defendant.

       The plaintiffs appealed separately to the trial court and the appeals were subsequently consolidated.

       The plaintiffs in these actions are the Glastonbury Education Association; Marilyn Campbell, the acting commissioner of education; and members of the panel conducting arbitration hearings between the Glastonbury education association and the Glastonbury board of education, Peter Blum, Leonard Rovins and Donald Deneen.

       General Statutes § 10-153Í (c) provides in pertinent part that after mediation of a dispute has failed: “If each party has notified the commissioner of the name of the arbitrator it has selected, within five days after such notification, the commissioner shall select a third arbitrator, who shall be an impartial representative of the interests of the public in general. . . . At the hearing each party shall have full opportunity to submit all relevant evidence, to introduce relevant documents and written material, and to argue on behalf of its positions.
      * ** *
      “(4) After hearing all the issues, the arbitrators . . . shall, within twenty days, render a decision in writing, signed by a majority of the arbitrators . . . which states in detail the nature of the decision and the disposition of the issues by the arbitrators .... The written decision shall include a narrative explaining the evaluation by the arbitrators ... of the evidence presented for each item upon which a decision was rendered by the arbitrators . . . and shall state with particularity the basis for the decision as to each disputed issue and the manner in which the factors enumerated in this subdivision were considered in arriving at such decision, including, where applicable, the specific similar groups and conditions of employment presented for comparison and accepted by the arbitrators . . . and the reason for such acceptance. ... At any time prior to the issuance of a decision by the arbitrators . . . the parties may jointly file with the arbitrators . . . any stipulations setting forth contract provisions which both parties agree to accept. . . . The parties shall submit to the arbitrators . . . their respective positions on each individual issue in dispute between them in the form of a last best offer. The arbitrators . . . shall resolve separately each individual disputed issue by accepting the last best offer thereon of either of the parties, and shall incorporate in a decision each such accepted individual last best offer and an explanation of how the total cost of all offers accepted was considered. . . .”

       General Statutes § 1-211 provides in pertinent part: “(b) Any person denied the right to inspect or copy records under section 1-19 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by sections 1-15, l-18a, 1-19 to l-19b, inclusive, l-20a and 1-21 to l-21k, inclusive, may appeal therefrom to the freedom of information commission, by filing a notice of appeal with said commission.
      “(d) Any party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of section 4-183. . . . The commission shall have standing to defend, prosecute or otherwise participate in any appeal of any of its decisions and to take an appeal from any judicial decision overturning or modifying a decision of the commission. . . .”

       General Statutes § 4-183 (a) provides in pertinent part: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. . . .”

       General Statutes § l-18a provides in pertinent part: “(b) ‘Meeting’ means any hearing or other proceeding of a public agency, any convening or assembly of a quorum of a multimember public agency, and any communication by or to a quorum of a multimember public agency, whether in person or by means of electronic equipment, to discuss or act upon a matter over which the public agency has supervision, control, jurisdiction or advisory power. ‘Meeting’ shall not include: Any meeting of a personnel search committee for executive level employment candidates; any chance meeting, or a social meeting neither planned nor intended for the purpose of discussing matters relating to official business; strategy or negotiations with respect to collective bargaining; a caucus of members of a single political party notwithstanding that such members also constitute a quorum of a public agency; an administrative or staff meeting of a single-member public agency; and communication limited to notice of meetings of any public agency or the agendas thereof. . . .” (Emphasis added.)

       General Statutes § 1-21 provides in pertinent part: “(a) The meetings of all public agencies, except executive sessions as defined in subsection (e) of section l-18a, shall be open to the public. . . .”

       General Statutes § 4-183 ® provides in pertinent part: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings.”

       The dissent argues that we are incorrect in asserting that the decision of the FOIC in Radford v. Trumbull, supra, Docket No. FIC 79-246, is inconsistent with its decision here. That assertion is neither logically nor legally correct. In Radford, the FOIC said that the public was not entitled to access the written last best offer. There is no legal difference between a written document and the same information in oral form. Constancy and logic demand that they be treated in the same manner.

       While the dissent argues that we need not look to the legislative history because the statute is facially clear, it then, by its argument, concedes that in fact the statute is not clear by asserting that events that are precluded from public scrutiny do, in fact, come into play in the course of proceedings that are statutorily exempt from the FOIA. Thus, the concession in the dissent that the statute applies to those instances is facially inconsistent with the premise that hearings of this nature are not exempt.

       We agree with the dissent that, but for the existence of the statutory exemption, the hearing would be subject to the provisions of the statute.

       The dissent argues in footnote 1, that the legislative history does not support the conclusion of the court. The dissent points to the legislative history wherein the legislators stated that the FOIA does not apply to collective bargaining. It then leaps, without benefit of citation of authority, to the conclusion that the last best offer procedure is not part of the collective bargaining scheme. This is inconsistent with the provisions of the Teacher Negotiation Act; General Statutes § 10-153a et seq.; is the vehicle by which this appeal arises.

       Looking at the legislative history, however, it is revealing that Representative Martin Burke, in addition to making the remarks quoted by the majority, went on to say: “It was thought that the give-and-take in negotiating sessions of collective bargaining was much too sensitive to require that this be done in public.” (Emphasis added.) 18 H.R. Proc., Pt. 8,1975 Sess., p. 3896. That statement clarifies that the legislative concern was with “the give-and-take in negotiating sessions of collective bargaining”; id.; rather than with the entire process. The conclusion that the legislature excluded only “strategy or negotiations with respect to collective bargaining”; id., p. 3897; from public access, with the hearing itself subject to the FOIA, is neither internally inconsistent nor in conflict with the provisions of the Teacher Negotiation Act.

       At the FOIC hearing, the following colloquy ensued between Kathleen Stack, one of the complainants, and Donald Deneen, a member of the arbitration panel:
      “[Stack]: [B]ut if [the parties] want to compare offers or modify offers, would they do that in discussions before [the arbitration panel] or do they do that someplace else?
      “[Deneen]: Usually the parties individually caucus, not together, and decide whether they want to change position or not.”


author: Schaller, J.

text:
    Thomas Gore et al. v. People’s Savings Bank et al.
    (12203)
    Freedman, Schaller and Spear, Js.
    Argued February 15
    decision released July 12, 1994

      Dana P. Lonergan, for the appellants (plaintiffs).

      Peter J. Dauk, with whom was Lawrence F. Reilly, for the appellees (defendants).
   Schaller, J.

The plaintiffs, Thomas Gore, Wanda Copeland and their minor child, Kendall Copeland, appeal from the judgment of the trial court, rendered after a jury verdict, in favor of the defendants, People’s Savings Bank (People’s) and M.S.B. Real Estate Corporation (M.S.B.), on two counts of negligence. The plaintiffs’ amended complaint contained six counts. The first count, as to People’s, and the third count, as to M.S.B., alleged negligence. The second count, as to People’s, and the fourth count, as to M.S.B., alleged that the defendants had breached the lease agreement. The fifth count, as to People’s, and the sixth count, as to M.S.B., alleged strict liability. The trial court granted the defendants’ motions for directed verdict as to the fifth and sixth counts, from which the plaintiffs took an exception and filed a motion to set aside the verdict. The trial court denied the motion to set aside.

The dispositive issues on appeal are whether the trial court improperly (1) refused to instruct the jury that, if it found the defendants in violation of General Statutes §§ 47a-7, 47a-8 or 47a-54f, the defendants were negligent per se, and (2) directed a verdict in favor of the defendants on the counts alleging strict liability based on a violation of §§ 47a-7, 47a-8 or 47a-54f. We conclude that the trial court improperly directed a verdiet in favor of the defendants on the strict liability-counts, and remand this case for a new trial.

The jury reasonably could have found the following facts. In 1984, Kendall and his parents moved into an apartment in Bridgeport owned by the defendants. Kendall ingested chips of paint in the apartment, and, in 1985, was diagnosed as having a high level of lead in his blood. Upon notification of Kendall’s medical status, Audrey Gains, an official from Bridgeport’s lead poisoning prevention program, conducted tests at the apartment utilizing a lead-paint analyzer. In the living room of the apartment, where chips of paint were found on a window sill, the analyzer indicated a measurement of 8.3 milligrams of lead per square centimeter. Gains subsequently notified the defendants of the results of the tests.

The plaintiffs assert that the trial court improperly directed a verdict as to the counts sounding in strict liability. “ ‘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).’ Merola v. Burns, 21 Conn. App. 633, 636, 575 A.2d 1025 (1990). In reviewing the trial court’s action in directing a verdict for [the defendants], we must consider the evidence in the light most favorable to the plaintiff[s]. Petyan v. Ellis, supra [244]; Merola v. Burns, supra [636].” Berry v. Loiseau, 223 Conn. 786, 819-20, 614 A.2d 414 (1992).

In order to address the plaintiffs’ issues concerning the directed verdict as to the strict liability counts, we must first distinguish the plaintiffs’ claims of negligence per se. The parties intimate that these two causes of action are virtually identical. Both actions are grounded in claims that the defendants violated (1) General Statutes §§ 47a-8 and 47a-7, which together provide that the presence of paint containing lead in excess of certain federally prescribed standards or of certain flaking or peeling paint that constitutes a health hazard renders certain rental premises uninhabitable, and (2) General Statutes § 47a-54f, which proscribes certain flaking or peeling paint that constitutes a health hazard.

“The doctrine of negligence per se serves to superimpose a legislatively prescribed standard of care on the general standard of care. Wendland v. Ridgefield Construction Services, Inc., 184 Conn. 173, 178, 439 A.2d 954 (1981).” Staudinger v. Barrett, 208 Conn. 94, 101, 544 A.2d 164 (1988). “ ‘Where a statute is designed to protect persons against injury, one who has, as a result of its violation, suffered such an injury as the statute was intended to guard against has a good ground of recovery.’ Knybel v. Cramer, 129 Conn. 439, 443, 29 A.2d 576 [1942]; Coughlin v. Peters, 153 Conn. 99, 102, 214 A.2d 127 [1965]. That principle of the law sets forth two conditions which must coexist before statutory negligence can be actionable. First, the plaintiff must be within the class of persons protected by the statute. [Coughlin v. Peters, supra, 101]; Hassett v. Palmer, 126 Conn. 468, 473, 12 A.2d 646 [1940]; Monroe v. Hartford Street Ry. Co., 76 Conn. 201, 207, 56 A. 498 [1903]. Second, the injury must be of the type which the statute was intended to prevent. Toomey v. Danaher, 161 Conn. 204, 212, 286 A.2d 293 [1971]; Longstean v. McCaffrey’s Sons, 95 Conn. 486, 493, 111 A. 788 [1920]. See Prosser, Torts (4th Ed.) § 36; Restatement (Second), 2 Torts §§ 286, 288.” Wright v. Brown, 167 Conn. 464, 468-69, 356 A.2d 176 (1975).

Pursuant to § 288A of the Restatement (Second) of Torts, a defendant can rebut an allegation of negligence per se through proof of an excuse for the violation. Section 288A provides that, unless the statute is construed not to permit an excuse, the violation of such a statute “is excused when (a) the violation is reasonable because of the actor’s incapacity; (b) he neither knows nor should know of the occasion for compliance; (c) he is unable after reasonable diligence or care to comply; (d) he is confronted by an emergency not due to his own misconduct; [and] (e) compliance would involve a greater risk of harm to the actor or to others.” (Emphasis added.) In the case of strict liability, however, the defendant is liable without fault upon proof of the violation of the statute and proximate causation. When an excuse is not permitted under the construction of the applicable statute, strict liability exists.

We note that the distinctions between statutory negligence per se and strict liability have rarely been explored by our courts. In Vingiano v. Frisco, Superior Court, judicial district of New Haven, Docket No. 240142 (June 23,1986), Judge (now Justice) Berdon discussed the differences between negligence per se and strict liability. Vingiano concerned the nature of civil liability pursuant to General Statutes (Rev. to 1983) § 14-80 (a), which required that “service and parking brake systems . . . shall be maintained at all times in good working order.” Judge Berdon commented that the key difference between the imposition of negligence per se and strict liability concerned the fact that § 288A of the Restatement (Second) of Torts provided excuses for violations of statutes under the doctrine of negligence per se, while there is no provision for excuses under the doctrine of strict liability. Judge Berdon noted that our courts have often confused the terms strict liability and negligence per se. Judge Berdon then concluded that the legislature did not intend that excuses be permitted for violation of § 14-80 (a), that § 14-80 (a) imposed strict liability and that the second element of strict liability, namely proximate causation, had been met. Vingiano v. Frisco, supra.

In assessing whether the violation of § 47a-8 or § 47a-54f can provide for civil liability pursuant to a negligence per se theory, we must determine whether the legislature, in adopting the statute, anticipated the plaintiff to be a member of the protected class and intended to prevent the harm that resulted. “To determine the collectively expressed legislative intent, we look first to the language of the statute itself. If that language is plain and unambiguous, we go no further. University of Connecticut v. Freedom, of Information Commission, 217 Conn. 322, 328, 585 A.2d 690 (1991). If, however, the statute is ambiguous, e.g., either opaque or susceptible to alternative conflicting interpretations, we will seek guidance from ‘extrinsic aids,’ e.g., the legislative history. Shelby Mutual Ins. Co. v. Della Ghelfa, 200 Conn. 630, 637-38, 513 A.2d 52 (1986); State v. Ellis, 197 Conn. 436, 445, 497 A.2d 974 (1985).” Sanzone v. Board of Police Commissioners, 219 Conn. 179, 187, 592 A.2d 912 (1991).

Section 47a-8 provides the following two ways in which the paint may render premises uninhabitable: (1) the paint does not conform to certain standards concerning the content of lead set forth in the federal Lead-Based Poisoning Prevention Act; or (2) the paint is cracked, chipped, blistered, flaking, loose or peeling and constitutes a health hazard. The purpose of the portion of the statute prescribing the amount of lead in paint that can be used in a premises pursuant to certain federal statutes is unambiguous. The plaintiff, who was a minor resident of a rental premises, is a member of the class of persons intended to be protected by the statute. The reference to the federal statute designed to curb lead-based paint poisoning clearly renders the alleged injury suffered, lead-based paint poisoning, as the type of injury that the legislature intended to curb. See Torres v. Melody, Superior Court, judicial district of Norwich, Docket No. CY910098765 (February 13, 1992) (concluding that § 47a-8 covered members of the class that included a minor child living at rented premises, and that § 47a-8 addressed injuries incurred through exposure to toxic lead-based paint).

The portion of § 47a-8 that prohibits certain peeling or flaking paint that constitutes a health hazard can be analyzed with § 47a-54f, which likewise prohibits cracked, chipped, blistered, flaking, loose, or peeling paint that constitutes a health hazard. What the legislature intended to encompass in these statutes through its references to “health hazard” is ambiguous. As a result, we must examine the legislative history to determine what type of harm was intended to be prevented. Both statutes arose from Public Acts 1971, No. 71-194, entitled “An Act to Enforce the Elimination of Lead-Based Paint in Housing Accommodations,” and the legislative history reflects that a clear purpose of the act was to end the health problems arising specifically from the presence of lead-based paint. 14 H.R. Proc., Pt. 4,1971 Sess., pp. 1766-69; 14 S. Proc., Pt. 4,1971 Sess., p. 1533.

Upon our conclusion that the initial criteria for the imposition of civil liability pursuant to a negligence per se theory have been met, we must now examine whether the violation of §§ 47a-8 and 47a-54f impose negligence per se or more properly strict liability. The defendants contend that they had to be notified of the lead-based paint defect in order for civil liability to enter. The defendants cite to numerous cases where a landlord’s liability for a defect in the premises has been predicated upon a finding of notice. These cases are distinguishable from the present case in that they did not involve the violation of a statute specific to the defect alleged, but rather, were clearly predicated upon common law negligence principles. In enacting §§ 47a-8 and 47a-54f, the legislature has already acknowledged that the presence of a certain amount of lead in paint or the presence of peeling or flaking paint which constitutes a health hazard is a defect, and that a landlord has a duty to remedy a situation where such a defect exists. In essence, the defendants posit that the alleged violations of §§ 47a-8 and 47a-54f should be excused, because they neither knew nor should have known of the occasion for compliance with the statutes.

We have previously construed § 47a-8 as not requiring notice to the landlord of the lead-based paint hazard in order to trigger a viable defense, pursuant to General Statutes § 47a-4a, to a landlord’s summary process action for nonpayment of rent. Housing Authority v. Olesen, 31 Conn. App. 359, 363-65, 624 A.2d 920 (1993). After examining the statute, reviewing its purpose, and commenting on the significant health hazards posed by lead-based paint, we declined in Olesen “to impose a notice provision on this unambiguous statutory scheme.” Id., 364. Although we have not previously addressed § 47a-54f, we conclude that the same analysis applies.

The interpretation offered by the defendants would not fulfill the purpose of the statutes, namely, to curb the evils resulting from lead-based paint. In many cases, a landlord would not be notified of the danger until a child has already ingested the paint, become ill, and undergone medical tests, the results of which indicate an abnormal presence of lead in the body. There is no indication that the legislature intended that §§ 47a-8 and 47a-54f be construed in a manner that would allow the potential harms caused by the presence of lead-based paint to proliferate. Similarly, there is no suggestion that the legislature intended that the violation of the statutes be excused for lack of notice to the landlord, or for any other reason presented in § 288A of the Restatement (Second) of Torts. Because we construe the statute as meeting the threshold dual criteria for imposition of statutory civil liability pursuant to negligence per se, but lacking any provision for an excuse for the violation, we conclude that the legislature intended that the statute provide for strict liability upon proof of a violation of the statute and proximate causation.

We note that the imposition of strict liability in the area of lead-based paint poisoning is not novel. In Massachusetts, for example, the legislature has provided for the strict liability of the owner of the premises who violates a statute that requires him to remove or cover paint in order to make it inaccessible to children under six years of age. Mass. Gen. L., c. 111 §§ 197, 199 (1985); see Bencosme v. Kokoras, 400 Mass. 40, 748 N.E.2d 748 (1987). If the landlord fails to address the lead-based paint hazard after notification of the danger, he is subject to treble damages. Mass. Gen. L., c. 111 § 199 (1985). Although our statutes concerning lead-based paint are not as specific as that of Massachusetts, our legislature has recognized the health hazard that lead-based paint presents through the enactment of §§ 47a-8 and 47a-54f. Consistent with our previous construction of § 47a-8 in the context of a summary process action as not requiring notice to the landlord of the lead-based paint defect, we conclude that the legislature did not require notice to the landlord prior to the imposition of civil damages pursuant to a theory of strict liability. We also conclude that the legislature, in enacting § 47a-54f, with language virtually identical to that of § 47a-8, likewise, did not require notice to a landlord prior to the imposition of civil damages pursuant to a theory of strict liability.

Having determined that §§ 47a-7 and 47a-8, when read together, and § 47a-54f provide for civil damages pursuant to a claim of strict liability, we must now determine whether the trial court properly directed verdicts in favor of the defendants on the counts sounding in strict liability. The question is whether, on the facts presented, the jury could have legally and logically reached a different conclusion, namely that the defendants were strictly liable. We must determine whether the jury reasonably and logically could have found a statutory violation, proximate causation and damages.

“ ‘[I]f the evidence presented is in conflict and more than one conclusion is reasonably open to the jury . . . and if the jury may reasonably draw different inferences from the evidence, or if the jury could be called to pass upon the credibility of witnesses or their testimony, a verdict should not be directed by the court.’ Johnson v. Flammia, 169 Conn. 491, 496, 363 A.2d 1048 (1975).” Marron & Sipe Building & Contracting Corp. v. Flor, 22 Conn. App. 689, 699, 580 A.2d 508 (1990). This case was vigorously contested at the trial court and involved the presentation of numerous witnesses and conflicting evidence with regard to the violation of the relevant statutes, proximate causation and damages. We conclude, on the basis of the evidence presented, that the jury reasonably could have arrived at more than one verdict, and, as a result, the verdict should not have been directed.

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

In this opinion the other judges concurred.

       Gore and Wanda Copeland brought this case on behalf of their son as next friends, and on their own behalfs as tenants of the named defendant and for medical expenditures.

       The trial court refused to charge the jury with regard to negligence per se as to General Statutes §§ 47a-7, 47a-8, 47a-54 and 47a-55, and § 19-13-B1 (i) of the Regulations of Connecticut State Agencies. The court, in instructing the jury on simple negligence, did note that a violation of § 47a-8 renders an apartment uninhabitable. The court also instructed, however, that, in order to impose tort liability, the landlord had to have actual or constructive notice of such defect.
      We note that the plaintiffs did not allege a violation of § 47a-55 in their amended complaint, nor in their motion to set aside the verdict. We do not review the claim that the trial court improperly refused to instruct on this statute, when the claim is raised for the first time on appeal. Rydingsword v. Liberty Mutual Ins. Co., 224 Conn. 8, 9-10 n.1, 615 A.2d 1032 (1992); Cahill v. Board of Education, 187 Conn. 94, 99-100, 444 A.2d 907 (1982). The plaintiffs did not appeal from the portion of the judgment concerning the second and fourth counts.

       General Statutes § 47a-8 provides: “The presence of paint which does not conform to federal standards as required in accordance with the Lead-Based Paint Poisoning Prevention Act, Chapter 63 of the Social Security Act, as amended, or of cracked, chipped, blistered, flaking, loose or peeling paint which constitutes a health hazard on accessible surfaces in any dwelling unit, tenement or any real property intended for human habitation shall be construed to render such dwelling unit, tenement or real property unfit for human habitation and shall constitute a noncompliance with subdivision (2) of subsection (a) of section 47a-7.”
      General Statutes § 47a-7 (a) provides in part: “A landlord shall . . . (2) make all repairs and do whatever is necessary to put and keep the premises in a fit and habitable condition, except where the premises are intentionally rendered unfit or uninhabitable by the tenant, a member of his family or other person on the premises with his consent, in which case such duty shall be the responsibility of the tenant . . . .”
      General Statutes § 47a-54f (b) provides: “Paint on the accessible surfaces of a tenement house shall not be cracked, chipped, blistered, flaking, loose, or peeling so as to constitute a health hazard.”

       The plaintiffs also raise the following issues on appeal: whether the trial court improperly (1) instructed the jury that the plaintiffs had the burden of proof with respect to actual or constructive notice of the violation of the statute concerning lead paint, (2) instructed the jury that the defendants were entitled to a reasonable time after notice to make the necessary repairs pursuant to General Statutes § 47a-7 (2), and (3) refused to allow the plaintiffs to question a witness regarding the presence of lead-based paint in other apartments owned by the defendants. Because we conclude that the trial court improperly directed a verdict with regard to the counts on strict liability and remand this case to the trial court, we need not address these other claims, as they are not likely to occur upon retrial.
      The plaintiffs also claim that the trial court improperly refused to instruct the jury on the theory of nuisance. We note that the issue of public nuisance was thrust into the complaint only to the extent that proof of a public nuisance pursuant to § 19-13-B1 (i) of the Regulations of Connecticut State Agencies could constitute negligence per se or strict liability. We, therefore, address the issue of the trial court’s failure to instruct on public nuisance in the context of the issues of negligence per se and strict liability. See footnote 8.

       Our discussion of General Statutes § 47a-7 is limited to the specific interaction between General Statutes §§ 47a-8 and 47a-7. Our subsequent discussion, therefore, will focus on § 47a-8. Proof of a violation of § 47a-8 is a per se violation of § 47a-7. See footnote 3.

       Although courts may continue to refer to the imposition of liability upon the violation of a statute where no excuse is permitted as negligence per se, “[s]uch a statute falls properly under the heading] of strict liability . . . .” W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 36, p. 227.

       Judge Berdon distinguished the terms when he stated that “[i]t is clear that the defendant violated [General Statutes] § 14-80 (a) by operating a vehicle with defective brakes and as a result he was negligent per se (or more properly designated as having violated the first of two elements necessary to impose strict tort liability).” Vingiano v. Frisco, supra.

       We also note that in the count of their complaint alleging negligence per se and strict liability, the plaintiffs cited to § 19-13-B1 (i) of the Regulations of Connecticut State Agencies. Section 19-13-B1 provides in pertinent part: “The following conditions are specifically declared to constitute public nuisances . . . (i) Buildings or any part thereof which are in a dilapidated or filthy condition which may endanger the life or health of persons living in the vicinity.” (Emphasis added.) We conclude that the regulation, in discussing dilapidated and filthy buildings, does not contemplate the specific harm of lead-based paint poisoning to a minor child. As a result, a violation of this statute could not constitute negligence per se in this context.

       We note, however, the existence of Iudica v. DeNezzo, 115 Conn. 233, 237-38, 161 A. 81 (1932) (proof of negligence based on violation of statute, now General Statutes § 47a-54d [b]), that requires a landlord to provide lighting in certain areas demands proof of notice of landlord of lack of lighting.

       General Statutes § 47a-4a provides: “A rental agreement shall not permit the receipt of rent for any period during which the landlord has failed to comply with subsection (a) of section 47a-7.”

       In the Superior Court case of Hardy v. Griffin, 41 Conn. Sup. 283, 569 A.2d 49 (1989), the court rendered judgment in favor of the minor plaintiff under a theory of strict liability brought pursuant to §§ 47a-7 and 47a-8 and a local ordinance. The court determined that the defendants were liable on the basis of their breach of the local ordinance. We note, however, that the trial court did not address the issue of strict liability based on a violation of §§ 47a-7 and 47a-8 from the viewpoint that we have discussed previously, and our analysis is independent of that set forth in Hardy.