author: Bieluch, J.

text:
    John E. Peck et al. v. Michael D. McClurg et al.
    (5737)
    Bieluch, Stoughton and Norcott, Js.

      Argued April 21
    decision released October 4, 1988

      Andrew Brand, with whom, on the brief, was Lloyd Langhammer, for the appellant-appellee (defendant).

      John C. Archambault, for the appellees-appellants (plaintiffs).
   Bieluch, J.

This action for damages stemmed from the breach of a conditional sales agreement for the purchase of the capital stock of a restaurant corporation. The plaintiffs, John E. Peck, Eugene R. Peck and David Costner, the principals of the corporation which had owned the restaurant, commenced this action in three counts to recover from the defendant, individually and in his capacity as administrator of the estates of his mother and stepfather, (1) the sum of $70,000 due under the agreement, (2) funds due pursuant to an assignment of the proceeds of the wrongful death claims of the estates of his mother and stepfather, and (3) obligations due under an indemnification agreement and a promissory note executed by the defendant. The defendant denied that he was obligated to pay the sums claimed and, in two special defenses, he alleged that, by exercising their right to terminate the agreement and regain control of the operation of the restaurant, the plaintiffs (1) had rescinded the contract, and (2) had elected the exclusive remedy they wished to pursue. After a trial to the court, judgment was rendered for the plaintiffs in the amount of $71,548.15. The defendant has appealed and the plaintiffs have cross appealed. We find error on the appeal, and no error on the cross appeal.

The following facts are necessary to an understanding of the issues on appeal. The defendant Michael D. McClurg was employed as a cook at “Gentlemen Jim’s Restaurant” in April, 1983. The restaurant was the only asset of Three Star Corporation, with its capital stock owned by the plaintiffs, the principals of the corporation. The plaintiffs had purchased the stock from the restaurant’s previous owner, Mary Raptis, who held the stock as security for a note executed by the plaintiffs in the amount of $145,000. The sum of $132,000 was then due and owing on the note.

The defendant discussed with the plaintiff Eugene R. Peck the proposed purchase of the restaurant and, during June and July, 1983, a proposal for the defendant to purchase the capital stock of the corporation for $277,000, with a credit of $30,000 to be deducted against accounts payable was considered. The defendant, on June 12, 1983, gave the plaintiffs $15,000 as a deposit. This proposed agreement was not consummated. Further discussions took place, however, and, on September 2, 1983, an agreement was signed by the parties regarding the conditional sale of the stock by the plaintiffs to the defendant. The purchase price was $277,000 payable by the defendant with $15,000 as a deposit which was previously paid, $70,000 payable within thirty days, a $60,000 note payable in one year, assumption of the note in the amount of $132,000 payable to Mary Raptis, and adjustments of $4800 to be paid by the defendant to cover a utility security deposit, prepaid insurance, and the liquor permit fee. The defendant signed a promissory note to the plaintiffs for $64,800, an assignment of his interest as beneficiary in wrongful death actions involving his mother and stepfather in the amount of $70,000, and an “Indemnification Agreement” to “indemnify and hold harmless” the plaintiffs on the outstanding note to Mary Raptis assumed as part of the purchase price. At the time of the execution of these documents, the defendant relied upon a bank balance of the corporation in the amount of $7500, and assumed it would cover the outstanding obligations of the business.- All parties considered this to be a “turnkey” operation with no adjustment for stock, inventory, cash on hand or outstanding debts.

Shortly after the defendant assumed operation of the restaurant, he became aware of various outstanding bills and discovered unpaid checks issued by the corporation to pay its debts. The defendant soon encountered financial difficulties because of insufficient funds in the corporate checking account to pay outstanding obligations. As a result of the demands of creditors, the defendant failed to pay the plaintiffs any further sums as provided in the documents executed on September 2, 1983. The defendant also failed to pay over the funds obtained from the estates of his mother and stepfather as a result of a settlement made on September 16, 1983. On November 10, 1983, the defendant advised the plaintiffs that he wanted to be released from his obligations under the agreements. On November 20, 1983, the defendant relinquished control of the restaurant permanently.

By December 1, 1983, the plaintiffs had resumed control and operation of the restaurant. They were required to pay for various obligations incurred during the period the defendant operated the restaurant in the amount of $18,415.81. Additionally, Raptis brought suit against the plaintiffs on the note she held as collateral, and the plaintiffs were compelled to pay her $66,357.34 in settlement of their obligations to her.

The defendant’s breach of the conditional sales contract for the purchase of the plaintiffs’ stock was not disputed. After finding no merit to either of the defendant’s two special defenses, the only question for the trial court to resolve was the amount of damages the plaintiffs were entitled to recover as a result of the breach.

The plaintiffs sought to recover on all of the obligations executed by the defendant, plus reimbursement for obligations incurred by the defendant that they paid in the amount of $18,415.81. The total sum claimed by the plaintiffs was $233,758.13, in addition to the $15,000 deposit, for a total sum of $248,758.13.

The court found that such a recovery by the plaintiffs, after they regained control and possession of the business approximately three months after the sale, would result in unjust enrichment. The court held that “[t]he plaintiffs are entitled to the damages they sustained as of the time of the breach, and they would not be entitled to recover in full on the notes or other obligations executed by the defendant.”

The court concluded that the evidence established that the plaintiffs could recover the sum of $18,415.81 for the obligations they had paid which were incurred by the defendant during his operation of the restaurant, and could recover the sum of $1775 for the costs of the various adjustments from which the defendant had also benefitted during that period. The court also held that the defendant was obligated to the plaintiffs in the amount of $66,357.34 under the indemnity agreement for payment of the assumed note held by Raptis. From the total of $86,548.15, the previously paid deposit of $15,000 was deducted and judgment was thereafter rendered in the amount of $71,548.15. This appeal and cross appeal followed.

The defendant first claims on appeal that the plaintiffs were not entitled to judgment because, by regaining control and operation of the restaurant, they elected their remedy and foreclosed their right to bring an action for damages. We find no merit in this claim, and agree with the trial court’s conclusion that the plaintiffs, following the defendant’s breach, were placed in the position of having to reacquire the operation of the business to mitigate their damages. The defendant argues that the management agreement contained in the contract provided this choice of remedies for the plaintiffs. A contract, however, should not be construed to excuse a party from a duty to use reasonable care to minimize its damages. Newington v. General Sanitation Service Co., 196 Conn. 81, 85, 491 A.2d 363 (1985).

The dispositive issue on this appeal, and also raised on the plaintiffs’ cross appeal, is the trial court’s fundamental error in its assessment of damages. The measure of damages for breach of a sales contract is the difference between the contract price at the time of sale and the value of the property at the time of the breach of the contract. Loda v. H. K. Sargeant & Associates, Inc., 188 Conn. 69, 82, 448 A.2d 812 (1982). These damages represent the loss of the bargain, and the injured party should be placed in the position he would have been in had the contract been fully performed. Id.; Spera v. Audiotape Corporation, 1 Conn. App. 629, 633, 474 A.2d 481 (1984). Damages are to be calculated as of the date of the breach. Spera v. Audiotape Corporation, supra.

The proper measure of damages in the case before us would be the difference between the purchase price of the restaurant’s stock under the conditional sales contract, $277,000, less the value of that stock at the time of the defendant’s undisputed breach of that contract approximately three months later. The record before us is devoid of any indication of the value of the restaurant’s stock at the time of the defendant’s breach. The trial court must, therefore, rehear this matter solely on the issue of the assessment of damages.

To the extent that they may recur at the rehearing, we must address the plaintiffs' claim as to the proper measure of their recovery, and the trial court’s finding as to the plaintiffs’ recovery under the indemnification agreement signed by the defendant at the time of sale of the restaurant's stock. The plaintiffs claim that they are entitled to recover in full on the conditional sales contract, and that they are entitled to reimbursement for those obligations incurred by the defendant which they paid after regaining control of the restaurant. In other words, the plaintiffs seek full payment for the stock of the restaurant they now own and control, plus reimbursement for costs. They are not entitled to such an unconscionable return on the conditional sales agreement they had with the defendant. Not only would this result violate the proper formula for assessing damages in such a case, but the plaintiffs would be unjustly enriched at the defendant’s expense. See National CSS, Inc. v. Stamford, 195 Conn. 587, 597, 489 A.2d 1034 (1985). We cannot, by law or on the facts before us, sanction such a grossly unfair result.

Neither can we support the trial court’s finding with respect to the defendant’s obligation under the indemnity agreement. As part of the purchase price of the stock, the defendant assumed payment of the outstanding note to Raptis, secured by the stock as collateral, and signed the indemnity agreement to guarantee payment of the plaintiffs’ collateral obligation of $132,000. Raptis, the previous owner of the restaurant, held its capital stock as collateral for payment of her note. The evidence established that the plaintiffs, as a result of the settlement of the suit brought by Raptis, were required to pay her the sum of $66,357.34. The trial court found that the defendant was obligated to reimburse the plaintiffs for that sum in accordance with the terms of the agreement to pay the collateral note to Raptis securing the underlying obligation of the plaintiffs on that note. We disagree.

An indemnity agreement, like any other contract, must be construed to effectuate the intent of the contracting parties, and, in ascertaining that intent, it is appropriate to look to the language of the agreement interpreted in light of the situation of the parties and the circumstances connected with the transaction. Burr v. Lichtenheim, 190 Conn. 351, 358, 460 A.2d 1290 (1983); Leonard Concrete Pipe Co. v. C. W. Blakeslee & Sons, Inc., 178 Conn. 594, 598, 424 A.2d 277 (1979); Powel v. Burke, 178 Conn. 384, 387, 423 A.2d 97 (1979). In accordance with these principles, an indemnity agreement will be construed to cover such losses as appear to have been intended by the parties. Leonard Concrete Pipe Co. v. C. W. Blakeslee & Sons, Inc., supra, 599.

The defendant signed the indemnity agreement at the time he agreed to assume a debt of the plaintiffs as part of the purchase price of the restaurant’s stock. The execution of this agreement was a part of the conditional sales agreement for the purchase of the restaurant’s capital stock. The defendant, as the new owner of the restaurant, assumed responsibility for payment of this debt and agreed to indemnify and hold the plaintiffs harmless, as the sellers of the restaurant’s capital stock, from any claim or loss on the debt assumed as part of the purchase price. The loss from which the plaintiffs would be protected was clearly set forth in the agreement: “[A]ny claims, actions, suits, judgments and liabilities pursuant to [the] promissory note from [the plaintiffs] to Mary Raptis . . . [and] I understand, agree and assume all obligations pursuant to said note and promise to pay said note in accordance with its terms and tenure.”

Following the defendant’s breach, the plaintiffs regained possession of the restaurant and conditional ownership of its capital stock, held as collateral by Raptis for payment of her note. When Raptis brought suit for payment of the outstanding indebtedness, the plaintiffs were obligated to make payment as the principal obligors on the note which the defendant had merely assumed to pay as part of the purchase price. They were not, however, entitled to be “indemnified” by the defendant as a result of making this payment. “[I]ndemnity involves a claim for reimbursement in full from one on whom a primary liability is claimed to rest . . . .” (Emphasis added.) Kaplan v. Merberg Wrecking Corporation, 152 Conn. 405, 412, 207 A.2d 732 (1965). After the defendant breached the conditional sales agreement and the plaintiffs regained control of the business, the defendant was not liable as “indemnitor” on the note. In addition, the plaintiffs did not prove that they suffered any loss by paying on the suit brought by Raptis. As owners once again of the restaurant, the plaintiffs completed their payment for its acquisition by paying the balance due on the purchase note to Raptis for their reacquired capital stock, which had been held by Raptis as collateral for payment of the note. They proved no loss by resuming payment on the note, which loss is an essential element in any indemnity claim. The plaintiffs are not entitled to be indemnified by the defendant as a result of the suit for payment of their note.

There is error on the appeal, the judgment is set aside and the case is remanded for further proceedings on the issue of damages. There is no error on the cross appeal.

In this opinion the other judges concurred.


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Donald Ray Jr. v. Raymond P. Schneider et al.
    (6133)
    Dupont, C. J., Borden and Spallone, Js. .
    Argued June 7
    decision released October 4, 1988

      Paul B. Groobert, with whom was Van Starkweather, for the appellant (plaintiff).

      David S. Williams, for the appellees (named defendant et al.).

      Raymond F. Parlato filed a brief for the appellee (defendant Cheryl Stanton).
   Dupont, C. J.

The plaintiff appeals from the judgments rendered in this personal injury action subsequent to the granting by the trial court, Kelly, J., of the motion made by the defendants Raymond P. Schneider and Robert F. Welsh to strike the first count of the plaintiffs amended complaint, and the granting by the trial court, Byrne, J., of the motion made by the defendant Cheryl Stanton, doing business as Competitive Contracting Company (CCC), for summary judgment on the second count of the plaintiffs amended complaint. The plaintiff claims that the trial courts erred (1) in concluding that he failed to state a cause of action for vicarious liability and for direct liability in negligence against the defendants Schneider and Welsh, and (2) in concluding that his tort claim against the defendant CCC, his employer, was barred under the exclusivity of remedy provisions of the Workers’ Compensation Act, General Statutes § 31-275 et seq. We find no error.

The following facts are pertinent to the issues on appeal. The defendants Schneider and Welsh hired the defendant CCC, an independent contractor, to excavate a trench and to install sewer, water and gas utility pipelines for several buildings which were being added to an existing shopping center. Schneider and Welsh had proprietary interests in the shopping center either as owners, lessees or developers. The plaintiff was an employee of CCC. On October 5, 1982, the plaintiff was working in a trench excavated by CCC when the wall of the trench caved in on him, inflicting severe bodily injuries.

In his amended complaint, the plaintiff alleges that his injuries were due to the incompetence of his employer in excavating the trench. Specifically, he claims that the collapse of the trench occurred because (1) the trench, which was 280 feet long and more than five feet deep, was excavated in subsoil consisting of loose and unstable soil, rocks and other loosely compacted fill materials, (2) the earthen walls of the trench were not shored or braced, (3) the trench walls did not have a sufficient angle of repose as required by various regulations, ordinances and building codes, (4) excavated trench materials and fill were left in too close a proximity to the open trench, and (5) the trench walls were subject to vibrations generated by the construction equipment being operated in the nearby area and by vehicular traffic at the shopping center, including large delivery trucks.

The trial court struck the first count of the amended complaint against Schneider and Welsh, concluding that as a matter of law (1) they were not vicariously liable to the contractor’s employee for the defendant contractor’s alleged failure to take the necessary safety precautions where work is inherently dangerous or where they had a nondelegable duty to provide a safe work place, and (2) to the extent that the complaint alleged that they failed to hire the independent contractor with reasonable care, they were not liable to the contractor’s injured employee for negligence in failing to exercise reasonable care in the selection of an independent contractor.

I

Judgment in Favor of Schneider and Welsh

A

VICARIOUS LIABILITY FOR NEGLIGENCE OF INDEPENDENT CONTRACTOR

The plaintiff argues that the trial court erred in striking the first count of the amended complaint for failure to state a cause of action in negligence on the basis of vicarious liability. The plaintiff makes essentially two claims. He argues that Schneider and Welsh are liable for the contractor’s alleged failure to take the necessary safety precautions because (1) the work performed was inherently dangerous, and (2) because a nondelegable duty by the defendant to provide a safe work place arose out of a grant of authority, which in this case was the sewer permit from the town of Killingly. We conclude that although Schneider and Welsh might be vicariously liable to members of the general public under these circumstances for harm caused by the negligence of an independent contractor employed by them, they cannot, as a matter of law, be held vicarously liable to an employee of the negligent independent contractor.

Ordinarily, an employer of an independent contractor, absent an act of negligence on his own part, is not liable to others for the negligent acts of the contractor. Douglass v. Peck & Lines Co., 89 Conn. 622, 627, 95 A. 22 (1915). There are, however, several exceptions to the nonliability rule. For example, where the employer retains control of the premises or supervises the work of the contractor, or where the work to be performed by the contractor is inherently dangerous, or where the employer has a nondelegable duty to take safety precautions imposed by statute or regulation, the employer may be vicariously liable to others for the negligent acts of the independent contractor. See id.; 41 Am. Jur. 2d, Independent Contractors § 41; 2 Restatement (Second), Torts §§ 413, 416, 424, 427.

There is no question that these exceptions apply to allow third persons, such as innocent bystanders, to maintain a negligence action against the employer. The more difficult question, however, is whether the employees of the independent contractor also fall within those class of persons protected by the exceptions to the nonliability rule. The Connecticut appellate courts have not decided this issue. Assuming that the work performed by the independent contractor in this case was inherently dangerous and agreeing that an employer may not contract away his liability to the general public for harm caused in the performance of that activity, we conclude that such vicarious liability does not extend to the employees of the independent contractor. See, e.g., Scofi v. McKeon Construction Co., 666 F.2d 170 (5th Cir. 1982); Evans v. Transportacion Maritime Mexicana, 639 F.2d 848 (2d Cir. 1981); Vagle v. Pickands Mather & Co., 611 F.2d 1212 (8th Cir. 1979), cert. denied, 444 U.S. 1033, 100 S. Ct. 704, 62 L. Ed. 2d 669 (1980) (applying Minnesota law); Bramer v. United States, 595 F.2d 1141 (9th Cir. 1979); Chavis v. Finnlines Ltd., O/Y, 576 F.2d 1072 (4th Cir. 1978); Jones v. United States, 399 F.2d 936 (2d Cir. 1968); Lipka v. United States, 369 F.2d 288 (2d Cir. 1966), cert. denied, 387 U.S. 935, 87 S. Ct. 2061, 18 L. Ed. 2d 997 (1967); Galbraith v. United States, 296 F.2d 631 (2d Cir. 1961); Wallach v. United States, 291 F.2d 69 (2d Cir.), cert. denied, 368 U.S. 935, 82 S. Ct. 373, 7 L. Ed. 2d 197 (1961); Hurst v. Gulf Oil Corporation, 251 F.2d 836 (5th Cir. 1958); Ackerman v. Gulf Oil Corporation, 555 F. Sup. 93 (D.N.D. 1982) (applying North Dakota law); Sloane v. Atlantic Richfield Co., 552 P.2d 157 (Alaska 1976); Welker v. Kennecott Copper Co., 1 Ariz. App. 395, 403 P.2d 330 (1965); Jackson v. Petit Jean Electric Corporation, 270 Ark. 506, 606 S.W.2d 66 (1980); Florida Power & Light Co. v. Price, 170 So. 2d 293 (Fla. 1964); Pearson v. Harris, 449 So. 2d 339 (Fla. App. 1984); Peone v. Regulus Stud Mills, Inc., 113 Idaho 374, 744 P.2d 102 (1987); Texas Eastern Transmission Corporation v. Seymour National Bank, 451 N.E.2d 698 (Ind. App. 1983); Johns v. New York Blower Co., 442 N.E.2d 382 (Ind. App. 1982); King v. Shelby Rural Electric Co-Op Corporation, 502 S.W.2d 659 (Ky.), cert. denied, 417 U.S. 932, 94 S. Ct. 2644, 41 L. Ed. 2d 235 (1974); Vertentes v. Barletta Co., 392 Mass. 165, 466 N.E.2d 500 (1984); Sierra Pacific Power Co. v. Rinehart, 99 Nev. 557, 665 P.2d 270 (1983); Cooper v. Metropolitan Government, 628 S.W.2d 30 (Tenn. App. 1981); Humphreys v. Texas Power & Light Co., 427 S.W.2d 324 (Tex. App. 1968); Humble Oil & Refining Co. v. Bell, 180 S.W.2d 970 (Tex. App. 1944); Epperly v. Seattle, 65 Wash. 2d 777, 399 P.2d 591 (1965); Jones v. Chevron U.S.A., Inc., 718 P.2d 890 (Wyo. 1986); see also annot., 34 A.L.R.4th 914, 934-48, and cases cited therein; note, “Liability to Employees of Independent Contractors Engaged in Inherently Dangerous Work: A Workable Workers’ Compensation Proposal,” 48 Fordham L. Rev. 1165 (1980); contra Rooney v. United States, 634 F.2d 1238 (9th Cir. 1980) (applying California law); Van Arsdale v. Hollinger, 68 Cal. 2d 245, 437 P.2d 508, 66 Cal. Rptr. 20 (1968).

The issue before us necessitates consideration of whether an employee of an independent contractor has a status significantly distinguishable from a member of the general public with respect to the employer’s duty to compensate for injury caused by the negligence of the independent contractor. Vertentes v. Barletta Co., supra, 505-506 (Abrams, J., concurring). We begin our analysis by acknowledging that the imposition of vicarious liability on the employer of an independent contractor when that contractor is negligent in performing inherently dangerous work resulting in harm to a member of the general public “is grounded in a recognition that the possibility of harm to others is so great when the work activity is inherently dangerous that the law tolerates it only on terms insuring the public against injury.” Jackson v. Petit Jean Electric Corporation, supra, 510. Accordingly, an employer who benefits from the performance of inherently dangerous work may not be shielded from the responsibility to provide safety measures and precautions designed to insure against injury by delegating the performance of the work to an independent contractor. Vicarious liability in such a case is intended “to protect those who have no direct involvement with the hazardous activity, are only incidentally exposed to its risks and have no direct means of insuring themselves against the loss.” Id.

Employees of an independent contractor stand on a different footing with respect to such injury than does the general public. An employee of an independent contractor who performs inherently dangerous work has specifically contracted to perform such work knowing the risks involved and receives generally higher compensation because of such risks. Poirier v. Plymouth, 374 Mass. 206, 227, 372 N.E.2d 212 (1978). Furthermore, employees injured on the job, in contrast to passersby or other members of the general public who “are relegated to the hazards of litigation”; Vertentes v. Barletta Co., supra, 506 (Abrams, J., concurring); receive recovery as a matter of due course under a statutory/administrative scheme. Hence, the concern underlying the vicarious liability doctrine, namely, that an individual who is injured by the negligence of an independent contractor performing inherently dangerous work might not receive just compensation for his injury, is not applicable when the injured person is the employee of the independent contractor. These differences support the distinction made by the courts between members of the general public and employees of the independent contractor in the context of vicarious liability of the contractor’s employer.

Aside from this distinction, there are other compelling reasons for our decision to deny liability. With relatively few exceptions, an employee’s recovery for work-related injuries is governed by our comprehensive statutory workers’ compensation scheme. The insurance from which compensation for an injury is to be paid is carried by the contractor. It is to be expected that the cost of workers’ compensation insurance will be included by the contractor in his contract price for undertaking to perform the inherently dangerous work and, therefore, will ultimately be financed by the employer who hires the independent contractor. King v. Shelby Rural Electric Co-Op Corporation, supra, 662. The employer thus already furnishes funds, at least in part, to pay the insurance premiums of the independent contractor for workers’ compensation. To hold the employer of the contractor liable vicariously to the employee of the contractor would effectively make the employer pay twice for a contractor’s employee’s work-related injury.

Finally, and most importantly, the imposition of liability would subject the employer of an independent contractor to greater liability than he would have had if he had used his own employees on the job. Vagle v. Pickands Mather & Co., supra, 1219; King v. Shelby Rural Electric Co-Op Corporation, supra, 662-63. As a general rule, an employee’s recovery is limited to workers’ compensation. In this case, for example, if the plaintiff had been an employee of Schneider and Welsh, doing exactly the same work, he would have been prevented by our workers’ compensation law from suing them in tort. Employees of an employer should not be limited to workers’ compensation benefits while permitting employees of an independent contractor to recover not only workers’ compensation benefits, but also to recover damages in tort from an employer of an independent contractor. If such were the case, there would be an indefensible status distinction between employees of an independent contractor and employees working directly for the owner of the premises, the real estate developers, the lessees of the premises or the general contractor. “To the extent that work[er]’s compensation is the preferred remedy for occupational injuries, it does appear anomalous and fortuitous to allow an employee to recover in tort from a third party owner when the accident arises out of and in the course of employment. In other words, a third party owner should not be exposed to greater liability by employing an independent contractor.” Peone v. Regulus Stud Mills, Inc., supra, 378.

There are other reasons to support our conclusion denying liability. First, a fundamental principle of our tort law is that ordinarily an individual should be held liable for compensating harm only when he has caused that harm through his own fault. The principle of liability for individualized fault is the norm, whereas vicarious liability “is regarded as an exceptional solution.” Nowak v. Nowak, 175 Conn. 112, 126, 394 A.2d 716 (1978).

Second, recovery in tort on a suit based on vicarious liability for injuries for which an employee has already been compensated pursuant to his workers’ compensation benefits usually would contravene the legislative scheme of the Workers’ Compensation Act.

Third, the employee of the contractor “has greater knowledge of and control over the dangers to which he is exposed” than does the employer of the contractor. Ackerman v. Gulf Oil Corporation, supra, 96. “Generally, the employee works with those dangers daily, and from such experience usually has a clearer idea of the dangers to which he is exposed and how he might alleviate such dangers.” Id.

Fourth, public policy encourages real estate developers and other employers to hire independent contractors where work is inherently dangerous because of their expertise, skill and ability to understand the dangers and to best take safety precautions against them. Imposition of vicarious liability upon the employer, which would expose him to more liability than if he undertook the work himself, can only discourage an employer from seeking qualified contractors to perform dangerous work.

We conclude that an employer of an independent contractor may not be vicariously liable to the contractor’s employees for an injury caused in the performance of inherently dangerous work on account of the contractor’s failure to take the necessary safety precautions, or because the employer had a nondelegable duty to provide a safe work place. Accordingly, the trial court did not err in striking the first count of the plaintiff’s amended complaint for failure to state a cause of action for vicarious liability in negligence.

B

DIRECT LIABILITY FOR PERSONAL NEGLIGENCE

The plaintiff argues that the trial court erred in striking the first count of the amended complaint for failure to state a cause of action in negligence. The plaintiff argues that the failure of the defendants to exercise reasonable care in the selection of an independent contractor, which negligence was the proximate cause of injury, is a cognizable cause of action as to him, the contractor’s employee.

In his amended complaint, the plaintiff alleges, among other allegations: “7. The defendant, Cheryl Stanton, at all times was the owner of a business entitled Competitive Contracting Company. 8. On or about September 1, 1982, the defendants . . . engaged the defendant, Cheryl Stanton, d/b/a, to install sewer, water and gas utility pipe lines and the excavation work necessary therefor .... 19. [The plaintiff’s injury] was due to the negligence of the defendants ... in that: a. They caused, allowed and/or permitted the defendant, Cheryl Stanton, d/b/a, to perform excavation work of an inherently dangerous nature when they knew, or in the exercise of reasonable care should have known (i) that she was incompetent to perform said work (ii) that she did not possess sufficient knowledge; she did not possess a drain layer’s license as required by Section IX of the Killingly Sewer Ordinance, she did not possess a crane operator’s license as required by Section IX (d) (3) (4) (5) of the Killingly Sewer Ordinance, skill, experience, equipment and the personnel necessary to perform said work in a competent or safe manner . . . .”

It has not been decided by the appellate courts of this state whether a duty is owed by the owner of premises or by the developers of real estate to an employee of an independent contractor to hire that independent contractor with reasonable care. See Douglass v. Peck & Lines Co., 89 Conn. 622, 627, 95 A. 22 (1915) (recognizing rule that employer may be liable to others for negligently employing an incompetent or untrustworthy independent contractor). The parties in this case urge this court to decide that question under § 411 of the Restatement (Second) of Torts, which provides that “[a]n employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor (a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or (b) to perform any duty which the employer owes to third persons.” In this case, the employers of the independent contractor were Schneider and Welsh. The question to be resolved is whether the Restatement’s provision that the employer may be liable to “third persons” for the failure to use reasonable care in hiring a contractor contemplates the inclusion of the contractor’s employees within the class of persons to be protected.

For the reasons we articulated with respect to the issue of vicarious liability which are applicable to the issue of direct liability here, we conclude that the liability of the employer for physical harm to “third persons” under the negligent hiring doctrine does not apply where injuries are sustained by an employee of the contractor as opposed to the general public. See, e.g., Hess v. Upper Mississippi Towing Corporation, 559 F.2d 1030 (5th Cir.), reh. denied, 564 F.2d 97 (1977), cert. denied, 435 U.S. 924, 98 S. Ct. 1489, 55 L. Ed. 2d 518 (1978); Chavis v. Finnlines Ltd., O/Y, supra; Jones v. United States, supra; Lipka v. United States, supra; Hagberg v. Sioux Falls, 281 F. Sup. 460 (D.S.D. 1968); Matanuska Electric Assn., Inc. v. Johnson, 386 P.2d 698, 702 n.14 (Alaska 1963); Schip v. Pabst Brewing Co., 64 Minn. 22, 66 N.W. 3 (1896). Accordingly, the trial court did not err in striking the first count of the plaintiff’s amended complaint for failure to state a cause of action for direct liability in negligence.

II

In the second count of his amended complaint, the plaintiff alleged that the defendant employer, Cheryl Stanton, doing business as Competitive Contracting Company, wilfully, wantonly and recklessly failed to provide the plaintiff with a safe place to work and failed to comply with certain requirements of the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 658 et seq. General Statutes § 31-367 et seq. Stanton sought and was granted summary judgment on the ground that as a matter of law she was immune from suit under General Statutes § 31-284 of the Workers’ Compensation Act; General Statutes § 31-275 et seq.; which section provides that an employer is not liable for damages sustained by an employee as a result of personal injury incurred during the course of employment. On appeal, the plaintiff claims that the exclusivity provision of § 31-284 does not apply to bar his tort action against the defendant employer because he received benefits from the second injury fund pursuant to the workers’ compensation statute; General Statutes § 31-284b; rather than from any workers’ compensation insurance coverage obtained by Stanton on his behalf. We disagree.

Under § 31-284 (a), an employer is not liable in “any action for damages on account of personal injury sustained by an employee arising out of and in the course of his employment . . . .” The only recognized judicially created exception to the exclusivity provisions of the act was announced in Jett v. Dunlap, 179 Conn. 215, 219, 425 A.2d 1263 (1979), where our Supreme Court held that an employee’s action against his employer claiming intentional assault by another employee “identified as the alter ego” of the employer would not be barred by § 31-284. The Jett exception expressly has not been extended judicially to include injuries to employees resulting from “intentional,” “wilful” or “reckless” violations by the employer of safety standards established pursuant to federal and state laws, such as OSHA. Mingachos v. CBS, Inc., 196 Conn. 91, 100, 491 A.2d 368 (1985). “To bypass the exclusivity of the act, the intentional or deliberate act or conduct alleged must have been designed to cause the injury that resulted.” Id., 102. In this case, the failure of the defendant employer to provide a safe place to work because of alleged intentional violations of OSHA, is not the type of intentional tortious conduct that falls within the parameters of any recognized exception to the exclusivity rule. See id., 100-103; see also Panaro v. Electrolux Corporation, 208 Conn. 589, 599, 545 A.2d 1086 (1988); Blancato v. Feldspar Corporation, 203 Conn. 34, 40-41, 522 A.2d 1235 (1987); Perille v. Raybestos-Manhattan-Europe, Inc., 196 Conn. 529, 531, 494 A.2d 555 (1985).

The fact that the plaintiff may have received workers’ compensation benefits from the second injury fund rather than from insurance obtained by Stanton is of no consequence. The plaintiff received compensation under the present comprehensive statutory scheme. That is all that is required in order to invoke the exclusivity provision. The plaintiff did, in fact, receive compensation under the Workers’ Compensation Act for his injuries. Whether that compensation came from a second injury fund or from his employer is not a material fact which would prevent summary judgment in this case.

“ ‘The purpose of the work[er]’s compensation statute is to compensate the worker for injuries arising out of and in the course of employment, without regard to fault, by imposing a form of strict liability on the employer.’ (Citation omitted.) Jett v. Dunlap, supra, 217. The act is to be broadly construed to effectuate the purpose of providing compensation ‘for an injury arising out of and in the course of the employment regardless of fault.’ Klapproth v. Turner, 156 Conn. 276, 279, 240 A.2d 886 (1968); Stapf v. Savin, 125 Conn. 563, 565, 7 A.2d 226 (1939). Under typical workers’ compensation statutes, employers are barred from presenting certain defenses to the claim for compensation, the employee’s burden of proof is relatively light, and recovery is expeditious. In a word, these statutes compromise an employee’s right to a common law tort action for work-related injuries in return for a relatively quick and certain compensation. See Iverson v. Atlas Pacific Engineering Ltd., 143 Cal. App. 2d 219, 191 Cal. Rptr. 696 (1983); 81 Am. Jur. 2d, Workmen’s Compensation § 2 (1976); see generally Larson, ‘The Nature and Origins of Workmen’s Compensation,’ 37 Cornell L.Q. 206 (1952). The purposes of the act are best served by allowing the remedial legislation a reasonable sphere of operation considering those purposes. See Adzima v. UAC/Norden Division, 177 Conn. 107, 117, 411 A.2d 924 (1979).” Mingachos v. CBS, Inc., supra, 97-98.

We also note that the act allows a greater amount of compensation to be paid to an employee “who suffers any injury or illness caused by his employer’s violation of any health or safety regulation . . . after such a violation has been cited with [OSHA] and not abated within the time fixed by the citation . . . .’’General Statutes § 31-307. “This provision buttresses the defendant employer’s position that the legislature did not intend to abrogate the exclusivity principle in a case such as that presented here.” Mingachos v. CBS, Inc., supra, 104; see also 2A A. Larson, Workmen’s Compensation Law § 68.30, p. 13-130 (when a penalty has been built into a compensation act to cover employer misconduct, the boundaries of the exclusivity principle are expanded to encompass that conduct and foreclose tort action).

Accordingly, the trial court did not err in granting summary judgment for the defendant Stanton because no material issue of fact was in dispute and Stanton was entitled to judgment as a matter of law.

There is no error.

In this opinion the other judges concurred.

       The plaintiffs amended complaint also contained allegations of negligence against Joseph C. Jodoin, Olive Jodoin, and Roslyn Realty, Inc., as the owners and lessees of various parcels of land on which a shopping center was being constructed, and against Clemence Stanton, the husband and employee of the defendant Cheryl Stanton. These other defendants are not involved in this appeal.

       Section 413 of 2 Restatement (Second) of Torts provides: “duty to provide FOR TAKING OF PRECAUTIONS AGAINST DANGERS INVOLVED IN WORK ENTRUSTED TO CONTRACTOR.
      “One who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if the employer
      “(a) fails to provide in the contract that the contractor shall take such precautions, or
      “(b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.”
      Section 416 of 2 Restatement (Second) of Torts provides: “WORK dangerous IN ABSENCE OF SPECIAL PRECAUTIONS.
      “One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take special precautions, even though the employer has provided for such precautions in the contract or otherwise.”
      Section 424 of 2 Restatement (Second) of Torts provides: “precautions REQUIRED BY STATUTE OR REGULATION.
      “One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards and precautions.”
      Section 427 of 2 Restatement (Second) of Torts provides: “negligence AS TO A DANGER INHERENT IN THE WORK.
      “One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused by such others by the contractor’s failure to take reasonable precautions against such danger.”
      The plaintiff does not rely on § 427A of 2 Restatement (Second) of Torts, which imposes vicarious liability on an employer who has hired an independent contractor to perform “abnormally” rather than “inherently” dangerous work. Section 427 imposes a vicarious liability on an employer for the negligence of an independent contractor performing inherently dangerous work, whereas under § 427A both the employer and the independent contractor are strictly liable for injuries occasioned by abnormally dangerous work.


author: Per Curiam.

text:
    Thomas Wilcox v. Borough of Naugatuck et al.
    (6977)
    Dupont, C. J., Borden and Spallone, Js.
    Submitted on briefs September 13
    decision released October 11, 1988

      Thomas G. Parisot filed a brief for the appellant (named defendant et al.).

      Edward T. Dodd, Jr., filed a brief for the appellee (plaintiff).
   Per Curiam.

The defendants are appealing a decision of the compensation review division of the workers’ compensation commission sustaining the granting, by the compensation commissioner of the plaintiff’s motion to preclude.

The plaintiff, Thomas Wilcox, was employed by the defendant borough of Naugatuck at the time he filed a claim for a compensable injury under the Workers’ Compensation Act. The defendant Connecticut Inter-local Risk Management Agency (CIRMA) was the borough’s compensation insurance carrier at that time.

In response to the plaintiffs notice of claim filed pursuant to General Statutes § 31-297 (b), CIRMA, in its status as the borough’s insurer, filed a disclaimer, via a workers’ compensation commission form 43-67 entitled “Notice to Compensation Commissioner and Employee of Intention to Contest Liability to Pay Compensation.” The pertinent disclaimer set forth as follows: “Employee did not sustain accidental injury as defined by the Workers’ Compensation Act. We deny the injury, any disability and causal relation.”

Thereupon, the plaintiff filed a motion to preclude alleging that the disclaimer was insufficient as a matter of law because it failed to disclose specific substantive grounds adequately to apprise him of the reasons why the defendants were contesting his claim.

Following the receipt of the parties’ briefs, the commissioner granted the motion to preclude, thereby preventing the defendants from contesting the plaintiff’s claim for compensation.

The defendants appealed the commissioner’s decision to the compensation review division which, by opinion dated April 8, 1988, affirmed the decision of the commissioner. From this decision of the compensation review division, the defendants have taken this appeal.

The sole claim of error before us is whether the disclaimer filed by the defendants sufficiently complies with the requirements of General Statutes § 31-297 (b) to allow the defendants to defend on the merits of the plaintiff’s claim. We agree with the commissioner and the review division that the language employed in the defendants’ purported disclaimer is inadequate and falls to conform to the mandates of § 31-297 (b) as enunciated in Menzies v. Fisher, 165 Conn. 338, 341-48, 334 A.2d 452 (1973).

In Menzies, the alleged disclaimer, in part, stated: “[W]e deny a compensable accident or injury.” Id., 341. Although, in the present case, the defendants’ attempted disclaimer contains more words, it, in essence, is nothing more than a general denial that the court in Menzies deemed inadequate to raise a contest. Therefore, we affirm the decision of the compensation review division.

There is no error.


text:
    Robert R. Vonick v. Candlewood Knolls Community, Inc.
    (6130)
    Borden, Daly and Stoughton, Js.
    Submitted on briefs September 1
    decision released October 11, 1988

      Peter S. Vannucci filed a brief for the appellant (plaintiff).

      Jeffrey D. Lynch filed a brief for the appellee (defendant).
   Per Curiam.

The plaintiff sought damages for harm to his property caused by water runoff from a road maintained by the defendant. The trial court overruled the plaintiff’s objections to the report of the attorney trial referee to whom the case was referred, and rendered judgment for the defendant. The plaintiff’s appeal hinges on whether a finding that the defendant did not own or control a certain eroded asphalt curb in front of the plaintiff’s property was clearly erroneous. We have reviewed the evidence on this issue, as presented to us in the parties’ briefs, and conclude that the finding was not clearly erroneous. Thus, the legal conclusion of the court that the defendant had no duty to maintain the curb was correct.

There is no error.


text:
    In re Grand Jury Investigation Concerning the Borough of Naugatuck
    (6622)
    Dupont, C. J., Borden and Spallone, Js.
    Submitted on briefs September 20
    decision released October 18, 1988

      M. Leonard Caine III filed a brief for the appellant (petitioner).

      James G. Clark and John M. Massameno filed a brief for the appellee (state).
   Per Curiam.

The sole question in this appeal is whether the statute in effect at the time an investigative grand jury was authorized governs a subsequent request for disclosure of the grand jury’s report, or whether the statute in effect when the report is issued governs such a request. Our Supreme Court has decided this question. The statute in effect when the grand jury was authorized governs. In re Grand Jury Investigation by Judge John M. Alexander, 207 Conn. 98, 107, 540 A.2d 49 (1988).

In this case, an investigative grand jury was authorized on December 20, 1984. On October 1, 1985, General Statutes (Rev. to 1985) § 54-47 was repealed and replaced by Public Acts 1985, No. 85-611, codified as General Statutes §§ 54-47a through 54-47h. The grand jury’s report was issued on April 24, 1987. The petitioner, the board of police commissioners of the borough of Naugatuck, sought disclosure of the report pursuant to General Statutes (Rev. to 1985) § 54-47. The trial court ruled that the new statutory procedure governed and dismissed the petition for disclosure. This was error.

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with law.


text:
    Burnice A. Mauro v. Ralph J. Mauro
    (6536)
    Dupont, C. J., Bieluch and O’Connell, Js.
    Submitted on briefs September 7
    decision released October 18, 1988

      James L. Katz and Randy Lynn Cohen filed a brief for the appellant (defendant).

      Peter J. Zaccagnino, Jr., filed a brief for the appellee (plaintiff).
   Per Curiam.

The defendant appeals from the judgment rendered in this dissolution of marriage action. The defendant claims that the trial court erred (1) by abusing its discretion in failing to recognize the value of the defendant’s one-half interest in the jointly owned marital home, (2) in ordering the defendant to maintain a $25,000 life insurance policy naming the plaintiff as irrevocable beneficiary where no grant of alimony was awarded, and (3) by permitting the plaintiff to retain approximately $40,000 in jointly owned assets which she unilaterally arrogated to herself after the dissolution proceedings were instituted. We find no error.

In his first claim of error, the defendant argues that the trial court abused its discretion in failing to recognize the value of his one-half interest in the jointly owned marital home. The record indicates that both parties introduced expert testimony concerning the value of that real estate. The defendant’s witness appraised its value at $190,000 and the plaintiff’s witness testified that it was worth $175,000. The court accepted the plaintiff’s valuation. It then subtracted an existing $18,200 mortgage and $10,800 in real estate commission and closing costs, which resulted in a net value of $146,000. The defendant was ordered to quitclaim his interest in the property to the plaintiff, who was ordered to pay him $55,000. This sum was to be secured by a mortgage deed and note payable in one year at 6 percent interest.

General Statutes § 46b-81 governs the assignment of property in dissolution actions. Subsection (a) provides that the trial court “may assign to either the husband or wife all or any part of the estate of the other.” Hence, there is no statutory authority for the defendant’s claim that he is per se entitled to one-half of the net value of the marital home. Tutalo v. Tutalo, 187 Conn. 249, 253, 445 A.2d 598 (1982); Hurtado v. Hurtado, 14 Conn. App. 296, 308, 541 A.2d 873 (1988).

Our examination of the record indicates that the court adequately considered the criteria set forth in § 46b-81 (c) when it awarded the defendant $55,000 as the value of his interest in the real estate. It was not required to make express findings on each of the statutory criteria, nor was it required to weigh each of them equally. Debowsky v. Debowsky, 12 Conn. App. 525, 526, 532 A.2d 591 (1987).

The defendant’s second claim of error alleges that the court erred in ordering that the plaintiff be continued as irrevocable beneficiary on the defendant’s existing $25,000 life insurance policy when the court failed to award alimony. The defendant argues that General Statutes § 46b-82 authorizes such an order only when its purpose is to secure alimony payments. Thus, he asserts, the court abused its discretion.

The trial court’s authority to order one former spouse to name and maintain the other as the primary beneficiary on a life insurance policy independent of an alimony award was upheld in Papageorge v. Papageorge, 12 Conn. App. 596, 533 A.2d 229 (1987). There, the trial court awarded the defendant periodic alimony that was to be secured by a nonnegotiable mortgage note on two of the plaintiff’s properties. In addition, the plaintiff was to maintain a $100,000 insurance policy on his life naming the defendant as beneficiary. Id., 598.

Our Supreme Court has also addressed this issue. In Gallo v. Gallo, 184 Conn. 36, 440 A.2d 782 (1981), it stated: “Such an order is well within the inherent equitable powers of the court.” Id., 47. It added, “[i]nsuranee premiums are paid during a decedent’s lifetime and the proceeds flow directly to the beneficiary. This is not analogous to a claim of continued payment of periodic alimony from the estate of the deceased ex-spouse.” Id.

While the facts in Gallo indicate that alimony was awarded, the court’s discussion of the issue fails to link the life insurance policy to the alimony award as further security for payment pursuant to General Statutes § 46b-82. See also Thomas v. Thomas, 159 Conn. 477, 271 A.2d ‘62 (1970). The court’s decision to order the defendant to keep his former spouse as irrevocable beneficiary of his $25,000 life insurance policy was within its equitable powers; Pasquariello v. Pasquariello, 168 Conn. 579, 585, 362 A.2d 835 (1975); and its decision is sufficiently supported by the record. There was no abuse of the court’s discretion.

In his final claim of error, the defendant argues that the court abused its discretion in permitting the plaintiff to retain approximately $40,000 in jointly owned assets that she unilaterally arrogated to herself after the commencement of the dissolution proceeding. He claims that by failing to make any order regarding this sum the court, in effect, rewarded the plaintiff for her own wrongdoing.

The trial court’s authority to assign property pursuant to General Statutes § 46b-81 “is permissive not mandatory.” O’Neill v. O’Neill, 13 Conn. App. 300, 306, 536 A.2d 978 (1988). It need not rule on every single possession owned by the parties.

The defendant had ample opportunity to challenge the absence of a ruling concerning the $40,000. He failed to raise it at the time of the judgment, or in his motion for special finding. In addition, he failed to seek articulation pursuant to Practice Book § 4051 or to move to open the judgment pursuant to Practice Book § 326. See Lucisano v. Lucisano, 200 Conn. 202, 205, 206 n.4, 510 A.2d 186 (1986); Misinonile v. Misinonile, 190 Conn. 132, 134, 459 A.2d 518 (1983).

There is no error.

       In the addendum to his brief, the defendant correctly states that the trial court’s inclusion of $10,800 in real estate commission and closing costs was not warranted by the evidence. This, however, does not support his claim that he was entitled to an exact “one half’ of the value of the marital home.


author: Daly, J.

text:
    Corosa Realty et al. v. Covenant Insurance Company
    (6146)
    Spallone, Daly and Bieluch, Js.
    Argued September 14
    decision released October 18, 1988

      Daniel J. Mahaney, with whom, on the brief, was Gary S. Roosa, for the appellants (plaintiffs).

      John E. Tener, for the appellee (defendant).
   Daly, J.

The plaintiffs, Corosa Realty and Domenic Rosa, sought damages from the defendant, Covenant Insurance Company, claiming that the defendant wrongfully refused to pay the proceeds of a fire insurance policy on a residence owned by Corosa Realty and occupied by Domenic Rosa which was destroyed by fire. The plaintiffs’ ten count complaint essentially alleged that the defendant, by failing to pay the loss, breached its contract with the plaintiffs and also the implied covenant of good faith and fair dealing. In its answer, the defendant denied the material allegations of the complaint and pleaded two special defenses: (1) that the loss to the property was caused either directly or indirectly by the acts committed by the plaintiff Domenic Rosa; and (2) that the plaintiffs failed to comply with the express conditions of the policy.

The following facts are not in dispute. Effective September 20, 1980, the defendant issued to the plaintiffs a policy of insurance for a period of one year, insuring the plaintiffs against loss or damage by fire to the dwelling house and the furniture therein. On February 23, 1981, while the policy was in effect, the dwelling house and its contents were extensively damaged by fire. The damage to the insured premises was such that the dwelling was rendered uninhabitable. Expert witnesses for both parties testified to the presence of an accelerant fluid at the fire’s point of origin.

Shortly before the fire, Rosa’s live-in girlfriend moved out of the premises, taking most of the contents with her. At the time of the fire, Rosa was experiencing major financial difficulties. Corosa Realty was functioning under the protection of the Bankruptcy Court and the premises were the subject of a foreclosure action, and encumbered by several liens.

The trial court found that the defendant had established by clear and convincing evidence that Domenic Rosa had the opportunity and motive to start the fire and that he did in fact start the fire. From the judgment rendered for the defendant, the plaintiffs appealed, claiming that the trial court erred in (1) concluding that the defendant had satisfied its burden of proof as to its arson defense, (2) failing to exclude the expert testimony and report of one of the defendant’s witnesses, and (3) failing to render a decision regarding the plaintiffs’ claim of defendant’s bad faith. We find no error.

The plaintiffs’ first claim is that the trial court erred in concluding that the acts of the individual plaintiff constituted clear and convincing evidence of arson. “Where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . . ” Davis v. Naugatuck, 15 Conn. App. 185, 188, 543 A.2d 785 (1988); see also Pandolphe’s Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980).

Our review of the record indicates that the evidence presented by the defendant meets the preponderance of evidence test set forth in Verrastro v. Middlesex Ins. Co., 207 Conn. 179,183, 540 A.2d 693 (1988). See also Souper Spud, Inc. v. Aetna Casualty & Surety Co., 5 Conn. App. 579, 581, 501 A.2d 1214 (1985), cert. denied, 198 Conn. 803, 503 A.2d 172 (1986). “[I]n order to establish a prima facie case of arson for purposes of denying coverage under an insurance policy, the insurer must establish that the fire was incendiary, that the insured . . . had an opportunity to cause the fire, and that [the insured] had a motive for setting the fire. . . . These elements must be proved by a preponderance of the evidence, which evidence may be either direct or circumstantial.” (Citation omitted.) Souper Spud, Inc. v. Aetna Casualty & Surety Co., supra, 585. The trial court found that an accelerant fluid was present at the fire’s point of origin and that the plaintiff Domenic Rosa had both the motive and opportunity to set the fire. On the basis of our review of the record, we conclude that the trial court’s conclusion was legally and logically correct. The defendant surpassed its burden by proving arson under the more exacting clear and convincing evidence standard of proof. Under either standard, the trial court did not err in concluding that arson had been proved by the defendant.

The plaintiffs’ second claim is that the trial court erred in permitting the testimony of the defendant’s expert witness, Daniel Slowick. Slowick was employed as a fire investigator by Connell Consultants, Ltd., a company that had been retained to investigate the claim of loss. The plaintiffs also claim that the trial court erred in admitting into evidence Slowick’s report for Connell Consultants, Ltd.

In their request for interrogatories, the plaintiffs sought, inter alia, all information concerning investigations undertaken at the scene of the loss. In its amended answer to the interrogatories, the defendant identified the names of the various investigators, the dates of their investigations, the number and length of the various reports and the essence of each report. Information pertaining to Slowick was included in the answer. Those interrogatories that requested the findings and conclusions of the reports, however, were unanswered by the defendant bn the basis of the “work product” doctrine. The trial court ruled that some of the plaintiffs’ interrogatories sought information that was the work product of the defendant’s attorneys, and was therefore not subject to discovery by the plaintiffs. During the trial, the defendant offered the Connell report as a full exhibit through Slowick, who had prepared the report. The plaintiffs objected to this evidence, on the basis of the decision in Sturdivant v. Yale-New Haven Hospital, 2 Conn. App. 103, 476 A.2d 1074 (1984).

The plaintiffs’ Sturdivant objection to this evidence was two-pronged. They claimed that there was a discrepancy in the dates when Connell was actually hired, the Connell report was not in fact the “work product” of the defendant’s attorney and, therefore, it was discoverable material. Because there was no work product protection, the plaintiffs argued, the defendant failed to answer the interrogatories fairly or answered them in a way calculated to mislead the court. Therefore, the plaintiffs argue on appeal, the trial court should have imposed sanctions on the defendant pursuant to Practice Book § 231 and Sturdivant.

The plaintiffs’ reliance on the propriety of the work product ruling is misplaced. Whether the Connell report was indeed the work product of the defendant’s attorney is irrelevant to the Sturdivant argument. Sturdivant and its progeny concern only the failure of a party to disclose the existence bf a retained expert or the expected substance of the expert’s trial testimony. Sturdivant v. Yale-New Haven Hospital, Inc., supra, 106-107; Kemp v. Ellington Purchasing Corporation, 9 Conn. App. 400, 403-405, 519 A.2d 95 (1986); Zimny v. Cooper-Jarrett, Inc., 8 Conn. App. 407, 426, 513 A.2d 1235 (1986); Hartford, v. Anderson Fairoaks, Inc., 7 Conn. App. 591, 600-601, 510 A.2d 200 (1986); Perez v. Mount Sinai Hospital, 7 Conn. App, 514, 518-19, 509 A.2d 552 (1986). When such a failure occurs, the trial court has the discretion to impose sanctions, pursuant to Practice Book § 231, on the party that fails to disclose and later attempts to introduce the witness or testimony. Sturdivant v. Yale-New Haven Hospital, Inc., supra, 106-107. This court will not allow parties to manipulate the rules of discovery and use them to turn litigation into a game of “cat and mouse.” Id.

The situation in this case differs markedly from that found in Sturdivant. There, the existence of the expert and the proposed subject matter of the testimony were completely unknown to the defendant until trial. Here, the plaintiffs knew from the answer to the interrogatories that the defendant intended to call Slowick as an expert and that Slowick would testify to his investigation of the fire scene. The action of the trial court is to be accorded great weight on appeal and is subject only to the test of abuse of discretion. Sturdivant v. Yale-New Haven Hospital, Inc., supra, 108. In this case, we cannot say that the trial court could not reasonably conclude as it did.

The plaintiffs, in their final claim of error, contend that the trial court erred in failing to address specifically the issue of tortious breach of contract in its memorandum of decision. This argument merits little discussion. While the memorandum of decision does not specifically mention the plaintiffs’ claim of breach of the implied covenant of good faith and fair dealing, the memorandum did state that “judgment may enter for the defendant.” Moreover, the judgment file states that “[t]he Court, having heard the parties, finds the issues for the defendant.” (Emphasis added.) When the judgment file indicates that the “issues” were found for a party, this means that all the material and disputed allegations in each pleading were so found. Mendrochowicz v. Wolfe, 139 Conn. 506, 509, 95 A.2d 260 (1953); Practice Book § 328. Thus, the record discloses that the trial court by its judgment found all of the issues for the defendant.

There is no error.

In this opinion the other judges concurred.

       At the time of trial, Domenic Rosa was a general partner and the owner of 95 percent of Corosa Realty.

       The case was originally tried before T. Sullivan, J., in May, 1985. In December, 1985, the plaintiffs filed a motion for a new trial, claiming that the trial court had failed to render its decision within the statutory time limits of General Statutes § 51-183 (b). The motion was granted on August 21, 1986. Accordingly, the trial court, J. Healey, J., was empowered to review the entire proceedings and record and render its decision.

       Moreover, there is no indication in the record that the plaintiffs ever filed a motion for articulation under Practice Book § 4051.


author: Norcott, J.

text:
    Paul T. Biagioni v. Aetna Life and Casualty Company et al.
    (6585)
    Borden, Foti and Norcott, Js.
    Submitted on briefs September 20
    decision released October 25, 1988

      Salvatore Bonanno filed a brief for the appellant (plaintiff).

      Robert M. LaRose and Jaime B. Thomas, law student intern, filed a brief for the appellees (defendants).
   Norcott, J.

In this negligence action, the plaintiff appeals from the judgment rendered on a jury verdict in his favor. On August 15, 1984, the plaintiff, while driving his motorcycle, collided with a van owned by the named defendant on Old Windsor Road in the town of Bloomfield. The plaintiff brought suit to recover damages for injuries he suffered as a result of the defendants’ negligence, including medical expenses, lost wages, property damage, and pain and suffering.

After a trial to the jury, a general verdict in the amount of $2069.84 was awarded to the plaintiff, $1744.84 as compensation for his injuries and $325 for his property damage. The plaintiff submitted no interrogatories to the jury and did not request that the trial court order the jury to reconsider the verdict. The only requests the plaintiff made after the verdict was rendered were an unsuccessful motion to set aside the verdict and a successful motion for extension of time in which to file the appeal.

On appeal, the plaintiff claims that the trial court erred (1) in accepting the jury verdict without requiring the jury to reconsider the damages, (2) in refusing to order an additur, and (3) in refusing to set aside the jury verdict.

“It is an established rule of appellate practice in this state that in order to obtain a full review of claims of error in civil jury cases, parties must raise those errors with the trial court and file a motion to set aside the verdict.” Kolich v. Shugrue, 198 Conn. 322, 325, 502 A.2d 918 (1986); Practice Book § 4185. This rule is designed to afford the trial court an opportunity to correct any errors that may have occurred at trial before the appellate process begins. See Small v. South Norwalk Savings Bank, 205 Conn. 751, 759, 535 A.2d 1292 (1988). In this case, the plaintiff moved to set aside the verdict but did not include either of his first two claims of error within that motion. He never requested that the trial court order the jury to reconsider its verdict before it was dismissed, and the verdict was returned and accepted without objection. Nor did he request at trial that the court order an additur. The plaintiff’s failure to raise these claims for the consideration of the trial court precludes him from raising them in this appeal.

With respect to the plaintiff's final claim of error, we must determine only “ ‘whether the trial court abused its discretion in denying the plaintiff[’s] motion to set aside the verdict. Such a decision “can be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice or the mind is convinced that it is in fact entirely disproportionate to the injury. [Maltbie,] Conn. App. Proc., p. 151.” Mulcahy v. Larson, 130 Conn. 112, 114, 32 A.2d 161 (1943).’ ” Sepe v. Deemy, 9 Conn. App. 524, 528, 520 A.2d 237 (1987), quoting Zarrelli v. Barnum Festival Society, Inc., 6 Conn. App. 322, 327, 505 A.2d 25, cert. denied, 200 Conn. 801, 509 A.2d 516 (1986). In the present case, the jury returned a general verdict after which the plaintiff filed a very brief and general motion to set aside the verdict, claiming that the verdict was inadequate and contrary to the law and the evidence presented. The trial court found no indication that the jury’s verdict was a result of mistake, partiality, prejudice or corruption, and found no circumstances requiring the court to disturb the jury verdict. On our review of the entire record, we agree with the trial court. Nothing in the evidence supports the plaintiffs claim that the jury’s award did not fall somewhere within the necessarily uncertain limits of just damages, or that it shocked the sense of justice. See Zarrelli v. Barnum Festival Society, Inc., supra. “Furthermore, a parsimonious jury award is not inadequate as a matter of law.” Shea v. Paczowski, 11 Conn. App. 232, 235, 526 A.2d 558 (1987).

There is no error.

In this opinion the other judges concurred.

       The plaintiff also moved for articulation of the trial court’s denial of his motion to set aside the verdict.


text:
    In re Davon M.

    (6347)
    Stoughton, Norcott and Foti, Js.
    Argued September 20
    decision released October 25, 1988

      Stephen P. Hanchuruck, for the appellant (respondent).

      Carl J. Schuman, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, and Judith Merrill Earl, assistant attorney general, for the appellee (petitioner).

      Antonio C. Robaina, for the minor child.

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

   Norcott, J.

The principal issue raised in this appeal is whether the trial court erred in terminating the parental rights of the respondent for failure to rehabilitate himself within the meaning of General Statutes § 17-43a. Specifically, the respondent claims that the trial court relied on definitions of “rehabilitation” and “personal rehabilitation” that do not reflect the changes in § 17-43a effected by Public Acts 1983, No. 83-478. We do not agree.

Our review of this case discloses that the trial court properly considered the statutory criteria of personal rehabilitation within the meaning of General Statutes § 17-43a (b) (2). See generally In re Migdalia M., 6 Conn. App. 194, 207, 504 A.2d 532, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986). As the trial court duly acknowledged in its thoughtfully detailed memorandum of decision, the amendment of § 17-43a affected only the length of time a parent has to rehabilitate himself, not the meaning of the term “rehabilitation.” The respondent’s claim that the statutory amendment affected the definition of the term “rehabilitation” is without merit.

The respondent also contends that the determination of what constitutes a reasonable time for rehabilitation within the meaning of the statute is a question of law and not one of fact, as the trial court found. This claim has no support in the law. Our Supreme Court, to the contrary, has consistently held that reasonableness is a question of fact. See State v. Duhan, 194 Conn. 347, 359, 481 A.2d 48 (1984); Peterson v. Oxford, 189 Conn. 740, 745-47, 459 A.2d 100 (1983); Rene Dry Wall Co. v. Strawberry Hill Associates, 182 Conn. 568, 573, 438 A.2d 774 (1980). Furthermore, it is untenable to construe the statutory language here, which requires “consideration of the age and needs of the child,” as having a fixed legal meaning.

Our limited function on appeal is to determine whether the trial court’s conclusion was legally correct and factually supported. In re Shavoughn K., 13 Conn. App. 91, 98, 534 A.2d 1243 (1987), cert. denied, 207 Conn. 805, 540 A.2d 374 (1988); In re James T., 9 Conn. App. 608, 617, 520 A.2d 644 (1987). We conclude that the trial court appropriately considered the relevant statutory criteria, and that its findings were amply supported by clear and convincing evidence pursuant to General Statutes § 17-43a (b).

There is no error.

In this opinion the other judges concurred.

       General Statutes (Rev. to 1983) § 17-43a provided in pertinent part:
      “TERMINATION OF PARENTAL RIGHTS OF CHILD COMMITTED TO COMMISSIONER. (a) In respect to any child committed to the commissioner of children and youth services in accordance with section 46b-129, either the commissioner, or the attorney who represented such child in the prior commitment proceeding, or an attorney appointed by the superior court on its own motion, or an attorney retained by such child after attaining the age of fourteen may petition the court for the termination of parental rights with reference to such child, including the right to petition the court for the revocation of the commitment of the child. The superior court upon hearing and notice, as provided in sections 45-61d and 45-61f, may grant such petition if it finds, upon clear and convincing evidence, that over an extended period of time, which, except as hereinafter provided in this subsection, shall not be less than one year: ... (2) the parents have failed to achieve any such degree of personal rehabilitation as would reasonably encourage the belief that at some future date they could assume a responsible position in their child’s life . . . .” (Emphasis added.)
      General Statutes § 17-43a, as amended, provides in pertinent part: “termination OF PARENTAL RIGHTS OF CHILD COMMITTED TO COMMISSIONER, (a) In respect to any child committed to the commissioner of children and youth services in accordance with section 46b-129, either the commissioner, or the attorney who represented such child in the prior commitment proceeding, or an attorney appointed by the superior court on its own motion, or an attorney retained by such child after attaining the age of fourteen may petition the court for the termination of parental rights with reference to such child, including the right to petition the court for the revocation of the commitment of the child ....
      “(b) The superior court upon hearing and notice, as provided in sections 45-61d and 45-61f, may grant such petition if it finds, upon clear and convincing evidence, that the termination is in the best interest of the child and that . . . with respect to any nonconsenting parent, over an extended period of time, which, except as provided in subsection (c) of this section, shall not be less than one year: . . . (2) the parents of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, they could assume a responsible position in the life of the child . . . .” (Emphasis added.)

       The respondent is correct that the trial court relied on two separate definitions of “rehabilitation” and “personal rehabilitation” in its memorandum of decision. The court concluded that the definition of “personal rehabilitation” as “the restoration of a parent to his . . . former constructive and useful role as a parent”; In re Migdalia M., 6 Conn. App. 194, 203, 504 A.2d 532 (1986); was narrower than the definition of “rehabilitation” set forth in In re Juvenile Appeal (84-3), 1 Conn. App. 463, 477, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984), namely, the restoration of a person “to a useful and constructive place in society through social rehabilitation.” We fully agree with the trial court, however, that under the facts of this case the petitioner, the department of children and youth services, met its burden under either definition.


author: Stoughton, J.

text:
    Deborah M. Niles v. Robert P. Evitts et al.
    (6448)
    Borden, Daly and Stoughton, Js.

      Submitted on briefs September 1
    decision released October 25, 1988

      Matthew B. Woods and Philip Baroff filed a brief for the appellant (plaintiff).

      Ralph F. Scofield filed a brief for the appellees (defendants).
   Stoughton, J.

The plaintiff brought this action for damages for personal injuries sustained in a collision between the plaintiff’s car and a truck owned by the defendant Spector Industries and driven by the defendant Robert P. Evitts. The plaintiff appeals from the judgment rendered by the trial court on the jury’s verdict. The jury fixed just and fair damages for the plaintiff’s injuries at $25,000. Applying the principles of comparative negligence and reducing the amount of damages by 30 percent for the plaintiff’s own negligence, the jury returned a net verdict of $17,500 for the plaintiff which was accepted by the court.

The dispositive issue on appeal is whether, as the plaintiff contends, the trial court erred in refusing to charge the jury that it could infer that her injuries resulted in a permanent disability. We agree with the plaintiff.

On December 8, 1981, the plaintiff and the named defendant were involved in a traffic accident. The plaintiff claimed that she was in the left lane when the named defendant made a left turn from the right lane and struck her car. The defendant claimed that he had signaled before making his turn and that the plaintiff came up behind him and struck the side of his truck. The plaintiff declined medical assistance at the scene of the accident, but she did visit a doctor later that day. The doctor found no evidence of permanent damage. Over the next six years, however, the plaintiff complained of recurrent bouts of pain.

Aside from her own testimony, the only evidence regarding the plaintiffs permanent disability came from two letters written by her chiropractors. A 1983 letter stated that there was a possibility of 15 percent disability and a 1987 letter stated that “[i]t is apparent that the [plaintiffs] symptoms are going to be recurrent.” The plaintiff testified that she saw a chiropractor in December, 1981, and was treated for pain in the shoulders, neck and low back. She also complained of such pain in a visit to a physician in January, 1982. She continued to seek chiropractic treatment until she moved to Florida in 1984. She resumed chiropractic treatment in 1987 and was receiving this treatment at the time of trial. The plaintiff testified she was still experiencing intervals of pain. The medical report in evidence showed that the plaintiff had complained of back pain in 1982.

The plaintiff claims that there was sufficient evidence for the jury to infer that her injuries resulted in permanent disability and that, consequently, the trial court erred in removing this issue from the jury’s consideration. We agree. “ ‘A trier of facts can conclude, by inference, that an injury will be permanent even though there is no medical testimony expressly substantiating permanency.’ Royston v. Factor, 1 Conn. App. 576, 577, 474 A.2d 108 (per curiam), cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984).” Dibble v. Ferguson, 15 Conn. App. 97, 99, 543 A.2d 294 (1988). In this case, there was some evidence from which the jury could infer that the plaintiffs injuries were permanent. Accordingly, the plaintiff was entitled to have the jury consider that issue in its deliberations. See id., 101.

The plaintiff requests that this case be remanded solely for a hearing on damages. Conversely, the defendants contend that a new trial on all the issues is in order. We agree with the defendants.

An order restricting the issues on remand is the exception, not the rule. “[A]n order for the restriction of the issues [on remand] will never be made unless the court can clearly see that this is the way of doing justice in that case.” Murray v. Krenz, 94 Conn. 503, 508, 109 A. 859 (1920); Montanaro Bros. Builders, Inc. v. Snow, 4 Conn. App. 46, 55, 492 A.2d 223 (1985). “As a rule the issues are interwoven, and may not be separated without injustice to one of the parties.” Murray v. Krenz, supra, 508.

The plaintiff posits her claim for a limited remand on our decision in Malmberg v. Lopez, 12 Conn. App. 438, 447, 531 A.2d 161 (1987), rev’d, 208 Conn. 675, 546 A.2d 264 (1988). Our decision in Malmberg was reversed by the Supreme Court after the parties to this appeal had submitted their briefs. “ ‘[WJhere . . . liability is contested and an appellate court is unable to infer whether upon a new trial a jury would find in favor of the defendant or in favor of the plaintiff an appellate court must remand the case for a trial on all issues.’ [Freshwater v. Booth, 233 S.E.2d 312, 316 (W. Va. 1977)].” Malmberg v. Lopez, 208 Conn. 675, 682, 546 A.2d 264 (1988).

In the present case, the defendants’ liability is not clear cut. Indeed, it is tempered by the jury’s determination that the plaintiff was 30 percent negligent herself. Further, a liability verdict that by its very nature acts to reduce the amount of damages one side must pay means that the issues of liability and damages are “inextricably interwoven.” Murray v. Krenz, supra, 508. Additionally, there is little fear that the jury was motivated by sympathy for one party since it found both parties had been negligent. Finally, the defendants clearly seek a new trial on all the issues. This is not a case where the issues of damages and liability are so separate and distinct that we can order a limited remand.

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

In this opinion the other judges concurred.

       The trial court instead instructed the jurors that they were not to consider the permanency of any of the plaintiffs injuries.


author: Foti, J.

text:
    Craig Green et al. v. Holy Trinity Church of God in Christ et al.
    (6479)
    Spallone, Norcott and Foti, Js.
    Submitted on briefs September 1
    decision released October 25, 1988

      William F. Gallagher and Charles R. Douthat filed a brief for the appellants (defendants).

      Carol A. Brown filed a brief for the appellees (plaintiffs).
   Foti, J.

The defendants, Alton Barnes and the Holy Trinity Church of God in Christ, appeal from the denial of their motion to dissolve or modify an ex parte prejudgment attachment granted pursuant to General Statutes § 52-278e. The defendants claim that the trial court erred in finding that there was sufficient evidence to establish probable cause (1) that the defendants were negligent and that their negligence was the cause of the named plaintiff’s injuries, and (2) that at a trial on the merits, the plaintiffs would recover damages of $1,000,000. We find no error.

The trial court could reasonably have found the following facts. On September 21, 1986, the defendant Barnes hired Green to renovate a garage owned by the defendants and located on Winthrop Avenue, for the purpose of converting it into a church building. On September 27, 1986, Barnes instructed Green to tear down the garage. After Green had taken the roof off the building, he proceeded, at Barnes’ request, to remove the garage doors. Green cut the cables to the first two doors without incident, but when he cut the cable to the third door, it fell and struck “something” containing a caustic substance which splashed him causing a burning sensation to his face, eye, lips, neck, leg and penis. Green sustained an injury to his left eye which resulted in a permanent loss of vision and, as of the date of the attachment, incurred $8278 in medical expenses and $11,500 in lost wages. At no time was Green informed that the garage had previously been used for the storage of automobiles, nor was he warned that any danger existed on the premises.

On July 27, 1987, the plaintiffs obtained an ex parte prejudgment remedy to attach the real property of the defendants in the amount of $1,000,000. On October 3, 1987, the defendants moved to modify or dissolve the prejudgment attachment. The trial court held a hearing at which it heard testimony from both plaintiffs and the defendant Barnes, and received evidence of Green’s medical reports, medical bills and lost wages. In addition, the court heard evidence in support of the plaintiff Terri Green’s claim for loss of consortium. Included in the record, were affidavits submitted by the plaintiffs in support of their ex parte prejudgment attachment.

We have recently examined the trial court’s function in considering prejudgment remedy motions: “[T]he trial court ‘must evaluate the arguments and evidence produced by both parties.’ Augeri v. C. F. Wooding Co., 173 Conn. 426, 429, 378 A.2d 538 (1977). The trial court, however, need not make a full and final decision on the . . . plaintiff’s . . . claim, as the probable cause hearing ‘is not intended to be a full-scale trial on the merits.’ Id. Rather, the trial court, in ruling upon the defendant’s motion, need only weigh the evidence presented and ‘determine probable success by weighing probabilities.’ Three S. Development Co. v. Santore, 193 Conn. 174, 176, 474 A.2d 795 (1984).” Gibbs v. Mase, 11 Conn. App. 289, 295, 526 A.2d 7 (1987). In addition, the trier of the fact is entitled to draw reasonable inferences based on the facts proven. Duley v. Plourde, 170 Conn. 482, 486-87, 365 A.2d 1148 (1976).

This court’s role in reviewing the trial court’s probable cause determination is limited. “In its determination of probable cause, ‘the trial court is vested with broad discretion which is not to be overruled in the absence of clear error. Augeri v. C. F. Wooding Co., [supra].’ Three S. Development Co. v. Santore, supra.” Soloman v. Aberman, 196 Conn. 359, 364, 493 A.2d 193 (1985). Our role as a reviewing court is limited to determining whether the trial court’s conclusion was reasonable, and we may not duplicate the trial court’s weighing process. Babiarz v. Hartford Special, Inc., 2 Conn. App. 388, 393-94, 480 A.2d 561 (1984). “ ‘In the absence of clear error, this court should not overrule the thoughtful decision of the trial court, which has had an opportunity to assess the legal issues which may be raised and to weigh the credibility of at least some of the witnesses.’ ” Three S. Development Co. v. Santore, supra, quoting Augeri v. C. F. Wooding Co., supra. Therefore, at this time, we need only decide whether the trial court’s conclusions were reasonable under the “clear error” standard.

From the evidence presented to the trial court, it could reasonably have found the following. Green was hired by the defendant Barnes to perform work on a garage owned by the defendants. The defendant instructed Green as to how to proceed with the work, but never warned him of the dangerous condition that existed on the premises. As a landowner, the defendant had a duty to use reasonable care to maintain the premises, which were under his control, in a reasonably safe condition. Under these circumstances, we conclude that it was not clear error for the trial court to find probable cause and therefore, to deny the defendants’ motion to dissolve the prejudgment attachment.

We also must determine whether it was “clear error” for the trial court to refuse to order a modification of the dollar amount of the prejudgment attachment. Again, the plaintiffs are not required to establish their case by a fair preponderance of the evidence but need only show the probable validity of their claim. Augeri v. C. F. Wooding, supra, 428. See also, Ledgebrook Condominium Assn., Inc. v. Lusk Corporation, 172 Conn. 577, 376 A.2d 60 (1977). In light of the evidence presented to the trial court, we cannot say that its determination was clearly erroneous.

In addition to offering evidence of a permanent loss of vision in his left eye, Green presented evidence of medical expenses, lost wages, pain and suffering, and mental anguish, which he claimed were effects of his injuries on his personal life. Green’s wife testified in support of her claim for loss of consortium. We conclude that the testimonial and documentary evidence was sufficient to support the trial court’s probable cause determination and its denial of the motion to modify the prejudgment attachment.

Whether the plaintiffs, in a trial on the merits, will be able to prove they are entitled to damages in the amount of the prejudgment attachment is not the issue now before us. We conclude that the trial court’s decision neither to dissolve nor to modify the prejudgment attachment order was not clearly erroneous.

There is no error.

In this opinion the other judges concurred.

       The complaint names Alton Barnes as defendant both individually and as agent for the defendant Holy Trinity Church of God in Christ.

       The trial court incorrectly cited “General Statutes § 52-278” as the authority for the prejudgment attachment. Since that statute is inapplicable to this action, we presume the trial court intended to cite General Statutes § 52-278e.
      General Statutes § 52-278e provides in pertinent part: “(a) The court or a judge of the court may allow the prejudgment remedy to be issued by an attorney without hearing as provided in sections 52-278c and 52-278d upon verification by oath of the plaintiff or of some competent affiant, that there is probable cause to sustain the validity of the plaintiffs claim and (1) that the prejudgment remedy requested is for an attachment of real property ....
      “(c) The defendant appearing in such action may move to dissolve or modify the prejudgment remedy granted pursuant to this section in which event the court shall proceed to hear and determine such motion expeditiously. If the court determines at such hearing requested by the defendant that there is probable cause to sustain the validity of the plaintiffs claim, then the prejudgment remedy granted shall remain in effect. If the court determines there is no such probable cause, the prejudgment remedy shall be dissolved. An order shall be issued by the court setting forth the action it has taken.”

       The named plaintiff is Craig Green (hereinafter Green). The second plaintiff is Craig Green’s wife, Terri Green, who is suing the defendants for loss of consortium.

       Although the defendants’ motion does not indicate whether they rely upon General Statutes § 52-278e or 52-278k, we presume their claim was brought pursuant to § 52-278e and is therefore an appealable final judgment. For a full discussion on the distinction between these two statutes for final judgment purposes, see Gibbs v. Mase, 11 Conn. App. 289, 292-94, 526 A.2d 7 (1987).