author: DUPONT, J.

text:
    MICHELE TRYON v. TOWN OF NORTH BRANFORD ET AL.
    (AC 19226)
    SchaUer, Pellegrino and Dupont, Js.
    Argued March 28
    officially released July 11, 2000

      Stephen M. Reck, with whom was Michael W. Mal-chik, for the appellant (plaintiff).

      Thomas R. Gerarde, with whom were Melinda A. Powell and, on the brief, Daniel C. DeMerchant, for the appellees (named defendant et al.).

      R. Jack Lucas, with whom, on the brief, was Joseph B. Curran, for the appellees (defendants 100th Anniversary Committee et al.).

      William J. Melley, with whom, on the brief, was William B. Wynne, for the appellee (defendant Rush Turner III).
   Opinion

DUPONT, J.

The plaintiff, Michele Tryon, appeals from the trial court’s judgment granting the defendants’ motions for summary judgment in this personal injury action in which the plaintiff was bitten by a dog while in the staging area of a firefighters’ parade. On appeal, the plaintiff claims that the trial court improperly concluded that (1) the plaintiff did not qualify for an exception to the doctrine of governmental immunity as an identifiable person subject to imminent harm and (2) the doctrine of governmental immunity precluded the plaintiffs claims alleging strict liability pursuant to General Statutes § 22-357. We affirm the judgment of the trial court in all respects except with respect to the plaintiffs first claim on appeal, as alleged in counts four and five of her amended complaint.

The following facts are not disputed and are relevant to our resolution of this appeal. On September 17,1995, the plaintiff, a firefighter in uniform, attended the 1995 Connecticut State Fireman’s Convention Parade held in Jewett City. The defendant Rush Turner III (Turner) is a volunteer firefighter with the defendant North Bran-ford fire department, and the owner and keeper of the dog that bit the plaintiff. Turner participated in the parade as a member of the fire department. With the permission of his supervisors, Turner brought his dog, a dalmatian, along with him to the parade.

Prior to the commencement of the parade, Turner and his dog were in the staging area for the parade, which was located on a street adjacent to the parade route. Just before the plaintiff approached the dog, one of the firefighters in the staging area waved a bagel in front of the dog. The dog attempted to jump at the bagel but was prevented from doing so because Turner had a tight grip on the dog’s leash. Thereafter, according to the deposition testimony of Turner,* ** the plaintiff approached the dog, grabbed its ears, “digging her fingernails tight behind the dog’s ears,” and pulled and jerked the dog’s face toward her own. The dog bit the plaintiff in the nose, causing the plaintiff to lose part of her nose. According to Turner, the incident happened so fast that there was nothing he could do to stop the plaintiffs actions.

In September, 1996, the plaintiff brought an action against twelve separate defendants seeking damages for her injuries. The plaintiff alleged causes of action for strict liability under § 22-357, and common-law negligence and indemnification pursuant to General Statutes (Rev. to 1995) § 7-308. The defendants filed three separate motions for summary judgment, all alleging that they were entitled to judgment as a matter of law on the basis of governmental immunity. The plaintiff filed memoranda in opposition to these motions and attached excerpts from the transcript of the deposition testimony of Turner. The defendants also relied on Turner’s deposition testimony in support of their respective motions.

The trial court, in a memorandum of decision dated December 16, 1998, granted all three motions for summary judgment in favor of the defendants. The trial court concluded that at the time of the dog bite incident, Turner was performing a governmental duty of a discretionary nature and was therefore entitled to qualified governmental immunity. The court also concluded that the plaintiff failed to prove that she qualified for an exception to this immunity, which exception permits an action where the circumstances make it apparent to municipal employees that their failure to act would likely subject an identifiable person to imminent harm. The court also concluded that § 22-357, which imposes strict liability on an “owner or keeper” of a dog who bites an individual, does not apply to a municipal employee who is immune from liability for discretionary acts performed in the course of his duties and whose conduct does not fall within any of the exceptions to governmental immunity.

“Our standard of review of a trial court’s decision to grant a motion for summary judgment is well established. ‘Practice Book § 384 [now § 17-49] provides that 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. . . . Miller v. United Technologies Cow., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.’ . . . Tarzia v. Great Atlantic & Pacific Tea Co., 52 Conn. App. 136, 145, 727 A.2d 219 (1999).

“ ‘On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ . . . Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). Because the trial court rendered judgment for the defendants as a matter of law, ‘our review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record.’ . . . Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995). ‘On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous.’ 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 567, 636 A.2d 1377 (1994).” Kramer v. Petisi, 53 Conn. App. 62, 66-67, 728 A.2d 1097, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999).

In deciding whether it is appropriate to render summary judgment, a court is not necessarily entitled to assume the truth of a defendant’s declarations concerning intent or a fact known only to a defendant simply because of the absence of an affidavit contradicting the declarations. Batick v. Seymour, 186 Conn. 632, 645-46, 443 A.2d 471 (1982). Summary judgment is inappropriate where the inferences that the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions. Nolan v. Borkowski, 206 Conn. 495, 505, 538 A.2d 1031 (1988). The failure to file an opposing affidavit or documentary evidence where motive, intent or subjective feelings and reactions are involved does not entitle the moving party to a favorable inference as to the truth of his affidavit or documentary evidence. Id., 504. If, however, motive, intent or subjective views are not involved, the failure to file a contradictory, competent affidavit in opposition to the motion for summary judgment could entitle the movant to a favorable inference as to the truth of the affidavit or deposition testimony. Collum v. Chapin, 40 Conn. App. 449, 450 n.2, 671 A.2d 1329 (1996).

I

The plaintiffs first claim is that the trial court improperly concluded, as a matter of law, that she failed to prove that she was an identifiable person subject to imminent harm so as to come within an exception to the doctrine of governmental immunity.

The doctrine that determines the tort liability of municipal employees is well established. “ ‘Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct. Evon v. Andrews, [211 Conn. 501, 505, 559 A.2d 1131 (1989)]; Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165, 544 A.2d 1185 (1988). The doctrine of governmental immunity has provided some exceptions to the general rule of tort liability for municipal employees. [A] municipal employee . . . has a qualified immunity in the performance of a governmental duty, but he may be hable if he misperforms a ministerial act, as opposed to a discretionary act.’ . . . Burns v. Board of Education, [228 Conn. 640, 645, 638 A.2d 1 (1994)]. ‘[T]he ultimate determination of whether qualified immunity apphes is ordinarily a question of law for the court . . . [unless] there are unresolved factual issues material to the applicability of the defense . . . [where] resolution of those factual issues is properly left to the jury.’ Mulligan v. Rioux, 229 Conn. 716, 736, 643 A.2d 1226 (1994).” Purzycki v. Fairfield, 244 Conn. 101, 107-108, 708 A.2d 937 (1998).

The plaintiff alleges in her complaint, and the defendants agree, that Turner was engaged in the performance of a governmental duty at the time of the dog bite incident that caused the plaintiffs injuries. It is not clear whether the plaintiff concedes that the duty owed by Turner was discretionary, not ministerial, in nature. The plaintiff, in a footnote in her brief, appears to claim that the dog bite statute, § 22-357, involves a ministerial act because liability pursuant to the statute does not involve discretion or judgment. She makes no argument, however, that participation by Turner in the parade is a ministerial rather than a discretionary act, nor was such a claim made in the trial court. We agree with the trial court that Turner was engaged in a discretionary act and review this appeal accordingly.

In order to prevail, the plaintiff must fall within one of the recognized exceptions to a municipal employee’s qualified immunity for discretionary acts. “ ‘Our cases recognize three such exceptions: first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.’ . . . Burns v. Board of Education, supra, 228 Conn. 645; Evon v. Andrews, supra, 211 Conn. 505.” Purzycki v. Fairfield, supra, 244 Conn. 108.

The only exception to the qualified immunity of a municipal employee for discretionary acts that is of relevance to the present case is the exception permitting a tort action in circumstances where a failure to act will subject an identifiable person to imminent harm. Our Supreme Court has “construed this exception [to governmental immunity] to apply not only to identifiable individuals but also to narrowly defined identified classes of foreseeable victims.” (Internal quotation marks omitted.) Id. “The ‘discrete person/imminent harm’ exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state.” Evon v. Andrews, supra, 211 Conn. 507.

The plaintiff claims that she was within a narrowly defined class of foreseeable victims so as to come within the exception. The plaintiff claims that she was, in a literal sense, an identifiable person because Turner saw her bend down to pet the dog. Whether that is so or whether all of those watching a parade or observing the participants in the parade prior to the parade’s beginning are an identifiable class of persons that are included in the exception, however, need not be decided. The plaintiff was not a member of the general public attending a parade but a firefighter in uniform in the staging area one block away from the site of the parade when the dog bit her.

The trial court held that construing- the plaintiffs allegations in the light most favorable to the plaintiff, she was an “identifiable person.” An individual may be “identifiable” for purposes of the exception to qualified governmental immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition. Purzycki v. Fairfield, supra, 244 Conn. 110. Here, the harm did occur within a framework limited in duration, place and condition. We agree with the trial court that the plaintiff was an “identifiable person” within the meaning of the exception.

The court, however, also held that although the plaintiff was an identifiable person, she had failed to offer any evidence to show that she was subject to imminent harm. We must next determine, on the basis of the motions for summary judgment and the deposition testimony of Turner, whether the trial court correctly concluded that the material fact of imminent harm was not in dispute. See id., 109.

The defendants rely on Evon v. Andrews, supra, 211 Conn. 507-508, in which our Supreme Court discussed the identifiable person-imminent harm exception to the general rule of qualified governmental immunity. In that case, the plaintiffs sought damages for the wrongful death of their decedents who had been killed when fire destroyed their apartment. The plaintiffs brought an action against the city of Waterbury and various city officials, claiming that they had been negligent in failing to enforce properly various statutes, regulations and codes concerning the maintenance of rental dwellings. The site of the fire contained numerous conditions that violated state regulations and local building codes, and the plaintiffs claimed that the defendants were negligent in failing to inspect the premises properly or to remedy the deficiencies. The trial court granted the defendants’ motion to strike these claims on grounds of governmental immunity and the plaintiffs appealed, claiming that they had alleged sufficient facts to qualify for the identifiable person-imminent harm exception to governmental immunity.

Our Supreme Court stated that “the plaintiffs’ decedents were not subject to ‘imminent harm.’ This is clearly not the situation in which a police officer stood by and watched a public brawl that resulted in a person being shot. See Sestito v. Groton, [178 Conn. 520, 523, 423 A.2d 165 (1979)]. The present allegations do not even rise to the level of the imminence we rejected in Shore v. Stonington, [187 Conn. 147, 157, 444 A.2d 1379 (1982)], in which a police officer permitted a drunk driver to continue on his way, resulting in the death of the plaintiffs decedent. In the present instance, the fire could have occurred at any future time or not at all. We cannot accept the proposition that the plaintiffs’ decedents in this case were readily identifiable victims subject to imminent harm. As we observed in Shore v. Stonington, supra, 157, ‘[t]he adoption of a rule of liability where some kind of harm may happen to someone would cramp the exercise of official discretion beyond the limits desirable in our society.’ ” Evon v. Andrews, supra, 211 Conn. 508.

The court’s reasoning in Evon was based on the fact that the risk of fire arising from the maintenance of several dwellings implicates a wide range of factors that could occur, if at all, at some time in the future. The condition alleged was, therefore, not a situation where imminent harm, namely, harm ready to take place within the immediate future, existed. The court also noted that the possible victims of an unspecified fire that may occur at some unspecified time in the future does not provide a class of identifiable persons. We do not conclude that Evon is analogous to the present case, based on the facts.

In the present case, the plaintiffs amended complaint alleges that the plaintiff was an identifiable victim because Turner knew that she was petting his dog and she “was in close proximity to the dog’s teeth.” The trial court noted that “[o]ther than the statement that the plaintiff was in close proximity to the dog’s teeth, there is no other allegation as to the imminency of harm.” The court concluded that “[t]he plaintiff has neither alleged any facts nor offered any evidence to show that [Turner] had any knowledge . . . that the plaintiff was in danger of immediate harm.”

The deposition testimony of Turner can be read in either of two ways. It either shows that the plaintiff was placed in imminent harm by Turner’s actions or failure to act, in failing to control his dog, or that the plaintiff put herself in imminent harm by her own actions. In Turner’s opinion, it was the latter.

There is a difference between the existence of a duty and a violation of that duty. The existence of the duty is a question of law whereas whether there was a breach of that duty is a question of fact. Shore v. Stonington, supra, 187 Conn. 151-52. We have concluded, as a matter of law, that Turner owed a duty to the plaintiff because she was an identifiable person. Whether that duty was violated because he placed her in imminent harm is a question of fact. See Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 171. Because the question of imminent harm is a factual one; see Westport Taxi Service, Inc. v. Westport Transit District, 235 Conn. 1, 26, 664 A.2d 719 (1995); a jury or fact finder would need to assess the credibility and the weight to be given Turner’s testimony.

Deposition testimony often involves opinions and calls into question the credibility of the deponent. “It is . . . well recognized that summary judgment procedure is particularly inappropriate where the inferences which the parties seek to have drawn deal with questions of motive, intent and subjective feelings and reactions.” United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 376, 260 A.2d 596 (1969). Although Turner submitted an affidavit, it did not address any facts relating to the issue of imminent harm. His deposition did address the issue, and for purposes of this opinion, we assume that summary judgment can, in some instances, be supported solely by deposition testimony. Dubay v. Irish, 207 Conn. 518, 534 n.9, 542 A.2d 711 (1988); Collum v. Chapin, supra, 40 Conn. App. 450 n.2. Here, however, the deposition testimony was based on the opinion of Turner as to how the accident happened, and recounts his subjective feelings and reactions. It also deals with Turner’s view of the intent and motive of the plaintiff in approaching the dog. In instances where deposition testimony formed the basis for the granting of summary judgment, it should be noted that often the deposition was not the deposition of the movant for summary judgment, as is true here. Hoskins v. Titan Value Equities Group, Inc., 252 Conn. 789, 793, 749 A.2d 1144 (2000); Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 203-205, 663 A.2d 1001 (1995); H.O.R.S.E. of Connecticut, Inc. v. Washington, 57 Conn. App. 41, 45, 746 A.2d 820, cert. granted on other grounds, 253 Conn. 911, 754 A.2d 161 (2000); Pion v. Southern New England Telephone Co., 44 Conn. App. 657, 658-59, 691 A.2d 1107 (1997). Here, Turner and the other defendants who allegedly share a vicarious liability rely on Turner’s own testimony to establish that no material fact is in dispute.

“It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given their testimony can be appraised.” Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S. Ct. 486, 7 L. Ed. 2d 458 (1962). “[A] summary disposition . . . should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.” Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 624, 64 S. Ct. 724, 88 L. Ed. 967 (1944). Whether the plaintiff can prove that she was placed in imminent harm by Turner depends in part on Turner’s credibility, which can be tested only by his live testimony.

Under the circumstances of this case, we do not agree with the trial court’s conclusion that the plaintiff was not subject to imminent harm. The question is not whether a dog at a parade creates a condition of imminent harm per se, but whether the act or failure to act of Turner in preventing his dog from being in close proximity to the plaintiff created a situation of imminent harm to the plaintiff. Here, the harm caused was not of an unspecified type that could have occurred at any time or at any place in the future or to anyone. We hold that Turner’s motion for summary judgment should not have been granted as to the plaintiffs claims of direct negligence against him as alleged in count four of her amended complaint.

In light of our conclusion that Turner might, after a trial, be found to have breached a duty to keep the plaintiff from suffering imminent harm, the claim for indemnification of the individual defendant Turner by the North Branford defendants in count five of the plaintiffs amended complaint remains viable. General Statutes § 7-308 provides for indemnification by municipalities of firemen who incur liability for damages to person or property caused in the performance of their official duties. Our Supreme Court in Wu v. Fairfield, 204 Conn. 435, 438, 528 A.2d 364 (1987), decided a claim under General Statutes § 7-465, an analogous municipal indemnification statute, and held that any municipal liability must be predicated upon prior findings of individual negligence on the part of the municipal employee. See also Altfeter v. Naugatuck, 53 Conn. App. 791, 799, 732 A.2d 207 (1999) (municipality does not assume liability in first instance). This holding applies equally to a claim under § 7-308. Because the claim for indemnification against the North Branford defendants is derivative of Turner’s liability, the motion for summary judgment by the North Branford defendants as to this claim should also have been denied.

The plaintiffs claims in counts three and six for indemnification pursuant to § 7-308 against the 100th Anniversary Committee defendants must fail because the plaintiff has failed to allege, or offer any proof, establishing an employment relationship between those defendants and Turner. See Wu v. Fairfield, supra, 204 Conn. 438 (holding that municipal liability must be based on prior findings of individual negligence on part of employee and municipality’s employment relationship with that individual). Summary judgment as to those counts was proper.

In several counts, the plaintiff alleges negligence of the North Branford defendants and the 100th Anniversary Committee defendants for their negligence in failing to instruct firemen adequately on the proper use of dogs in a parade and parade assembly area, to supervise the dog properly, to control the dog properly, to warn the plaintiff properly about the dog and to instruct the plaintiff properly about the dog. The plaintiff has not cited any statute that would abrogate the governmental immunity for common-law negligence enjoyed by these defendants; see Williams v. New Haven, 243 Conn. 763, 766-67, 707 A.2d 1251 (1998); and therefore, these claims must fail. Summary judgment therefore properly was granted as to counts seven, ten and eleven.

II

The plaintiff claims next that the trial court improperly determined that the doctrine of governmental immunity precluded her claims alleging strict liability pursuant to § 22-357. We agree with the trial court and affirm its rendition of summary judgment for the defendants as to the plaintiffs claims under § 22-357.

Section 22-357 imposes strict liability on the owner or keeper of any dog that does damage to the body or property of any person. In the present case, the parties do not dispute that Turner is the owner of the dog that bit the plaintiff. The plaintiff alleged claims for strict liability against Turner individually, the municipal defendants and for indemnification by the municipal defendants for the strict liability of Turner. The plaintiff claims that because the statute imposes strict liability, governmental immunity does not apply and, therefore, summary judgment was improper as to these claims. The trial court held that because the defendants are immune from liability and because the legislature has not specifically provided that § 22-357 is an exception to the general rules of governmental immunity, the plaintiffs strict liability claims were barred. We must decide whether the doctrine of governmental immunity bars the plaintiffs claims for strict liability under § 22-357.

“A municipality itself was generally immune from liability for its tortious acts at common law . . . .” Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 165. Governmental immunity may, however, be abrogated by statute. “The state legislature possesses the authority to abrogate any governmental immunity that the common law gives to municipalities.” Ryszkiewicz v. New Britain, 193 Conn. 589, 593, 479 A.2d 793 (1984). The general rule developed in the case law is that a municipality is immune from liability unless the legislature has enacted a statute abrogating that immunity. Williams v. New Haven, supra, 243 Conn. 766-67. “Statutes that abrogate or modify governmental immunity are to be strictly construed. . . . This rule of construction stems from the basic principle that when a statute is in derogation of common law or creates a liability where formerly none existed, it should receive a strict construction and is not to be extended, modified, repealed or enlarged in its scope by the mechanics of construction.” (Citations omitted; internal quotation marks omitted.) Rawling v. New Haven, 206 Conn. 100, 105, 537 A.2d 439 (1988). “The court is to go no faster and no further than the legislature has gone. ... A legislative intention not expressed in some appropriate manner has no legal existence.” (Intemai quotation marks omitted.) Edmundson v. Rivera, 169 Conn. 630, 633, 363 A.2d 1031 (1975).

“The legislature has acted to limit governmental immunity in certain circumstances. For example, in General Statutes § 13a-149, the legislature has provided for municipal liability for property damage or personal injuries caused by defective roads and bridges. The legislature also has set forth general principles of municipal liability and immunity in General Statutes § 52-557n.” Williams v. New Haven, supra, 243 Conn. 767.

Section 52-557n abrogates the common-law rule of governmental immunity and sets forth the circumstances in which a municipality is liable for damages to person and property. These circumstances include the negligent acts or omissions of the political subdivision or its employees or agents, “negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit” and acts which constitute the creation or participation in the creation of a nuisance. General Statutes § 52-557n (a). The section goes on to exclude liability for acts or omissions of any employee or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct and negligent acts that involve the exercise of judgment or discretion. General Statutes § 52-557n (a). The statute further sets forth ten other circumstances in which a municipality shall not be liable for damages to person or property. General Statutes § 52-557n (b).

Section 52-557n fails to mention any exception to the rule of municipal immunity that would allow liability for injuries pursuant to § 22-357. “The legislature’s intent is derived ‘not in what it meant to say, but in what it did say.’ Daily v. New Britain Machine Co., 200 Conn. 562, 571, 512 A.2d 893 (1986).” Lynn v. Haybuster Mfg., Inc., 226 Conn. 282, 290, 627 A.2d 1288 (1993). In the absence of explicit language in § 52-557n modifying the common-law rule of governmental immunity for claims of strict liability pursuant to § 22-357, the statute should not be so construed, and we decline to do so.

The plaintiff cites to no authority, and we are aware of none, to support the claim that § 22-357 was intended to abrogate the doctrine of governmental immunity. Section 22-357 creates a cause of action that did not exist at common law and, therefore, it must be strictly construed. Murphy v. Buonato, 42 Conn. App. 239, 249, 679 A.2d 411 (1996), aff'd, 241 Conn. 319, 696 A.2d 320 (1997). The purpose of § 22-357 was to “abrogate the common-law doctrine of scienter as applied to damage by dogs to persons and property, so that liability of the owner or keeper [does not depend] upon his knowledge of the dog’s ferocity or mischievous propensity . . . .” (Internal quotation marks omitted.) Id., 248. The statute does not provide that governmental immunity shall not be a defense to an action brought under it.

Our Supreme Court’s decision in Squeglia v. Squeg-lia, 234 Conn. 259, 661 A.2d 1007 (1995), is instructive in our analysis of this claim. In that case, the dispositive issue before the court was whether the doctrine of parental immunity barred an action by an unemanci-pated minor against his parent in which strict liability was alleged pursuant to § 22-357. The court concluded that the action was barred. Id., 260; see also Ascuitto v. Farriciello, 244 Conn. 692, 697, 711 A.2d 708 (1998).

In reaching that decision, the court in Squeglia explained that the purpose of the doctrine of parental immunity “is to preserve the integrity and unity of the family and to avoid unnecessarily injecting the machinery of the state into the day-to-day exercise of parental discretion. . . . There is no reason to believe that an action in strict liability would be less disruptive to these interests than any other civil action for personal injuries brought by an unemancipated child against a parent.” (Citations omitted; internal quotation marks omitted.) Squeglia v. Squeglia, supra, 234 Conn. 265-66. Accordingly, the court concluded that the plaintiff was barred by the doctrine of parental immunity from bringing an action in strict liability under § 22-357. Thus, our Supreme Court has determined that circumstances exist that may outweigh the purposes behind the imposition of strict liability under § 22-357.

One purpose of governmental immunity is to avoid injecting monetary claims of the public alleging harm arising out of the day-to-day operation of discretionary municipal functions. Wadsworth v. Middletown, 94 Conn. 435, 440, 109 A. 246 (1920); see also Heigl v. Board of Education, 218 Conn. 1, 6 n.5, 587 A.2d 423 (1991); Burns v. Board of Education, 30 Conn. App. 594, 603-604, 621 A.2d 1350 (1993), rev’d on other grounds, 228 Conn. 640, 638 A.2d 1 (1994). Without express statutory language abrogating the doctrine of governmental immunity in order to allow claims of strict liability under § 22-357, we see no reason to disturb the doctrine. Limited governmental immunity and governmental immunity rest on the principle that governmental acts should be shielded from liability except in discrete instances, whereas strict liability statutes rest on the principle that certain acts, in and of themselves, without proof of anything else, and without proof of any negligence, require liability to arise. Governmental immunity limits liability, and § 22-357 expands and extends liability. The dichotomy between these principles militates against our allowing any further intrusion into the doctrine of governmental immunity. We affirm the judgment of the trial court for the defendants as to counts one, two, three and eight, which concern the plaintiffs claims brought pursuant to § 22-357.

The judgment of the trial court granting the motions for summary judgment as to counts one, two, three, six, seven, eight, ten and eleven is affirmed. The judgment as to the claims in counts four and five is set aside and the case is remanded for further proceedings as to those counts.

In this opinion the other judges concurred.

       The defendants are Rush Turner III (Turner); the North Branford fire department, North Branford Fire Department No. 3 and the town of North Branford (North Branford defendants); and 100th Anniversary Committee, The A.A. Young, Jr., Hose & Ladder Co. No. 1 of Jewett City, the borough of Jewett City and the town of Griswold (100th Anniversary Committee defendants). Rush Turner, Jr., is also a defendant, but because summary judgment was not granted as to him, he is not a party to this appeal.

       The trial court rendered a summary judgment as to ten of the eleven counts of the plaintiffs complaint. The ninth count was based on General Statutes § 22-357 and concerns Rush Turner, Jr., and Rush Turner III. Summary judgment was not granted as to Rush Turner, Jr., but was granted as to Rush Turner III.

       General Statutes § 22-357 provides in relevant part: “If any dog does any damage to either the body or properly of any person, the owner or keeper, or, if the owner or keeper is a minor, the parent or guardian of such minor, shall be liable for such damage, except when such damage has been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog. ...”

         Portions of Turner’s deposition testimony were attached to the defendants’ motions for summary judgment and also to the plaintiffs memoranda opposing the motions.

       Two of the defendants, Linda Coleman and Violet Coleman, were granted summary judgment because they were found to be neither owners nor keepers of the dog under General Statutes § 22-357.

       General Statutes (Rev. to 1995) § 7-308 provides in relevant part: “Each municipality of this state, notwithstanding any inconsistent provisions of law, general, special or local, or any limitation contained in the provisions of any charter, shall pay on behalf of any paid or volunteer fireman . . . all sums which such fireman becomes obligated to pay by reason of liability imposed upon such fireman by law for damages to person or property, if the fireman, at the time of the occurrence, accident, injury or damages complained of, was performing fire duties and if such occurrence, accident, injury or damage was not the result of any wilful or wanton act of such fireman in the discharge of such duties. . . . Governmental immunity shall not be a defense in any action brought under this section. . .

       Turner also attached an affidavit to his motion for summary judgment, stating that he was a volunteer firefighter for North Branford Fire Company No. 3, that on September 17, 1995, he participated in the 1995 Connecticut State Fireman’s Convention Parade in his capacity as a firefighter, that he wore his uniform and that his dog was present with the express permission of his supervisors at North Branford Fire Company No. 3.

       After the defendants’ motions for summary judgment had been granted, the plaintiff filed a motion to reargue and attached an affidavit contradicting Turner’s deposition testimony. The motion was denied, and the plaintiff does not claim an abuse of discretion arising from the denial. See, e.g., Tiber Holding Corp. v. Greenberg, 36 Conn. App. 670, 671, 652 A.2d 1063 (1995).

       Summary judgment was not granted as to the defendant Rush Turner, Jr., as he is not a fireman or municipal employee.

       “The term ‘fire duties’ is defined in [General Statutes] § 7-314 to include: duties while at fires, answering or returning directly from fires, participation in fire drills or parades, or going to and returning directly from fires, drills or parades. For purposes of the term ‘fire duties,’ the statute makes no distinction between ‘fires’ and ‘parades.’ ” Collins v. Milford, 15 Conn. App. 84, 87, 543 A.2d 291 (1988).

       The plaintiff does not allege in her complaint, nor did she before the trial court, that Turner’s conduct involved “malice, wantonness or intent to injure.”
      The plaintiffs claims in her complaint are based on common-law negligence and strict liability under the dog bite statute. Section 22-357 provides for liability upon proof of violation; see Gore v. People’s Savings Bank, 35 Conn. App. 126, 131, 644 A.2d 945 (1994), rev’d on other grounds, 235 Conn. 360, 665 A.2d 1341 (1995) (in cases of strict liability, defendant is liable without fault upon proof of violation of statute); and common-law negligence does not involve malice or wantonness. We limit our discussion to the identifiable person-imminent harm exception, the only one raised by the parties before the trial court and on appeal.

       The complaint alleged that the municipality failed to enforce the law, which might fall within the second exception to governmental immunity, rather than the identifiable person-imminent harm exception. The court, however, discussed the case on the plaintiffs’ terms, although it did “not agree with the characterization that the plaintiffs assign to these allegations.” Evon v. Andrews, supra, 211 Conn. 504.

       The relevant portions of the deposition testimony of Turner are as follows:
      “Q. Let’s turn now to the actual bile of [the plaintiff]. Tell me what happened.
      “A. We were at our staging area. I had Scanner [his dog] with me. He was on his leash. The leash was wrapped around my hand—I mean, I had it wrapped around my hand real tight where he couldn’t go anywhere. We were just standing there minding our own business and, at the time, some other guy from another fire department had a bagel and he was waving the bagel in the air. Scanner wanted to jump at it, but he couldn’t because I had a tight grip on him. Then a female firefighter walked up, made a comment about the dog, took her hands and dug her fingernails in real tight behind his ears like this, and pulled his face up to her face like this and that’s when she got bit.
      “Q. Now, the person who had the bagel, was that someone who knew [the plaintiff]?
      “A. Probably, because they both had the same type of uniforms on.
      “Q. Did [the plaintiff] pet the dog before she—
      “A. No, she didn’t. She didn’t put her hand out. She didn’t ball her hand up in a fist to let him smell her. She just grabbed him.
      * ** *
      “Q. Did you have the leash tightly wrapped around you—
      “A. Yes, I did.
      “Q. Well, let me finish. Did you have the leash tightly wrapped around you when [the plaintiff] was bit?
      “A. Yes, I did.
      “Q. And how long is the leash?
      “A. I’d have to say between six and around this long, maybe—I don’t know how many feet that is. Four or five feet.
      “Q. And how much of the leash is wrapped around your—
      “A. All of it. I have most of it wrapped around my hand and then around my wrist.
      “Q. Did [the plaintiff] talk to you before she bent down?
      “A. No. She just said—she made one comment about the dog. That’s all.
      “Q. What did she say?
      “A. She said the dog was fat.
      “Q. Did [the plaintiff] put out her hand so the dog could sniff her?
      “A. No.

        “Q. Did [the plaintiff] bend down so the dog would come toward her?
      “A. She just bent down. That’s all.
      “Q. Did she make any contact with the dog before she bent down?
      “A. No.
      “Q. And when you say she bent down, just describe that to me. How did she bend down?
      “A. She just got down on both knees, put her face in front of his and yanked him by his ears.
      “Q. Now, when you say she got down on both knees, did she actually kneel or was she squatting?
      “A. She was kneeling.
      “Q. Her knees were touching the ground?
      “A. Yes.
      “Q. So her face was approximately eye level with the dog?
      “A. Yes.
      “Q. And after she bent down, then she grabbed the dog’s ears?
      “A. She grabbed him by his ears, sunk her nails into his ears and just pulled the face. It was just like that, boom, boom. It happened all within a split second. There was nothing I could do.
      “Q. When you say she sunk her nails, did she have long fingernails?
      “A. Yes, she did. It’s kind of ironic, someone having long nails being a firefighter. I’d never seen it before.
      “Q. Was she trying to hurt the dog?
      “[Turner’s Counsel]: Objection.
      “[Plaintiffs Counsel]: You can answer that.
      “A. That I don’t know. I don’t know what her motive was.
      “Q. I mean, did it look like she was trying to—
      “A. It looked like she was trying to provoke the dog.
      “Q. And why did it look like she was trying to provoke the dog?
      “A. To be honest, common sense would tell you and people, know you, don’t go grabbing a dog by the ears and putting your face to his face without balling your fist, letting him sniff you or putting your hand out and let him sniff. Everyone knows that.
      “Q. When you say it looked Hire she was trying to provoke the dog, it looked Hke she was trying to provoke a response from the dog?
      “A. Yes.
      “Q. Some negative response?
      “A. Yes.
      “Q. Did you think the dog would bite her when she grabbed the dog’s ears?
      “A. I don’t know what to think.
      “Q. And can you explain that? Why didn’t you know what to think?
      “A. It just happened too fast. There was nothing I could do. I’m standing up and she’s kneeling.
      “Q. But you had the leash wrapped tightly around your arm, is that right?
      “A. Yes.

        “Q. And why didn’t you pull the dog away when she grabbed the dog’s ears?
      “A. Why didn’t I pull the dog away? She basically had already pulled the dog toward her. There was nothing I could do. What you’re doing is, she’s putting her face in front of the dog. You’re cutting the dog’s vision off because his vision comes like that. And he is feeling pain. He thinks he is being attacked. There was nothing I could do.
      “Q. Do you think that [the plaintiff] was attacking the dog?
      “A. I don’t know what her motives were that day. I don’t know what her motives were. I’d like to know what her motives were.
      “Q. I mean, do you think she wanted to get bit?
      “A. Yeah. To be honest, yes.
      “Q. Now, when she bent down, did she bend down slowly?
      “A. I wasn’t watching her when she bent down. I just saw her when she was on her two knees and then everything happened.
      “Q. Did she have her hands extended when she was bending down?
      “A. Yes, she did.
      “Q. Describe how she extended her arms.
      “A. Okay. She was down like this, she came up, grabbing the dog like that and—boom—pulled his face into her face. I could see if you do it with a poodle, yes, but you just don’t—forget it.
      “Q. So she had her arms fully extended when she first touched the dog?
      “A. She had her arms fully extended and she just grabbed him by the ears. She sunk her nails—because I was watching. It happened so fast. She sunk her nails and pulled and jerked on his head.
      “Q. She had her arms fully extended when she first touched the dog’s ear's, is that right?
      “A. Uh-huh, from the looks of it.
      “Q. And then she pulled the dog toward her. How far was that?
      “A. From here to here.
      “Q. About two feet?
      “A. Two, two and one-half feet maybe. I mean, I really don’t know because it just happened too fast. There was nothing I could do to stop her actions.
      “Q. Okay. Now, after she had pulled tire dog two to two and one-half feet toward her, what happened next?
      “A. He bit her.”

       Several counts of the plaintiffs amended complaint refer to General Statutes § 7-465, but it is unclear whether these counts allege claims pursuant to that statute. We note that to the extent that the plaintiff alleges claims for indemnification pursuant to § 7-465, such claims necessarily fail because that statute specifically excludes “firemen covered under the provisions of section 7-308 . . . .”

       The plaintiff cites General Statutes § 52-557n in her brief but did not allege this statute in her complaint or in her opposition to the defendants’ motions for summary judgment. Accordingly, we do not consider it. See Practice Book § 10-3; see also Williams v. New Haven, supra, 243 Conn. 766; Collum v. Chapin, supra, 40 Conn. App. 453.


source: Caselaw Access Project

author: O’CONNELL, C. J.

license: Public Domain

text:
    SATBIR PAUL ET AL. v. RICHARD M. GORDON ET AL.
    (AC 19881)
    O’Connell, C. X, and Foti and Zarella, Js.

    Submitted on briefs March 2
    officially released July 11, 2000

      Michael A. D’Onofrio filed a brief for the appellants (plaintiffs).

      Michael S. Lynch filed a brief for the appellee (named defendant).

       The listing of judges reflects their seniority status on this court as of the date that the case was submitted.

   Opinion

O’CONNELL, C. J.

This is a legal malpractice action in which the plaintiffs appeal from the summary judgment rendered in favor of the defendant. The sole question is whether expert testimony was necessary in the malpractice action to establish the negligence of the defendant in his handling of the underlying summary process action. We conclude that, under the circumstances of this case, expert testimony is not required, and we therefore reverse the judgment of the trial court.

The following facts and procedural history are necessary for a resolution of this appeal. The defendant is an attorney admitted to practice law in this state, and the plaintiffs were his clients in connection with the negotiation of a lease with an option to buy property located in Bethel. The plaintiffs, who were already occupying the property, had deposited $30,000 toward the purchase price when a dispute arose concerning certain property repairs. In reliance on the defendant’s advice, the plaintiffs stopped paying rent to the landlord-seller, who subsequently commenced a summary process action and served them with a notice to quit possession. The plaintiffs turned the notice over to the defendant, who said that he would “handle it.”

Despite numerous inquiries, the plaintiffs received no further communication from the defendant. The plaintiffs were ultimately evicted from the premises and lost their $30,000 deposit. A subsequent investigation disclosed that a judgment of default for failure to appear had been rendered against the plaintiffs in the summary process action. The defendant never notified the plaintiffs of any court dates or of the judgment rendered against them.

The plaintiffs thereafter commenced a legal malpractice action against the defendant. The plaintiffs did not disclose the names of any expert witnesses whom they intended to call as required by Practice Book § 13-4. Five days before trial was to commence, the court granted the defendant’s motion to preclude expert witnesses. The court also gave the defendant permission to file a motion for summary judgment, which motion it subsequently granted.

The standard for appellate review of a trial court’s decision to grant a motion for summary judgment is well established. Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995). Summary judgment “shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Practice Book § 17-49. “The test is whether a party would be entitled to a directed verdict on the same facts.” (Internal quotation marks omitted.) Haesche v. Kissner, 229 Conn. 213, 217, 640 A.2d 89 (1994), quoting Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 781, 595 A.2d 334 (1991). “In Connecticut, a directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusion than that embodied in the verdict as directed.” United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 380, 260 A.2d 596 (1969).

As a general rule, a plaintiff cannot prevail in a malpractice action in Connecticut unless he presents expert testimony to establish the standard of proper professional skill or care. “The requirement of expert testimony in malpractice cases serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant’s actions in light of that standard.” Davis v. Margolis, 215 Conn. 408, 416, 576 A.2d 489 (1990).

There is an exception to this rule, however, “where there is such an obvious and gross want of care and skill that the neglect is clear even to a lay person.” Id., 416 n.6. This exception has been applied in the context of a medical malpractice case. Shegog v. Zabrecky, 36 Conn. App. 737, 750-51, 654 A.2d 771, cert. denied, 232 Conn. 922, 656 A.2d 670 (1995). Both the Supreme Court and this court have implied, without actually deciding, that this exception also applies in the context of a legal malpractice case. See Davis v. Margolis, supra, 215 Conn. 416 n.6; Pearl v. Nelson, 13 Conn. App. 170, 173, 534 A.2d 1257 (1988) (explaining that “[t]here is no reason for a different rule where legal malpractice is claimed”). We hold that it does so apply and, on the basis of this exception, conclude that no expert testimony was required in the present case.

The defendant was retained by the plaintiffs to represent them in a summary process action and, although he assured them that he would “handle” the matter, he took no further action whatsoever to protect their interests. The plaintiffs allege that, as a consequence, they lost a $30,000 deposit, were evicted from the premises, suffered severe emotional distress and incurred relocation expenses.

We hold that no expert testimony is required to establish legal malpractice in a situation where an action has been brought against a party and judgment by default is rendered against that party in the case because his attorney has allegedly done absolutely nothing to protect him. The defendant’s alleged failure to take any action whatsoever to protect the interests of the plaintiffs is conduct that involves such an obvious and gross want of care and skill that the neglect would be clear even to a layperson. The issue of the defendant’s negligence is sufficiently in dispute to require its submission to a jury without the assistance of expert testimony.

If this case had gone to trial, the defendant would not have been entitled to a directed verdict. Accordingly, he was not entitled to a summary judgment.

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

In this opinion the other judges concurred.

       The plaintiffs in this case are Satbir Paul, Shashi Paul, Kusam Paul, Singh Paul and Baldeu Paul.

       Margaret Dodd Gordon was a codefendant, but the action against her was withdrawn on July 15, 1999. We refer in this opinion to the named defendant, Richard M. Gordon, as the defendant.

       The record is unclear as to whether the plaintiffs gave the defendant the notice to quit or the mesne process in the summary process action. Nevertheless, it is not disputed that whatever process that was served on the plaintiffs was turned over to the defendant and that the defendant had said that he would “handle it.”

       Practice Book § 13-4 (4) provides in relevant part: “[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. ... If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection . . . such expert shall not testify if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party; or (B) will cause undue interference with the orderly progress of trial in the case; or (C) involved bad faith delay of disclosure by the disclosing party. • • ■”

       Practice Book § 17-44 requires that a “party must obtain the judicial authority’s permission to file a motion for summary judgment after the case has been assigned for trial. . . .”


author: PER CURIAM.

text:
    CLOVIS JOHNSON v. COMMISSIONER OF CORRECTION
    (AC 18651)
    O’Connell, C. J., and Spear and Zarella, Js.

    Argued January 20
    officially released July 11, 2000

      Katharine S. Goodbody, special public defender, for the appellant (petitioner).

      Eileen McCarthy Geel, assistant state’s attorney, with whom were James E. Thomas, state’s attorney, and Christopher Alexy, assistant state’s attorney, for the appellee (respondent).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

PER CURIAM.

The petitioner, Clovis Johnson, appeals from the judgment rendered by the habeas court denying his request for certification to appeal to this court following the denial of his petition for a writ of habeas corpus. The petitioner claims that he was denied his constitutional rights to effective assistance of trial counsel as well as counsel who prepared his first habeas petition.

The following facts and procedural history are relevant to the resolution of this appeal. On July 17, 1992, following the commencement of jury selection, the petitioner pleaded guilty, pursuant to the Alford? doctrine, to the crimes of manslaughter in the first degree in violation of General Statutes § 53a-55a, carrying a pistol without a permit in violation of General Statutes § 29-35, and altering or removing an identification mark from a firearm in violation of General Statutes § 29-36. The petitioner was sentenced to a total effective sentence of twenty-seven years. In 1994, the petitioner, with the assistance of counsel, filed a petition for a writ of habeas corpus alleging that he did not understand the English language at the time he entered his guilty pleas and, therefore, did not understand that he would be sentenced to a term of twenty-seven years of incarceration. The habeas court dismissed this petition on July 27, 1995.

The petitioner filed a subsequent petition for a writ of habeas corpus alleging ineffective assistance of trial counsel and of counsel at his first habeas hearing. Specifically, the petitioner alleged that his trial counsel rendered ineffective assistance by advising him that the eyewitness he wanted to call to testify at trial was not credible and that he should, therefore, plead guilty to reduced charges. The petitioner further alleged that his first habeas counsel rendered ineffective assistance by failing to investigate and interview a favorable eyewitness for the defense, and by failing to raise this issue in the first habeas petition.

The habeas court conducted a factual review of the petitioner’s claim and concluded that the petitioner had failed to show that counsel’s representation fell below an objective standard of reasonableness. In fact, the habeas court indicated that it agreed with the observation of the sentencing court that “[the petitioner] made a wise choice. He would have gotten more time than twenty-seven years if he was convicted of murder—a very strong likelihood of conviction.”

We have fully reviewed the record and briefs and considered the oral arguments. We conclude that the petitioner has failed to make a substantial showing that he has been denied a state or federal constitutional right and, further, that he has failed to sustain his burden of persuasion that the denial of certification to appeal was a clear abuse of discretion or that an injustice has been done. See Simms v. Warden, 230 Conn. 608, 612, 646 A.2d 126 (1994); Simms v. Warden, 229 Conn. 178, 189, 640 A.2d 601 (1994); Walker v. Commissioner of Correction, 38 Conn. App. 99, 100, 659 A.2d 195, cert. denied, 234 Conn. 920, 661 A.2d 100 (1995); see also Lozada v. Deeds, 498 U.S. 430, 431-32, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).

We conclude that the habeas court had before it sufficient evidence to find as it did and that it did not abuse its discretion in denying the petition for certification to appeal.

The appeal is dismissed.

       The habeas petition was denied with the exception that the matter was remanded to the trial court for an appropriate correction of the petitioner’s sentence consistent with the stated plea bargain.

        North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

         The petitioner alleged that he believed that the plea agreement called for a recommended sentence of twenty-seven months instead of twenty-seven years.

       The habeas court further concluded that the proceedings rendered moot any claim regarding the failure of the petitioner’s first habeas counsel to investigate and interview an alleged eyewitness, and the failure to raise this issue in the first habeas petition.


author: DALY, J.

text:
    MICHELE GILBERT v. MIDDLESEX HOSPITAL ET AL.
    (AC 19172)
    Mihalakos, Pellegrino and Daly, Js.

      Submitted on briefs April 5
    officially released July 11, 2000

      Ikechukwu Umeugo filed a brief for the appellant (plaintiff).

      Donna R. Zito filed a brief for the appellees (defendants).
   Opinion

DALY, J.

The plaintiff, Michele Gilbert, appeals from the judgment rendered by the trial court following a jury verdict in favor of the defendants, Robert A. Yordan and Middlesex Obstetrical and Gynecological Associates, P.C. (Middlesex Obstetrical). The plaintiff claims that the court improperly (1) failed to instruct the jury on the doctrine of res ipsa loquitur, (2) denied her motion for summary judgment and (3) instructed the jury on the use of common sense. The plaintiff also claims that the evidence does not support the jury’s verdict. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. The plaintiff filed a seven count complaint dated April 1, 1996, against Middlesex Hospital and Middlesex Obstetrical, and against Robert A. Yordan, Kenneth L. Eckhart, Deborah A. Mueller and Donald E. Miller, as associates and physician employees of Middlesex Obstetrical. The plaintiff claimed that on August 1, 1995, Yordan performed a procedure known as an episiotomy on the plaintiff and delivered the plaintiff’s daughter. The plaintiff alleged that Yordan left a sponge in her vagina after the delivery of her baby and that this sponge was not removed until August 16,1995. The complaint alleged negligence against all defendants and res ipsa loquitur against Mid-dlesex Hospital, Yordan and Middlesex Obstetrical. The plaintiff filed a motion for summaiy judgment dated July 11, 1996.

The plaintiff filed a revised complaint, dated August 5, 1997, containing five counts alleging negligence on the part of the aforesaid defendants. In the revised complaint, there were no allegations of res ipsa loquitur. On November 24, 1998, the plaintiff withdrew the complaint against the named defendant Middlesex Hospital. On December 10, 1998, the court denied the plaintiffs motion for summary judgment. On December 15, 1998, the plaintiff withdrew the complaint against Miller, Eck-hart and Mueller. The case proceeded to trial against the remaining defendants, Yordan and Middlesex Obstetrical. The jury returned a verdict in favor of Yor-dan and Middlesex Obstetrical. The plaintiff then filed the present appeal.

I

The plaintiff first claims that the court improperly failed to instruct the jury on the doctrine of res ipsa loquitur. “Whether the doctrine of res ipsa loquitur applies in a particular case is a question of law over which our review is plenary. Giles v. New Haven, 228 Conn. 441, 447, 636 A.2d 1335 (1994).” Barretta v. Otis Elevator Co., 242 Conn. 169, 171, 698 A.2d 810 (1997).

We initially note that the plaintiff has failed to comply with Practice Book § 67-4 (d) (l) in that she has failed to provide us with a copy of a request to charge on res ipsa loquitur or an exception to the charge given by the court. We conclude, however, that a charge on res ipsa loquitur was not warranted based on the pleadings and evidence admitted at trial.

“A complaint must fairly put the defendant on notice of the claims of negligence against him. . . . The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise. . . . Only those issues raised by the plaintiffs in the latest complaint can be tried before the jury.” (Citations omitted.) Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 557-58, 525 A.2d 954 (1987). As stated previously, the plaintiffs revised complaint dated August 5, 1997, omitted any allegations concerning the doctrine of res ipsa loquitur.

At trial, the plaintiff introduced direct evidence through the testimony of Ralph Epstein, a physician, concerning Yordan’s alleged acts of negligence. “[A] res ipsa loquitur instruction is not appropriate where the plaintiff is not relying solely on circumstantial evidence, but instead alleges and introduces into evidence specific acts of negligence by the defendant.” Pineau v. Home Depot, Inc., 45 Conn. App. 248, 258, 695 A.2d 14 (1997), appeal dismissed, 245 Conn. 422, 713 A.2d 825 (1998) . “The doctrine of res ipsa loquitur, literally the thing speaks for itself, permits a jury to infer negligence when no direct evidence of negligence has been introduced.” (Internal quotation marks omitted.) Barretta v. Otis Elevator Co., supra, 242 Conn. 173.

Because the amended complaint contained no allegations concerning res ipsa loquitur, and because the plaintiff offered direct evidence of the defendants’ negligence at trial, an instruction on res ipsa loquitur was not warranted.

II

The plaintiff next claims that the court improperly denied her motion for summary judgment. We note, however, that “absent exceptional circumstances, a denial of a motion for summary judgment is not appeal-able where a full trial on the merits produces a verdict against the moving party.” (Internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 541 n.7, 590 A.2d 914 (1991). From a review of the record, we conclude that this case does not represent an exceptional circumstance that would justify reviewing on appeal a denial of a motion for summary judgment.

III

The plaintiff next claims that the court improperly instructed the jury on the use of common sense. The plaintiff has failed to comply with Practice Book § 67-4 (d) (2) in that she has not provided us with a copy of the relevant portions of the charge and any exceptions taken to the charge. Because the plaintiff has failed to satisfy her burden of providing an adequate record for review, we decline to review this claim.* *

IV

The plaintiffs final claim is that the evidence does not reasonably support the jury’s verdict. We disagree.

“[I]t is not the function of this court to sit as the seventh juror when we review the sufficiency of the evidence . . . rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury’s verdict .... Purzycki v. Fairfield, 244 Conn. 101, 112-13, 708 A.2d 937 (1998). In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable.” (Emphasis in original; internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 534, 733 A.2d 197 (1999).

Although the plaintiff presented the testimony of Epstein, a medical expert, in support of her claim of negligence, the defendants presented two medical expert witnesses, Mary Jane Minkin and Benson J. Horowitz, to counter the plaintiffs claim. Minkin and Horowitz each testified that reasonably prudent physicians can perform careful examinations following a vaginal delivery and repair of an episiotomy and nevertheless fail to detect a piece of gauze used in the surgical procedure. The trier may rely more heavily on the testimony of one expert rather than the testimony of another. 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 118c, p. 1146.

The judgment is affirmed.

In this opinion the other judges concurred.

       Practice Book § 67-4 (d) (1) provides: “When error is claimed in the trial court’s refusal to charge the jury as requested, the party claiming such error shall include in the brief of that party or the appendix thereto a verbatim statement of the relevant portions of the charge as requested and as given by the court and any relevant exceptions to the charge as given and shall recite in narrative form any evidence which it is claimed would entitle that party to the charge as requested, with appropriate references to the page or pages of the transcript.”

       Practice Book § 67-4 (d) (2) provides in relevant part: “When error is claimed in the charge to the jury, the brief or appendix shall include a verbatim statement of all relevant portions of the charge and all relevant exceptions to the charge. . . . Evidence relevant to the claimed error shall be recited in narrative form with appropriate references to the page or pages of the transcript.”

       Even if we were to review this claim, the plaintiff would not prevail. During closing argument, the plaintiffs counsel stated: “Although the judge is going to emphasize and point out that your focus will be on the testimony and evidence in this case, but remember you are not confined precisely to the testimony and evidence in this case. You may make reasonable . . . inferences from the testimony and evidence based upon your common sense and reason. You possess that and you can do that. Nobody can stop you from doing so.”
      During the court’s charge, the court stated that it “[had] to correct some of the impressions left during argument” and instructed the jury, “You may not use your common sense to decide whether or not there was negligence.” The court further stated: “I told you earlier you don’t leave your common sense at the door and you’re going to hear how your common sense can be used in terms of evaluating the testimony, but in medical negligence cases, afinding of liability and negligence mustbe based on expert testimony. You can use your common sense in evaluating the testimony of the expert but you cannot substitute your common sense for the necessary expert testimony. ... So despite plaintiff counsel’s argument that you can find that based on common sense, you cannot. You need medical testimony that you find credible and that you accept by a fair preponderance of the evidence.”
      The court’s charge was a correct statement of the law. See Barrett v. Danbury Hospital, 232 Conn. 242, 252, 654 A.2d 748 (1995); Shegog v. Zabrecky, 36 Conn. App. 737, 745-46, 654 A.2d 771, cert. denied, 232 Conn. 922, 656 A.2d 670 (1995).

       The plaintiff did not file a motion to set aside the verdict.


text:
    PATRICK MARSHALL ET AL. v. JOSEPH SOFFER
    (AC 19147)
    O’Connell, C. J., and Zarella and Dupont, Js.

      Argued February 14
    officially released July 11, 2000

      Roger Sullivan, for the appellant (defendant).

      Elton B. Harvey III, for the appellees (plaintiffs).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

DUPONT, J.

This is an appeal from the judgment rendered by the trial court in favor of the plaintiffs, Patrick Marshall and Deborah Marshall, quieting title in them to a parcel of property located on Damascus Road in the town of Branford, and ordering that the defendant, Joseph Soffer, remove a fence and other material placed on the property and restore the area to its prior condition, “insomuch as that is reasonably possible, by the said removal and the removal of any dead brush, limbs or other debris.”

The defendant claims that the court should have (1) concluded that the plaintiffs’ deed to the parcel was rendered ambiguous because a starting monument of the deed had been lost, (2) applied the doctrine of acquiescence in a boundary and (3) concluded that the defendant acquired title to the property by adverse possession. The issue on appeal is whether the judgment of the court that quieted title in the plaintiffs was reached by a legally correct methodology, supported by the facts in the record. We affirm the judgment of the trial court.

The plaintiffs’ complaint sought a determination of the common boundary line between their property and that of the defendant, and to quiet title to the land area that lies between the two disputed boundary lines. The facts that follow were either found by the court or are not in dispute. The plaintiffs’ property was originally part of a farm owned by the defendant’s family. The property that is now owned by the plaintiffs was carved out of the property comprising the farm, and was first conveyed by Louis Soffer to Jacob Soffer by warranty deed in 1952. The description in that warranty deed, which is the same as the description in the plaintiffs’ deed, was plotted by the plaintiffs’ surveyor on a map. That map was introduced into evidence as exhibit A. The map is not referenced, however, in any relevant deed and is not recorded. It differs from a 1967 map, which was introduced into evidence as exhibit E. The 1967 map was prepared for the defendant and recorded in the land records of the town of Branford in 1968 without being referenced to any deed or to any grantor or grantee. The map is not signed and bears the following notation: “Lines as agreed on by Soffer and Huzar.”

From 1962 to 1972, the property now owned by the plaintiffs was owned by John Huzar and Anna Huzar. In 1972, John Huzar and Anna Huzar conveyed the property to Andrew Huzar and Edith Huzar. The latter Huzars conveyed the property to the plaintiffs’ predecessor in title in 1979. The plaintiffs acquired the property in 1986. The description in the plaintiffs’ deed is the same description used in the deeds of each of the predecessors in title. The outline of the property on the 1967 map does not follow the legal description of the warranty deed of the plaintiffs. The property now owned by the defendant was described in a 1957 conveyance, which description excepted the parcel now owned by the plaintiffs. The excepted parcel in that 1957 deed is particularly described, using the same description as is contained in the deed to the plaintiffs. Thus, no deed description in the chain of title of either the plaintiffs or the defendant matches that of the 1967 map.

The court found that there was no recorded boundary line agreement that referred to the 1967 map or to the notation on it, and that the plaintiffs had no notice of that map. The court concluded that (1) there was no evidence to support the defendant’s special defense of adverse possession, (2) the 1967 map did not supersede the description in the deeds in the plaintiffs’ chain of title, (3) the descriptions in the plaintiffs’ deed and in the deeds of their predecessors in title are not ambiguous and (4) the boundary as claimed by the defendant has not been established by acquiescence.

The ambiguity claimed by the defendant is that the northwest corner of the property, which is the place of beginning as described in the plaintiffs’ deed and in the deeds of their predecessors in title, could not be located on the ground at the time the plaintiffs took title. The defendant also claims that the street line of Damascus Road (formerly Stony Creek Road) was undetermined in 1952 when the plaintiffs’ property was first conveyed by Louis Soffer to Jacob Soffer.

The defendant argues that the northwest corner was evidenced by a stone wall but that when exhibit A was prepared, the northwest corner as a starting point had become uncertain because the stone wall had fluctuated in location over the years. The defendant concedes that the words used in the description of the plaintiffs’ deed are unambiguous and that the deed is not ambiguous on its face, but claims that the deed contains a latent ambiguity because its starting point eventually became uncertain when compared to the actual land that the deed purported to convey. In other words, it is the defendant’s claim that when it is no longer possible to replicate a starting point on the ground to correspond with a deed description that begins with that starting point, the deed becomes ambiguous because it contains references to monuments that no longer exist or that have changed. The defendant agrees, however, that “[t]he physical disappearance of a monument does not terminate its status as a boundary marker, provided that its former location can be ascertained through extrinsic evidence.” (Internal quotation marks omitted.) Koen- nicke v. Maiorano, 43 Conn. App. 1, 12, 682 A.2d 1046 (1996).

The defendant claims that the court made no effort to reconstruct the location of the stone wall as a monument or the location of Damascus Road but, instead, improperly concluded that the deed description as shown on exhibit A controlled the resolution of this case. The defendant claims that the deed description shown on exhibit A is fundamentally flawed because it uses the end of the existing stone wall as the northwest comer and starting point for the deed description.

The court disregarded the 1967 map because it was not indexed in the land records as being in the chain of title of either the plaintiffs or the defendant. The court credited the testimony of the plaintiffs’ expert who had prepared exhibit A and concluded that the original description in the deed of Louis Soffer to Jacob Soffer, the same property now owned by the plaintiffs, could be replicated or found on the ground.

The 1967 map was not referenced in any deed, and no deed description after that date in the chain of title of either the plaintiffs or the defendant was amended to reflect any change in the boundaries of land conveyed. We do not agree with the defendant that a map that is not indexed as being in the chain of title of either the plaintiffs or the defendant should alter the plaintiffs’ deeded description without actual or constructive notice of the map or without an agreement recorded in the land records.

According to the plaintiffs, the 1967 map is equivalent to an unrecorded instrument because it does not involve their chain of title. Although maps that are part of the deeds to which they refer may be filed in a special index in a town clerk’s office, the filing is not sufficient to charge a title holder with notice of the map unless the terms of a relevant recorded deed point to the map. See Kulmacz v. Milas, 108 Conn. 538, 541-42, 144 A. 32 (1928). There is no notice of the contents of a map except if the terms of a recorded deed refer to the map. Powers v. Olson, 252 Conn. 98, 108, 742 A.2d 799 (2000).

In determining the location of a boundary line expressed in a deed, if the description is clear and unambiguous, it governs and the actual intent of the parties is irrelevant. Koennicke v. Maiorano, supra, 43 Conn. App. 10; see also F. & AK, Inc. v. Sleeper, 161 Conn. 505, 510, 289 A.2d 905 (1971). The deed in the present case begins with the words “at the Northwest corner of land herein at its intersection of land now or formerly of Katherine Link Knapp . . . .” The description does not begin with words relating to a stone wall, and only mentions a stone wall to describe the end of the westerly boundary at Knapp’s land and the northerly boundary “along said stone wall to the point or place of beginning.”

A latent ambiguity arises from extraneous or collateral facts that make the meaning of a deed uncertain although its language is clear and unambiguous on its face. Heyman Associates No. 1 v. Ins. Co. of Pennsylvania, 231 Conn. 756, 782, 653 A.2d 122 (1995). A latent ambiguity can exist if the distances given in a deed do not “strike land” of a landowner as mentioned in the deed; F. & AK, Inc. v. Sleeper, supra, 161 Conn. 510-11; or if a discrepancy as to the direction of one of the four borders exists; Apostles of the Sacred Heart v. Curott, 187 Conn. 591, 598, 448 A.2d 157 (1982); or if the description is too general, such as one fixing the location of a boundary as “the top of the mountain”; Young Men’s Christian Assn. v. Zemel Bros., Inc., 171 Conn. 310, 311, 370 A.2d 937 (1976); or if a deed refers to a map that is ambiguous or unclear. Lake Garda Improvement Assn. v. Battistoni, 160 Conn. 503, 510-11, 280 A.2d 877 (1971). In the event a latent ambiguity is found, the ambiguous language in the grant is ordinarily construed against the grantor and in favor of the grantee, and “the grantee may adopt the boundary most favorable to him.” Id., 514. In the present case, the court correctly concluded that no such latent ambiguity exists and that the plaintiffs’ deed description was not ambiguous.

There is nothing ambiguous about the deed description in the present case. In 1986 when the plaintiffs acquired title, without notice of the 1967 map, they could have followed easily the deed description on the ground. The stone wall runs south to north along property “now or formerly of Katherine Link Knapp.” The boundaries are described in terms of the abutting land owners and the road, not a stone wall. Adjacent land may be a monument if the boundary of it is fixed. See Staff v. Hawkins, 135 Conn. 316, 319, 64 A.2d 176 (1949).

The court correctly concluded that the plaintiffs’ deed was not ambiguous and that the 1967 map did not amend or supersede the deed’s description.

The defendant next claims that the plaintiffs or their predecessors in title acquiesced in the boundary as established in the 1967 map. Acquiescence in the use and development of an area by a landowner is defined as a consent to the boundary as claimed by an adjoining owner and can estop the acquiescing landowner from pursuing a claim of ownership. See DelBuono v. Brown Boat Works, Inc., 45 Conn. App. 524, 533, 696 A.2d 1271, cert. denied, 243 Conn. 906, 701 A.2d 328 (1997). The acquiescence must occur under circumstances that indicate an assent to such a use. Id.

The defendant introduced applications for building permits to show that a predecessor in title of the plaintiffs had acquiesced in the boundary as depicted on the 1967 map. The court found that the distances shown on the building permits did not conform to the distances described in the plaintiffs’ deed or in the 1967 map. Because of the contradicting dimensions, the court discounted the evidence. We conclude that the record does not establish that the plaintiffs or their predecessors in title agreed that the disputed land could be used by the defendant or that the boundaries were those of the 1967 map, rather than those in their deed description.

The last claim of the defendant is that he acquired title to the disputed land by adverse possession. The court found that the defendant produced no evidence to support this claim. The court also noted that all of the witnesses indicated that neither the defendant nor his agents or employees ever conducted any activity or business on the disputed land or treated it as the defendant’s property. There was evidence, however, that the plaintiffs had treated portions of the area as their own. The defendant claims that some witnesses testified that “the line of occupation” (the disputed area) had been observed by the plaintiffs’ predecessors in title, but admitted that the land was overgrown and that there was little evidence of cultivation. The plaintiffs’ immediate predecessor in title testified that while he owned the land, he had deposited debris there, but that the defendant and his predecessors had not cultivated, graded or trimmed anything on the land. The defendant paid property tax to the town of Branford on the disputed land, but that is only one relevant factor to be considered in determining whether the defendant acquired the land by adverse possession and does not, by itself, require reversal of the court’s judgment. We hold that the court properly concluded that the defendant had not proven by clear and convincing evidence that he had ousted the plaintiffs or their predecessors of exclusive possession for fifteen years by open, visible and adverse acts. See Clark v. Drska, 1 Conn. App. 481, 485, 473 A.2d 325 (1984).

The judgment is affirmed.

In this opinion the other judges concurred.

       While the appeal was pending, the plaintiffs filed a motion in the trial court to terminate the stay of execution of the orders. The court granted the motion as to the removal of the fence only, ordering that it be removed within thirty days.

       The defendant alleged in a special defense that he had acquired title to the disputed land by adverse possession.

       The plaintiffs do not claim that adverse possession is inappropriately raised as a special defense rather than by way of a counterclaim or cross com-' plaint.

       The court’s conclusions that the description in the plaintiffs’ deed is not ambiguous and that the 1967 map does not supersede that description or render the deed description ambiguous will be discussed together.

       The deed description of the land now owned by the plaintiffs has remained the same since 1952 and is as follows: “[A]U that certain piece or parcel of land beginning at the Northwest comer of land herein at its intersection of land now or formerly of Katherine Link Knapp; thence Easterly along Stony Creek Road, ninety (90) feet; thence Southerly at right angles to Stony Creek Road along land now or formerly of Louis Soffer, one hundred fifty (150) feet; thence Westerly at a right angle to the last described line along land now or formerly of Louis Soffer to a stone wall separating land herein from land now or formerly of Katherine Link Knapp; thence Northeasterly along said stone wall to the point or place of beginning, bounded: NORTHERLY: by Stony Creek Road; EASTERLY: by land now or formerly of Louis Soffer; SOUTHERLY: by land now or formerly of Louis Soffer; and WESTERLY: by land now or formerly of Katherine Link Knapp.”