author: BEACH, J.

text:
    MARK HAMMOND v. CITY OF BRIDGEPORT ET AL.
    (AC 33491)
    DiPentima, C. J., and Beach and Foti, Js.

      Argued May 30
    officially released December 18, 2012

      Frank A. May, with whom, on the brief, was Bridget M. Ciarlo, for the appellants (defendants).

      Richard H. Greene, for the appellee (plaintiff).
   Opinion

BEACH, J.

The defendants, the city of Bridgeport (city) and its insurer Berkley Administrators of Connecticut, Inc., appeal from the finding and award of the workers’ compensation commissioner for the fourth district (commissioner) rendered in favor of the plaintiff, Mark Hammond, on his discriminatory discharge claim. On appeal, the defendants claim that the commissioner erred in (1) finding that the city discriminated against the plaintiff, (2) denying their “motion to reopen award, consider newly discovered evidence, reconsider/reissue finding and award and for a new trial/ formal” with attachments, (3) denying proposed corrections in their motion to correct the finding and award, (4) deciding issues and ordering damages beyond the scope of the issue submitted and agreed to by the parties and (5) interpreting and applying alleged rights under a collective bargaining agreement. We affirm the commissioner’s decision.

Following a hearing on July 7, 2010, at which the plaintiff was the only witness to testify, the commissioner issued his decision on April 20, 2011, in which he set forth the following relevant facts. The plaintiff regularly worked for the city’s roadway division in the public works department. While working in the sanitation division of the city’s public works department, the plaintiff injured his right shoulder on December 10, 2007. He was temporarily totally disabled as of February 28, 2008, the date of the first of three surgeries that were paid for by the workers’ compensation policy of the city, and temporarily partially disabled as of April 15, 2009. The city sent the plaintiff a letter dated February 23, 2009, in which Jodie L. Paul, the labor relations officer for the city, informed the plaintiff: “Our records indicate that you have been on leave from your position as a Maintainer I (Grade I) with the [c]ity . . . for over twelve (12) months, specifically since December 10, 2007. Please know that your collective bargaining agreement contains a twelve (12) month leave limitation. If you are presently unable or unwilling to return to the position you held prior to the commencement of your leave on a full-time basis, you will be deemed to have resigned from your position effective Friday, March 6, 2009.” The plaintiff was not, however, on a leave of absence from December 10,2007, through January 30, 2008. The city did not inform the plaintiff that his leave of absence had been calculated from December 10, 2007, until the city sent him the aforementioned letter dated February 23, 2009. The city’s leave of absence policy is contained in article 37 of its collective bargaining agreement with the plaintiffs union, which provides in relevant part: “The department head, with the approval of the [d]irector of [l]abor [Relations, may grant an employee a leave of absence without pay for a period not to exceed one year, except that a six (6) month hardship extension may be granted with the approval of the [d]irector of [l]abor [Relations.” Paul sent the plaintiff another letter dated April 30, 2009, granting the plaintiffs request for a six month extension of a leave of absence and informing him that the extension would expire on June 12, 2009, and that if he was unable or unwilling to return to his full duty position as of June 16,2009, he would be deemed to have voluntarily resigned. Paul then sent the plaintiff a letter dated June 16,2009, to inform him that he was deemed to have voluntarily resigned from his position of “Maintainer I (Grade I)” with the city as a result of the one year leave limitation and six month extension he was granted pursuant to the collective bargaining agreement. The plaintiff received temporary total disability benefits from January 31, 2008, until he was terminated from employment on June 15, 2009.

The commissioner applied a three-pronged test in order to determine whether the city had violated General Statutes § 31-290a (a), which provides: “No employer who is subject to the provisions of this chapter shall discharge, or cause to be discharged, or in any manner discriminate against any employee because the employee has filed a claim for workers’ compensation benefits or otherwise exercised the rights afforded to him pursuant to the provisions of this chapter.” The commissioner discussed the burden shifting test, which is stated in Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 53-54, 578 A.2d 1054 (1990). “The plaintiff bears the initial burden of proving by the preponderance of the evidence a prima facie case of discrimination. ... In order to meet this burden, the plaintiff must present evidence that gives rise to an inference of unlawful discrimination. ... If the plaintiff meets this initial burden, the burden then shifts to the defendant to rebut the presumption of discrimination by producing evidence of a legitimate, nondiscriminatory reason for its actions.... If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. . . . The plaintiff then must satisfy her burden of persuading the fact-finder that she was the victim of discrimination either directly by persuading the court [or jury] that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” (Citations omitted; internal quotation marks omitted.) Id.

The commissioner found that the plaintiff met his burden of proving by the preponderance of the evidence a prima facie case of discrimination. The commissioner found that “[the plaintiff] was accused by a supervisor of faking his shoulder injury and, despite being . . . given a light duty assignment in the [r]oadway division until his February 28,2008 surgery, [he] often performed full duty tasks such as shoveling sand.” The commissioner then found that the city satisfied its burden under the second prong by introducing its collective bargaining agreement and the letters from Paul into evidence, because the agreement and letters demonstrated a legitimate, nondiscriminatory reason for the city’s actions. As to the third prong under Ford, the commissioner found that the plaintiff demonstrated that the city’s contention that the termination of employment procedure was uniformly applied to all employees lacked credibility and set forth the following as support for his finding: “The fact that the [c]ity attempted to begin the [twelve] month leave of absence on the day of injury despite the claimant having continued to work for almost three months afterward, and [t]he fact that the [c]ity attempted to apply its neutral [twelve] month termination requirement more than [fourteen] months after it contended the [twelve] month leave of absence began, and [t]he fact that the [c]ity attempted to apply its neutral [six] month extension policy over the next [six] weeks rather than [six] months.” Accordingly, the commissioner concluded that the city discriminated against the plaintiff in violation of § 31-290a. The commissioner ordered the city to reinstate the plaintiff to his last full-time position in the roadway division of the department of public works and to pay the plaintiff back wages from the date of termination to the date of the decision. The commissioner further ordered the city to reinstate to the plaintiff all sick pay, vacation pay, pension contributions and pension service from the date of termination to the date of the decision. Finally, the commissioner awarded the plaintiff reasonable attorney’s fees to be paid by the city.

On May 4, 2011, the defendants filed a motion to correct the finding and award, in which it proposed sixteen corrections and sixty-four additional findings. On the same date, the defendants also filed a “motion to reopen award, consider newly discovered evidence, reconsider/reissue finding and award and for a new trial/formal” (motion to open the award and for a new trial). They sought to have the commissioner consider job descriptions for the relevant time period, a physical demand analysis of the maintainer position in the roadway division and a decision dated November 22, 2010, of the state board of mediation and arbitration dismissing the plaintiffs grievance concerning his termination by the city. The commissioner ordered eight corrections and denied the remainder of the defendants’ motion to correct. The commissioner also denied in its entirety the defendants’ motion to open the award and for a new trial. The defendants have appealed from the commissioner’s April 20, 2011 finding and award, the May 9,2011 ruling denying the defendants’ motion to correct and the May 9, 2011 ruling denying the defendants’ motion to open the award and for a new trial.

I

The defendants first claim that the commissioner erred in concluding that the city discriminated against the plaintiff in violation of § 31-290a. We disagree.

We first set forth the standard of review. A claim of employment discrimination brought pursuant to § 31-290a is evaluated under the Ford burden shifting analysis, as cited previously. “To establish a prima facie case of discrimination under § 31-290a, the plaintiff must show that [he] was exercising a right afforded [him] under the [Workers’ Compensation Act (act), General Statutes § 31-275 et seq.] and that the defendant discriminated against [him] for exercising that right. . . . [T]he plaintiff must show a causal connection between exercising [his] rights under the act and the alleged discrimination [he] suffered. Implicit in this requirement is a showing that the defendant knew or was otherwise aware that the plaintiff had exercised [his] rights under the act. . . . [T]o establish [a] prima facie case of discrimination, the plaintiff must first present sufficient evidence . . . that is, evidence sufficient to permit a rational trier of fact to find [ 1 ] that [he] engaged in protected [activity] ... [2] that the employer was aware of this activity, [3] that the employer took adverse action against the plaintiff, and [4] that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action . . . .” (Internal quotation marks omitted.) Martin v. Westport, 108 Conn. App. 710, 717-18, 950 A.2d 19 (2008).

“A causal connection may be established either indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by a defendant.” (Emphasis omitted; internal quotation marks omitted.) Id., 719.

“The plaintiffs must present some evidence from which a trier of fact could infer that the employer discharged or discriminated against the employees because they had exercised their rights under the [act]. . . . Without some proof of an improper motive, [a plaintiffs] case must fail.” (Citation omitted; internal quotation marks omitted.) Erisoty v. Merrow Machine Co., 34 Conn. App. 708, 711, 643 A.2d 898, cert. denied, 231 Conn. 908, 648 A.2d 151 (1994). “[Section] 31-290a . . . does not require an employer to retain an employee unable to perform his or her work simply because that inability resulted from a work related injury or illness.” Chiaia v. Pepperidge Farm, Inc., 24 Conn. App. 362, 366, 588 A.2d 652, cert. denied, 219 Conn. 907, 593 A.2d 133 (1991). “[I]t is the plaintiffs ultimate burden to prove that the defendant intentionally discriminated against [him] . . . .” (Internal quotation marks omitted.) Mele v. Hartford, 270 Conn. 751, 768-69, 855 A.2d 196 (2004).

“[B]ecause the commissioner is essentially fulfilling the role of a trial court in adjudicating § 31-290a claims, the commissioner’s findings of fact and conclusions of law, like those of a trial court, should be reviewed on appeal under . . . the clearly erroneous standard.

“[U]nder the fact-bound nature of determinations regarding what actions, as a matter of law, may constitute employment discrimination, a clearly erroneous standard [is] most appropriate. . . . Under such a standard, [a] finding ... is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citations omitted; internal quotation marks omitted.) Id., 767.

In the present case, it is undisputed that the plaintiff established three of the four elements of a prima facie case of discrimination: the plaintiff engaged in the protected activity of filing a workers’ compensation claim; the defendant was aware of the filing; and the employer took adverse action against the plaintiff, namely, termination from employment with the city. The defendants argue that the commissioner’s conclusion that there was a causal connection between the plaintiff’s exercise of his right to workers’ compensation benefits and his termination by the city was clearly erroneous. The commissioner cited as support for his finding that the plaintiff proved discrimination that the plaintiff was accused by a supervisor of faking his shoulder injury and despite being given a light duty assignment in the roadway division until his February 28, 2008 surgery, he often performed full duty tasks such as shoveling sand.

There was evidence to support the finding that there was a causal connection between the exercise of the protected activity and the adverse employment action. The plaintiff testified that his supervisor in the sanitation division told him that the plaintiff was “faking [his] injury and he would get to the bottom of it.” The plaintiff additionally testified that when he worked, between the times of his injury and his surgery, his duties included “[s]hoveling sand from a mason’s dump into a fireman’s fifty gallon drum” and that “[he] was not going to refuse any kind of work because they were looking to get rid of [him].” The commissioner expressly found the plaintiff credible and persuasive.

“It [is] the commissioner’s function to find the facts and determine the credibility of witnesses . . . .” (Internal quotation marks omitted.) Testone v. C. R. Gibson Co., 114 Conn. App. 210, 222, 969 A.2d 179, cert. denied, 292 Conn. 914, 973 A.2d 663 (2009). In Valdes v. Yankee Casting Co., 94 Conn. App. 140, 891 A.2d 994 (2006), in upholding the workers’ compensation commissioner’s ruling that the plaintiff established a prima facie case pursuant to § 31-290a, the court reasoned that the commissioner found that the defendant employer’s vice president “stated that he was tired of the plaintiffs absences and problems with his knee. As noted, it is not the role of this court to retry the case.” Id., 146-46.

The commissioner’s finding of the existence of a causal connection between the plaintiffs exercise of his right to workers’ compensation benefits and his termination by the city was not clearly erroneous. The plaintiff was the only witness to testify, and the commissioner found his testimony credible. He testified that he was injured when he was lifting trash cans in the sanitation division, and he reported his injury to his supervisor. He stated that following the injury, “it was punishment . . . that they took me out of lines and signs and put me back down there [in the roadway division] because I had gotten hurt in sanitation. . . . I was in lines and signs prior to my injury. When I got hurt, they were a little upset at me because I went and got hurt. They took me out of lines and signs and put me [in] roadway . . . .” The plaintiff further stated that while in the roadway division, his job duties included shoveling sand from a mason’s dump into a fireman’s fifty gallon drum and that despite the repetitive lifting required for such tasks, he “was not going to refuse any kind of work because they were looking to get rid of [him].”

The defendants argue that the record does not support the commissioner’s finding that the city’s argument that the collective bargaining agreement was uniformly applied to all employees lacked credibility. As mentioned previously, the commissioner cited three grounds for his finding: “The fact that the [c]ity attempted to begin the [twelve] month leave of absence on the day of injury despite the [plaintiff] having continued to work for almost three months afterward, and [t]he fact that the [c]ity attempted to apply its neutral [twelve] month termination requirement more than [fourteen] months after it contended the [twelve] month leave of absence began, and [t]he fact that the [c]ity attempted to apply its neutral [six] month extension policy over the next [six] weeks rather than [six] months.” The defendants assert that the fact that the city incorrectly calculated the plaintiffs leave of absence from the date of his injury does not support a finding of discriminatory intent; rather, it demonstrates only that a clerical mistake was made and that the city accepted the workers’ compensation claim of the plaintiff as compensable.

The commissioner found that the plaintiff satisfied his burden to show that the reason for termination advanced by the city was not credible. First, the city calculated the twelve month leave of absence from the date of injury, December 10, 2007, instead of from the date the plaintiff actually stopped working, roughly two months later. Second, the city attempted to apply the twelve month termination requirement more than fourteen months after it contended the twelve month leave of absence began. The city calculated that the leave began on December 10, 2007, yet it did not inform the plaintiff that his leave of absence had been so calculated until February 23, 2009, the date of the city’s letter. Third, the city attempted to apply its neutral six month policy over the next six weeks rather than six months.

From these underlying facts, it was not unreasonable for the commissioner to infer a causal connection, particularly in light of the plaintiffs testimony, which the commissioner credited, that the city was trying to “get rid of [him].” The defendants argue that the events at issue were a result of an innocent mistake in calculation despite the persistent repetition. Although the supposition of an innocent mistake may have been reasonable, the commissioner found to the contrary, and the evidence before the commissioner was sufficient to satisfy a prima facie showing of a causal connection between the required animus and the termination. Under the Ford analysis, the third step is satisfied when a prima facie case has been established and the employer’s proffered reason is found to be pretextual.

II

The defendants next claim that the commissioner erred in denying their motion to open the award and for a new trial. Specifically, the defendants claim that the commissioner erred “in reaching a decision without holding a hearing, and in exercising his discretion with respect to the [m]otion ... on the papers themselves.” We disagree.

The defendants sought to submit to the court a decision of the state board of mediation and arbitration dated November 22, 2010, determining that the plaintiff was a probationary employee at the time of his injury and thus had no rights under the collective bargaining agreement, including a right to a leave of absence or a temporary modified duty assignment. They also sought to offer full job descriptions of the plaintiffs positions that were in effect at the time of the plaintiff’s injury, in order to show that the plaintiff physically could not have performed the duties of these jobs, as well as a physical demand analysis on the maintainer positions in the roadway division conducted six months before the plaintiffs injury, which described the physical demands required of the plaintiffs position held at the time of his injury.

We review the defendants’ claim under an abuse of discretion standard. See Dzienkiewicz v. Dept. of Correction, 291 Conn. 214, 220, 967 A.2d 1183 (2009) (noting previous Connecticut Supreme Court case that applied abuse of discretion standard to decision of workers’ compensation commissioner to open award to allow new evidence); Krol v. A. V. Tuchy, Inc., 135 Conn. App. 854, 860, 44 A.3d 185 (2012) (“[t]he decision to open an award is within the discretion of the commissioner” [internal quotation marks omitted]); Davies v. Jezek, 123 Conn. App. 555, 564, 3 A.3d 112 (2010) (standard of review on claims of new trial reviewed under abuse of discretion standard). “An abuse of discretion means a ruling made on untenable grounds.” Farrell v. Bass, 90 Conn. App. 804, 810, 879 A.2d 516 (2005).

“While a workers’ compensation award may, under the appropriate circumstances, be opened, the decision to do so and to modify the award is within the sound discretion of the commissioner. . . . The commissioner must deny the motion [to open] unless further hearing would produce evidence of such character and force that it would be likely to cause a different result. . . . In Meadow v. Winchester Repeating Arms Co., [134 Conn. 269, 57 A.2d 138 (1948)] the court stated that [a] party to a compensation case is not entitled to try his case piecemeal, to present a part of the evidence reasonably available to him and then, if he loses, have a rehearing to offer testimony he might as well have presented at the original hearing. . . . Where an issue has been fairly litigated, with proof offered by both parties, a claimant should not be entitled to a further hearing to introduce cumulative evidence, unless its character or force be such that it would be likely to produce a different result. . . .

“The test by which the commissioner determines whether to open a claim is whether the new evidence [is] sufficient to show that an injustice had been done by his award and that a different result would probably be reached on a new hearing. ... As our Supreme Court pointed out in Meadow, the action of a compensation commissioner upon a motion to open his award for the purpose of hearing further evidence is like that of a court upon a motion for a new trial. ... In Besade v. Interstate Security Services, [212 Conn. 441, 452, 562 A.2d 1086 (1989)], the court specifically held that a claimant seeking to open a workers’ compensation proceeding must establish the following by a preponderance of the evidence: (1) the proffered evidence is newly discovered, such that it could not have been discovered earlier by the exercise of due diligence; (2) it would be material on a new trial; (3) it is not merely cumulative; and (4) it is likely to produce a different result in a new trial. Just as the decision whether to grant a new trial rests within the discretion of the trial court . . . the decision whether to open a compensation hearing and to admit additional evidence rests very largely within the discretion of the commissioner. . . . Importantly, it is the [movant] who bears the burden of showing that there is new evidence that is likely to produce a different result.” (Citations omitted; internal quotation marks omitted.) Tutsky v. YMCA of Greenwich, 28 Conn. App. 536, 541-43, 612 A.2d 1222 (1992).

We have found no authority holding that the commissioner was required to hold a hearing before deciding the defendants’ motion. Section 31-290a provides that a hearing shall be held to hear the complaint, but does not expressly require any further hearing. The legislature knows how to create a right to a hearing, as it has done regarding the complaint; it has not created a right to a hearing for a motion to open a finding and award. There is no claim that the parties were prevented from advancing their positions by submitting written materials and briefs.

The defendants’ contention that the commissioner erred in denying their motion to open the award and for a new trial is without merit. The decision of the state board of mediation and arbitration is not germane, and would not compel a different result, because § 31-290a provides rights to employees independent of those under the collective bargaining agreement. See Genovese v. Gallo Wine Merchants, Inc., 226 Conn. 475, 487, 628 A.2d 946 (1993) (holding that adverse determination in arbitration proceeding not entitled to preclusive effect on plaintiffs cause of action under § 31-290a); cf. Baldracchi v. Pratt & Whitney Aircraft Division, 814 F.2d 102, 105 (2d Cir. 1987), cert. denied, 486 U.S. 1054, 108 S. Ct. 2819, 100 L. Ed. 2d 920 (1988). Additionally, the defendants failed to demonstrate by a preponderance of the evidence that the job descriptions and physical demand analysis “could not have been discovered earlier by the exercise of due diligence . . . .” (Internal quotation marks omitted.) Besade v. Interstate Security Services, supra, 212 Conn. 452. They offer no reason as to why due diligence would not have yielded those documents. The commissioner further could have found that the newly proffered evidence would not change the result. Accordingly, the defendants failed to satisfy their burden of showing that the commissioner abused his discretion.

Ill

The defendants next claim that the commissioner erred in not granting the motion to correct in its entirety. We disagree.

“It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony. . . . We will not change the finding of the commissioner unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed. ... It [is] the commissioner’s function to find the facts and determine the credibility of witnesses . . . and a fact is not admitted or undisputed merely because it is uncontradicted. ... A material fact is one that will affect the outcome of the case. . . . Thus, a motion to correct is properly denied when the additional findings sought by the movant would not change the outcome of the case.” (Citation omitted; internal quotation marks omitted.) Krol v. A.V. Tuchy, Inc., supra, 135 Conn. App. 863.

The defendants claim that the commissioner improperly denied proposed corrections, which “related to the [c]ommissioner’s conclusion that the [city] violated § 31-290a and to the [c]ommissioner’s order regarding reinstatement of the plaintiff.” The defendants seek to retry the case, which is not appropriate in the context of a motion to correct. Because we have determined that the commissioner’s findings are not clearly erroneous, we conclude that the commissioner did not abuse his discretion when he denied corrections proposed by the defendants.

IV

The defendants next claim that the commissioner erred in deciding issues and ordering damages beyond the scope of issues submitted and agreed to by the parties. The defendants claim that “[t]he commissioner clarified on the record during the course of the formal hearing that the sole issue to be addressed would be whether the [city] had discriminatorily discharged the plaintiff and that the issue of damages was to be addressed at a later date, if necessary,” but that the commissioner ordered damages in his finding and award.

The defendants point to a discussion at the hearing on the plaintiffs workers’ compensation claim in which the commissioner stated that he did not “think” that a discussion of damages was “necessary right now,” and that the “issue ... is solely whether [the plaintiff] was discharged justly or not.” During the course of the hearing, however, the plaintiff presented evidence as to the amount of damages he suffered, without objection. There was no express order forbidding the discussion of damages at the hearing. The commissioner had evidence before him regarding damages and did not deprive the defendants of their due process rights.

V

The defendants finally claim that the commissioner erred by interpreting and applying alleged rights under the collective bargaining agreement. Specifically, the defendants claim that the commissioner exceeded his statutory authority in interpreting the collective bargaining agreement in that he found that the plaintiff was a member of the union and that the city’s leave of absence policy is contained in article 37 of the collective bargaining agreement. We disagree.

“[B]ecause the commissioner is essentially fulfilling the role of a trial court in adjudicating § 31-290a claims, the commissioner’s findings of fact and conclusions of law, like those of a trial court, should be reviewed on appeal under .... the clearly erroneous standard.” Mele v. Hartford, supra, 270 Conn. 767.

The collective bargaining agreement was submitted by the defendants and accepted by the commissioner as a full exhibit. The commissioner considered the agreement, insofar as the defendants presented it, as neutrally applied to the plaintiff in the context of his claim under § 31-290a. The commissioner did not decide rights or obligations under the agreement, but rather accepted it as evidence of the standard policy in effect regarding the termination of an employee’s employment after a leave of absence.

The decision of the workers’ compensation commissioner is affirmed.

In this opinion the other judges concurred.

       On May 9, 2011, the commissioner ordered eight corrections to the finding and award issued on April 20, 2011. The facts as set forth in this opinion incorporate those corrections.
      In his finding and award issued on April 20,2011, the commissioner stated that “[t]he [plaintiff] testified to the following:” and set forth paragraphs “a” through “m.” Under the heading “WHEREFORE, UPON ALL THE EVIDENCE BEFORE ME, I AM SATISFIED, CONCLUDE AND FIND THAT,” the commissioner stated: “The [plaintiff] is credible and persuasive.” We inteipret the commissioner’s finding and award as finding as fact the testimony of the plaintiff set forth therein.

       Apparently, an employee who was absent from work because of a work-related injury, and presumably receiving workers’ compensation benefits, was considered administratively to be on a leave of absence without pay.

       According to the commissioner’s findings, the plaintiff “received temporary total disability benefits from January 31, 2008, until he was terminated from employment on June 15,2009,” and was “given a light duty assignment in the [r]oadway division until his February 28, 2008 surgery . . . .” This apparent discrepancy is not explained.

       Because the commissioner found a violation of § 31-290a, he found it unnecessaiy to reach the merits of the plaintiffs claim pursuant to General Statutes § 31-313, which imposes a duty on an employer to provide suitable work to an injured or disabled employee if such work is available.

       Before reaching the merits of the defendants’ claims, we must decide whether this appeal is properly before us. Section 31-290a (b) provides for a direct appeal to this court from the commissioner’s decision. We asked the parties to submit supplemental briefs on the issue of whether this appeal was taken from a final judgment and thus whether we have subject matter jurisdiction in light of Szudora v. Fairfield, 214 Conn. 552, 573 A.2d 1 (1990), despite the failure of the commissioner to make specific findings as to damage amounts owed prior to the appeal. Both parties responded that the further proceedings regarding damages will not require the exercise of independent judgment, but rather are ministerial in light of Szudora.

      “It is axiomatic that appellate review of disputed claims of law and fact ordinarily must await the rendering of a final judgment by the compensation review division. . . . The finality of the decision of the review division is called into question in this case because of the review division’s order of a remand for further administrative proceedings. The test that determines whether such a decision is a final judgment turns on the scope of the proceedings on remand: if such further proceedings are merely ministerial, the decision is an appealable final judgment, but if further proceedings will require the exercise of independent judgment or discretion and the taking of additional evidence, the appeal is premature and must be dismissed.” (Citations omitted.) Id., 556.
      There is a final judgment here because, as the parties agree, all that remains for the commissioner is the ministerial task of calculating damages based on available, undisputed information. That task will require no exercise of discretion on the part of the commissioner.
      Additionally, the award of attorney’s fees in an amount to be determined does not render the decision on the merits not final for appeal purposes because an award for attorney’s fees is analyzed separately. See Paranteau v. DeVita, 208 Conn. 515, 522-23, 544 A.2d 634 (1988) (“decisions on the merits and those on attorney’s fees will be treated separately, giving clear guidance as to when an appeal on the merits must be taken”). Therefore, we conclude that the decision of the commissioner was a final judgment and that this appeal is properly before us.

       In light of the volume of materials presented to commissioners and the congested dockets, we see no compelling reason to impose the need for a hearing “in person.” Nothing prevents a commissioner from scheduling such a hearing in his or her discretion.

       The defendants assert: “A party may offer new evidence even if the evidence was available at the time of the original trial/formal, so long as the party has not intentionally withheld the evidence. See Meadow v. Winchester Repeating Arms Co., supra, 134 Conn. 274.” In Meadow, the court held that although new evidence, specifically new testimony from witnesses, was not cumulative, it would not have changed the result and thus the commissioner did not abuse his discretion in denying the claimant’s motion to open. Id., 276-76. Although our Supreme Court in Meadow stated: “[M]ere inadvertence on [the claimant’s] part, mere negligence, without intentional withholding of evidence, particularly where there is no more than technical prejudice to the adverse party, should not necessarily debar him of his rights, and despite these circumstances a commissioner in the exercise of his discretion might be justified in opening an award. No definite rule can be formulated . . . (emphasis added) id., 274; it specifically held in Besade v. Interstate Security Services, supra, 212 Conn. 452, that a claimant who wants to open a compensation proceeding must demonstrate that the new evidence could not have been discovered through due diligence.

       The commissioner, as noted previously, decided only the categories of damages to be paid. The defendants indicated in their supplemental brief to this court that the calculation of damages would be a ministerial exercise.


source: Caselaw Access Project

author: GRUENDEL, J.

license: Public Domain

text:
    BRUCE ZIRINSKY v. CARNEGIE HILL CAPITAL ASSET MANAGEMENT, LLC, ET AL.
    (AC 33412)
    Gruendel, Bear and Espinosa, Js.

      Argued September 18
    officially released December 25, 2012

      Robert M. Shields, Jr., with whom was Wesley W. Horton, for the appellants (defendants).

      William I. Haslun II, with whom, on the brief, was Carol J. Faherty, for the appellee (plaintiff).
   Opinion

GRUENDEL, J.

The defendants, Carnegie Hill Capital Asset Management, LLC (Carnegie), Michael Jamison and Janice Jamison, appeal from the judgment of the trial court in this easement dispute between neighbors. They claim that the court improperly concluded that (1) the easement in question precluded the plaintiff, Bruce Zirinisky, from planting only those trees in the easement area that blocked their access to an abutting park and playground area and (2) the play system erected in the easement area by the defendants is a permanent structure prohibited under the terms of the easement. We affirm in part and reverse in part the judgment of the trial court.

The relevant facts are undisputed. The plaintiff owns real property known as 17 Brookside Park in Greenwich (servient estate). Carnegie owns real property known as 116 Brookside Drive in Greenwich (dominant estate), which abuts the plaintiffs property. On May 31, 1996, the plaintiffs predecessors in title, David Peeler and Deborah Peeler, executed a written agreement granting an easement over the servient estate to the defendants’ predecessors in title, Fred J. Epstein and Kathy Candel Epstein (easement). That written agreement was filed on the Greenwich land records on June 12, 1995. The easement described therein consists of an area of 5346 feet located on the easterly portion of the servient estate adjacent to the defendants’ property. The easement provides in relevant part that “ [wjhereas Peeler has agreed, for the consideration of one ($1.00) dollar to grant Epstein, his heirs, successors and assigns an exclusive and perpetual [tjenement to use a portion of Peeler’s property. Now therefore . . . Peeler hereby grants to Epstein the following easement:

“1. Epstein shall have an exclusive and perpetual easement to use that portion of Peeler’s property which is shown on the Map entitled ‘Map Showing Easement Area To Be Granted To Frederick J. & Kathy C. Epstein Across the Property Of David & Deborah Peeler Greenwich, Conn.’, said Map being filed in the Office of the Town Clerk of Greenwich simultaneously with this Agreement, said area being bounded as described in Schedule A attached hereto, hereinafter the ‘Easement Property.’
“2. Said Easement Property may be used by Epstein for any lawful purpose, including, but not limited to landscaping and maintaining the grounds and Epstein agrees to maintain the Easement Property in a neat and landscaped condition. Epstein agrees that no construction of any permanent structure may be erected on the Easement Property.
“3. Epstein shall maintain liability insurance for the use of the Easement Property and shall hold Peeler harmless from any and all losses, claims or suits involving the Easement Property, unless due to the negligence or intentional acts of Peeler.
“4. The terms of this Agreement shall run with the land and shall be binding upon the parties hereto, their heirs, successors and assigns and is intended to benefit and be appurtenant to the property owned by Epstein and referenced above.”

In its memorandum of decision, the court found that “[t]he map referred to in the first paragraph of the easement agreement was recorded in the Greenwich land records on June 12, 1995, as map no. 7036. . . . The map shows the boundaries of both the [dominant and servient estates], the location of the easement within the [servient estate] as well as the location of the residences and outbuildings on both properties. The map also shows an area marked ‘Reserved For Park and Playground,’ located to the south of the [dominant estate] and to the east of the [servient estate]. The owners of both properties apparently have the right to use the ‘Park and Playground’ area.” (Citation omitted.)

The plaintiff acquired title to the servient estate on June 24,2003; the defendants acquired title to the dominant estate on December 5,2003. The parties purchased their respective properties subject to the provisions of the easement. Approximately one year later, the present dispute arose when the defendants erected a large play system over part of the easement area. As the court recounted: “In the fall of 2004, Michael Jamison asked the plaintiffs permission for a delivery vehicle to use the plaintiffs driveway to make a delivery to [his] residence. The plaintiff granted permission without inquiring as to the nature of the proposed delivery. Thereafter, a truck arrived and workmen proceeded to erect a ‘Monster Double Whammy’ play system partially on the [defendants’] property and partially on the easement area. The play system, which the [defendants] purchased from Rainbow Play Systems, Inc., consisted of swings, slides, ladders and towers. According to the manufacturer’s catalogue . . . the base unit of the play system weighs 1759 pounds. The catalogue describes the base unit as follows: ‘The Monster Castle is built like a tank.’ . . . Photographs of the system installed by the [defendants] . . . show that their installation is at least twice the size of the base unit shown in the catalogue. Page 193 of the same catalogue states that many of the components of the play system were included in a ‘lifetime warranty’ and that the remaining components were guaranteed for five years. . . .

“The installation of the play system surprised and disturbed the plaintiff. However, he made little or no effort to contact the [defendants] until March 17, 2005, when he directed his attorney to write a letter to the [defendants] asserting that the play system was placed within the easement area in violation of the prohibition against permanent structures. . . . Within two months of that letter, the [defendants] left one or two notes at the plaintiffs home offering to discuss the plaintiffs concerns regarding the play system and leaving a contact number. . . . After four months, the plaintiff telephoned the [defendants]. However, because he called on a solemn religious holiday observed by the [defendants], no meaningful conversation took place at that time. Neither side made any further efforts to engage in a dialogue concerning the play system.

“In early 2006, the [defendants] undertook a major renovation/reconstruction of the residence on [their] property. Because of the construction work, maintenance of the easement property was neglected for several months. In late 2006, the plaintiff decided to install additional trees on his property to screen the play system and the [defendants’] backyard from his view. He did not have the boundaries of the easement area staked by a surveyor. Rather, he claimed that he worked with employees of a tree nursery in a good faith attempt to plant the trees along the boundary of the easement area. The plaintiff spent approximately $88,000 for the acquisition and installation of the new trees. He estimated that about 20 percent of this cost was incurred in order to screen the play system from his sight. After the trees were planted, the defendants retained a surveyor who determined that approximately six of the new trees (spruces with trunk diameters of six to eight inches) were planted within the easement area. . . .

“In April, 2007, the plaintiff brought this action against the defendants claiming that the erection of the play system within the easement violated the prohibition against permanent structures. In the first count of his complaint, the plaintiff requests an injunction ordering the removal of the play system from the easement area. In the second, third and fourth counts, the plaintiff claims damages for trespass, damages for misuse of the easement and damages for overburdening the easement. . . . The defendants’ answer admitted the essential factual allegations of the plaintiffs complaint but denied the legal conclusions with respect to violation of the easement and trespass. [The defendants] also filed a counterclaim alleging . . . that the planting of spruce trees within the easement area constituted a trespass on [their] exclusive right to maintain landscaping within the easement area and . . . that the planting of the spruce trees interferes with [their] use of the easement . . . and . . . requesting injunctive relief.”

A court trial followed on January 25, 2011, at which time the parties stipulated that the play system was a structure but disagreed as to whether it was a permanent one. After hearing evidence from the parties and at their request, the court on March 29, 2011, visited the plaintiffs property and viewed both the defendants’ play system and the trees planted by the plaintiff in the easement area. In its subsequent memorandum of decision, the court concluded that, on the facts of this case, “the play system is, in fact, a permanent structure erected in violation of the terms of the easement.” It therefore granted an injunction “requiring the defendants to remove the play system from the easement area within a reasonable time.” The court further determined that three of the six trees planted by the plaintiff in the easement area “created an effective barrier to the defendants’ access over the easement to reach the reserved park and playground area lying to the south of [their] property,” which constituted an unreasonable use of the easement. Accordingly, the court concluded that the defendants were entitled to injunctive relief on their counterclaim requiring the plaintiff to remove those three trees from the easement area. From that judgment, the defendants appeal.

Before considering the defendants’ specific claims, we note that “[a]n easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement.” (Internal quotation marks omitted.) Celentano v. Rocque, 282 Conn. 645, 660, 923 A.2d 709 (2007). “Except as limited by the terms of the servitude . . . the holder of an easement ... is entitled to use the servient estate in a manner that is reasonably necessary for the convenient enjoyment of the servitude.” 1 Restatement (Third), Property, Servitudes § 4.10, p. 592 (2000). Likewise, “[e]xcept as limited by the terms of the servitude . . . the holder of the servient estate is entitled to make any use of the servient estate that does not unreasonably interfere with enjoyment of the servitude.” Id., § 4.9, p. 581; see also American Brass Co. v. Serra, 104 Conn. 139, 150, 132 A. 565 (1926) (“[t]he owners of the servient tract have by law all the rights and benefits of ownership consistent with the existence of the easement, and the exercise of such rights is not an adverse or hostile act which gives the owner of the dominant tract a right of action therefor”).

“Easements are classified as either easements appurtenant or easements in gross. . . . Two distinct estates are involved in an easement appurtenant: the dominant to which the easement belongs and the servient upon which the obligation rests. ... An easement appurtenant must be of benefit to the dominant estate but the servient estate need not be adjacent to the dominant estate. ... An easement in gross is one which does not benefit the possessor of any tract of land in his use of it as such possessor. ... An easement in gross belongs to the owner of it independently of his ownership or possession of any specific land. Therefore, in contrast to an easement appurtenant, its ownership may be described as being personal to the owner of it.” (Citations omitted; internal quotation marks omitted.) Il Giardino, LLC v. Belle Haven Land Co., 254 Conn. 502, 512, 757 A.2d 1103 (2000). “An easement appurtenant lives with the land. It is a parasite which cannot exist without a particular parcel of realty. An appurtenant easement is incapable of existence separate and apart from the particular land to which it is annexed. . . . [Bjecause of the incorporeal nature of an easement appurtenant, its owner cannot be disseized or otherwise ousted of it; he can only be disturbed or obstructed in its enjoyment.” (Internal quotation marks omitted.) Hyde Road Development, LLC v. Pumpkin Associates, LLC, 130 Conn. App. 120, 125, 21 A.3d 945 (2011). It is undisputed that the present case involves an easement appurtenant, as expressly indicated in the deeded easement itself.

I

The defendants first contend that the planting of six large trees inside the easement area violates the terms of the easement. As a result, they claim that the court incorrectly determined that the plaintiff must remove only those three trees that blocked their access to the abutting park and playground area. We agree.

This court recently observed that “review of the court’s conclusion that [certain] plantings violated . . . easement rights involves a mixed question of fact and law. [S]o-cailed mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense. . . . [Such questions require] plenary review by this court unfettered by the clearly erroneous standard. . . . When legal conclusions of the trial court are challenged on appeal, we must decide whether [those] . . . conclusions are legally and logically correct and find support in the facts that appear in the record.” (Internal quotation marks omitted.) D’Appollonio v. Griffo-Brandao, 138 Conn. App. 304, 323-24, 53 A.3d 1013 (2012).

It is well established that “[i]n construing a deed, a court must consider the language and terms of the instrument as a whole. . . . Our basic rule of construction is that recognition will be given to the expressed intention of the parties to a deed or other conveyance, and that it shall, if possible, be so construed as to effectuate the intent of the parties. ... In arriving at the intent expressed ... in the language used, however, it is always admissible to consider the situation of the parties and the circumstances connected with the transaction, and every part of the writing should be considered with the help of that evidence. . . . The construction of a deed in order to ascertain the intent expressed in the deed presents a question of law and requires consideration of all its relevant provisions in the fight of the surrounding circumstances. . . . Thus, if the meaning of the language contained in a deed or conveyance is not clear, the trial court is bound to consider any relevant extrinsic evidence presented by the parties for the purpose of clarifying the ambiguity. . . . Finally, our review of the trial court’s construction of the instrument is plenary.” (Citations omitted; internal quotation marks omitted.) Il Giardino, LLC v. Belle Haven Land Co., supra, 254 Conn. 510-11.

Relevant to our inquiry is paragraph two of the easement, which provides: “Said Easement Property may be used by Epstein for any lawful purpose, including, but not limited to landscaping and maintaining the grounds and Epstein agrees to maintain the Easement Property in a neat and landscaped condition. Epstein agrees that no construction of any permanent structure may be erected on the Easement Property.” By its plain language, the grant contained therein is vast. It grants the dominant estate holder the right to use the easement area “for any lawful purpose . . . .’’It contains no restriction on that grant, save for the prohibition of permanent structures.

An easement is an instrument that “carves out specific uses for the servitude beneficiary.” 1 Restatement (Third), supra, § 4.19, comment (c), p. 682. In the normal case, the easement specifically delineates the limited bounds of permitted use. See, e.g., Celentano v. Rocque, supra, 282 Conn. 659 n.9 (granting “a drainage easement and right to grade and construct a water retention basin over and upon ... [a] portion of [the] property . . . for the purpose of constructing, grading and maintaining a detention basin thereon and for all other purposes connected therewith to detain the flow of storm waters”); Dean v. Zoning Commission, 96 Conn. App. 561, 567 n.8, 901 A.2d 681 (granting “the right, privilege, and authority to perpetually maintain a parking lot for up to ten [10] parking spaces for the use of the premises abutting the premises below described to the north, only if required so that the premises to the north will comply with the off-street parking regulations of, the City of Norwalk, over the following described property: ‘Parking spaces No. 9 through 18 inclusive on assessor’s lots 20 & 21 on that certain [map] . . . which map is to be filed simultaneously with the recording of this easement’ ”), cert. denied, 280 Conn. 937, 910 A.2d 217 (2006). For that reason, our Supreme Court has explained that an easement “generally authorizes limited uses of the burdened property for a particular purpose.” (Emphasis added; internal quotation marks omitted.) Il Giardino, LLC v. Belle Haven Land Co., supra, 264 Conn. 528, citing 1 Restatement (Third), supra, § 1.2, comment (d), pp. 14-15. That general rule is inapposite in this case, as the easement does not set forth specific, limited uses. Rather, it provides that the servitude beneficiary is entitled to use the easement area “for any lawful purpose” so long as it does not involve the erection of a permanent structure.

In their posttrial brief, the defendants argued that the six large spruce trees planted by the plaintiff in the easement area occupied “a considerable amount of the easement space both laterally and vertically,” which interfered with the defendants’ use thereof. In their appellate brief, the defendants argue that, given the considerable grant in favor of the dominant estate, the trees interfere with numerous lawful activities within the easement area, such as “sunbathing or . . . playing volleyball or . . . placing picnic tables or . . . growing vegetables or flowers needing sun exposure . . . .” We agree. Indeed, Janice Jamison testified at trial that the trees interfere with the ability of her children to run freely around the easement area.

In its memorandum of decision, the court concluded that three of the spruce trees “created an effective barrier to the defendants’ access over the easement to reach the reserved park and playground area lying to the south of [their] property.” Accordingly, it granted injunctive relief requiring the plaintiff to remove those trees. At the same time, the court also found that the “evidence does not show that the [remaining three] trees planted by the plaintiff unreasonably interfere with the defendants’ use of the easement area.” The record belies that determination. The deeded easement specifically authorizes the defendants to engage in “any lawful purpose” of the easement area that did not involve the construction of a permanent structure. The vast grant to engage in “any lawful purpose” encompasses a myriad of activities on the easement area, such as those proffered by the defendants. Moreover, the defendants introduced evidence that the trees planted by the plaintiff interfered with the ability of the Jami-sons’ children to run around the area freely.

Furthermore, it bears emphasis that the easement granted the defendants the right to engage in “any lawful purpose, including, but not limited to landscaping and maintaining the grounds . . . .” (Emphasis added.) The planting of trees is a quintessential example of landscaping. Because an easement obligates the servi-ent estate holder not to interfere with the uses authorized by the easement; Celentano v. Rocque, supra, 282 Conn. 660; the plaintiffs conduct in planting six large spruce trees in the easement area plainly interfered with the defendants’ right to landscape and maintain the area, as specifically provided for in the deeded easement. In light of the foregoing, we conclude that the court improperly determined that only those trees planted in the easement area that blocked access to an abutting park and playground area violate the deeded easement.

II

The defendants also claim that the court improperly concluded that the play system erected in the easement area is a permanent structure prohibited under the terms of the easement. The parties do not dispute that the deeded easement prohibits the construction of any permanent structure on the easement area. Nor do they dispute the fact that the play system is a structure and that it is massive in size. The sole question before us is whether the court properly found that it is permanent in nature. On the facts of this case, we agree with that determination.

As the court stated in its memorandum of decision, no Connecticut court has construed the phrase “permanent structure” in the present context. Like any construction of a conveyance instrument, proper interpretation of that phrase requires consideration of all provisions of the deeded easement. See Wykeham Rise, LLC v. Federer, 305 Conn. 448, 457, 52 A.3d 702 (2012) (every part of writing should be considered in interpreting deed). As we already noted, the easement here contains a straightforward proscription mandating that the dominant estate holder shall not construct “any permanent structure ... on the [e]asement [property.”

“To ascertain the commonly approved usage of a word, we look to the dictionary definition of the term.” (Internal quotation marks omitted.) Stone-Krete Construction, Inc. v. Eder, 280 Conn. 672, 678, 911 A.2d 300 (2006); see also D’Appollonio v. Griffo-Brandao, supra, 138 Conn. App. 324 (dictionary definitions used to interpret terms of easement). “Permanent” is defined in one dictionary as “[t]o continue indefinitely”; Ballentine’s Law Dictionary (3d Ed. 1969); and in another as “continuing or enduring (as in the same state, status, place) without fundamental or marked change: not subject to fluctuation or alteration: fixed or intended to be fixed: lasting, stable.” Webster’s Third New International Dictionary (2002). Similarly, this court in LePage Homes, Inc. v. Planning & Zoning Commission, 74 Conn. App. 340, 349, 812 A.2d 156 (2002), relied on Black’s Law Dictionary (6th Ed. 1990) for its definition of permanent as “[c]ontinuing or enduring in the same state, status, place, or the like, without fundamental or marked change, not subject to fluctuation, or alteration, fixed or intended to be fixed; lasting; abiding; stable; not temporary or transient. . . . Generally opposed in law to temporary, but not always meaning perpetual.” (Internal quotation marks omitted.) See also Johnson v. Charles William Palomba Co., 114 Conn. 108, 114, 167 A. 902 (1932) (permanent structure is one “not . . . apt to change”); American Brass Co. v. Serra, supra, 104 Conn. 149 (fence at issue not permanent structure because could be removed with hardly any trouble or expense and is so slight). Furthermore, one sibling jurisdiction has defined the term “permanent structure” as “one which may not be readily remedied, removed, or abated at a reasonable expense, or one of a durable character evidently intended to last indefinitely, costing as much to alter as to build it in the first instance.” Dugan v. Long, 234 Ky. 511, 515, 28 S.W.2d 765 (1930).

In our view, the appropriate analytical approach to the question presented is a fact specific one. The foregoing definitions persuade us that a court, in considering whether a given structure is permanent in nature, should evaluate a variety of factors, including — but not limited to — the structure’s size, weight, durability, stability and mobility. Only after weighing such factors may a court render a factual finding as to whether the structure at issue is a permanent one.

The court in the present case found that there was evidence before it “of the durable character of the play system and its indefinite useful life.” In particular, the court credited the description of the play system as “built like a tank” in the manufacturer’s catalogue and its “lifetime guarantee,” as was the court’s exclusive prerogative as arbiter of credibility. The court also emphasized the significant size and weight of the “Monster Double Whammy” play system. The court further noted that, in the years since it was erected in 2004, “the play system has remained firmly in the same place where it was erected and has not been moved or relocated on a seasonal basis. ” In addition, the court visited the property at the request of the parties and observed the play system firsthand, affording it a perspective no appellate record can replicate.

Those considerations underlie the court’s finding that the play system constructed by the defendants constituted a permanent structure in violation of the terms of the easement. On the record before us, we cannot say that the court’s finding is clearly erroneous. We therefore conclude that the court properly rendered injunctive relief ordering the defendants to remove the play system from the easement area.

The judgment is reversed in part and the case is remanded to the trial court with direction to enter an order requiring the plaintiff to remove the six spruce trees planted in the easement area. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Michael Jamison is the sole member of Carnegie. He and his wife, the defendant Janice Jamison, maintain a place of abode at 116 Brookside Drive. For convenience only, we refer to them collectively as owners of the dominant estate.

       Multiple photographs of the trees were admitted into evidence, including ones depicting their installation.

       In its memorandum of decision, the court found that “[njeither party presented any evidence as to the intent of the parties to the 1995 deed creating the easement.”

       In his appellate brief, the plaintiff states that he “does not contest this aspect of [the court’s] decision and plans on removing the three trees.”

       The brochure for the Monster Double Whammy play system, which was admitted into evidence, indicates that it is 48.5 feet long, 22.5 feet wide and 14.5 feet high. The brochure further represents that “the Monster Double Whammy rivals the size and play activities of a $35,000 park and school commercial playground.”

       Our Supreme Court discussed permanent structures in the context of claims of adverse use in Smith v. Muellner, 283 Conn. 510, 932 A.2d 382 (2007).

       Although the record does not disclose the total weight of the play system, the base unit itself approaches one ton. The court specifically found that the defendants’ play system “is at least twice the size of the base unit. . . .”
      In their appellate brief, the defendants argue that the play system “sits on [their] lawn without any mechanism affixing or anchoring it to the ground to give it an element of permanency.” That argument overlooks the fact, noted by our Supreme Court in Historic District Commission v. Hall, 282 Conn. 672, 681, 923 A.2d 726 (2007), that “[t]here . . . can be no doubt that gravity may serve the . . . purpose of ‘affixing’ a veiy heavy object to land

       The defendants in their appellate brief concede “that there is no evidence directly providing the expense or number of hours necessary to disassemble the defendants’ play system . . .


author: BORDEN, J.

text:
    JANINE CANNIZZARO v. STEPHAN MARINYAK ET AL.
    (AC 33278)
    Gruendel, Lavine and Borden, Js.
    Argued September 6
    officially released December 25, 2012

      Kevin S. Coyne, for the appellant (plaintiff).

      Joseph M. Musco, with whom, on the brief, was Joshua A. Yahwak, for the appellee (defendant Diane Jennings Mayo).
   Opinion

BORDEN, J.

The issue before this court is the scope of an employer’s duty for the tortious conduct of an employee, outside the scope of his employment, that occurred off the employer’s premises. The plaintiff, Janine Cannizzaro, commenced this action after she was injured in an automobile accident with the defendant Stephan Marinyak. At the time of the accident, Marinyak was an employee of the defendant Diane Jennings Mayo, a homeowner in Redding. The plaintiff appeals from the summary judgment rendered in favor of the defendant. On appeal, the plaintiff claims that the trial court improperly concluded that, under the facts of the case, the defendant did not owe her a duty of care. We agree with the trial court and, accordingly, affirm the judgment.

On February 19, 2008, the plaintiff filed a six count amended complaint against Marinyak, Town Fair Tire and the defendant. Counts four, five, and six are against the defendant, alleging negligent supervision, negligent service of alcohol and reckless service of alcohol, based on claims that Marinyak and other employees of the defendant regularly drank alcohol while working at the defendant’s home, including on the day of the accident. The defendant moved for summary judgment on the ground that she owed no duty of care to the plaintiff. The trial court granted the motion and rendered judgment for the defendant on counts four, five and six of the complaint. This appeal followed.

On appeal, the plaintiff claims that the court improperly granted the motion for summary judgment because there was a question of fact affecting the legal determination of whether the defendant owed a duty of care to the plaintiff. Specifically, the plaintiff claims that, because the defendant was negligent in failing to supervise Marinyak’s consumption of alcohol while working on her premises, the defendant owed her a duty of care that was breached when Marinyak, driving while intoxicated, collided with the plaintiff, causing her injuries. In this connection, the plaintiff claims that there was a question of fact disclosed by the evidence submitted in opposition to the motion for summary judgment regarding Marinyak’s consumption of alcohol on the defendant’s premises and the defendant’s constructive knowledge thereof. We conclude that, although the plaintiff produced sufficient evidence to establish a question of fact regarding the defendant’s constructive knowledge of Marinyak’s consumption of alcohol on the defendant’s premises, nonetheless, as a matter of law, the defendant did not owe a duty of care to the plaintiff.

The following facts are undisputed for purposes of this appeal. During the afternoon of January 29, 2007, while driving northbound on Route 15 in Fairfield County, Marinyak attempted to maneuver his vehicle to pass the plaintiffs vehicle. He collided with the plaintiffs vehicle causing the plaintiff catastrophic injuries, including the amputation of her leg and a traumatic brain injury. Investigation by the state police determined that Marinyak was under the influence of alcohol at the time of the accident and had a blood alcohol level of 0.19 percent. Marinyak worked for the defendant as a plasterer and painter during the renovation of her home. Shortly before the accident, Marinyak had left the work site at the defendant’s home. In addition, there was sufficient evidence produced by the plaintiff in response to the defendant’s summary judgment motion to establish that Marinyak and other employees of the defendant at her home regularly consumed alcohol while working on her premises for a period of approximately one and one-half years prior to the accident, and that, on the day of the accident, Marinyak had consumed alcohol there before leaving the premises in his car.

At the outset, we note our standard of review. “Summary judgment is appropriate when 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. . . . Thus, because the court’s decision on a motion for summary judgment is a legal determination, our review on appeal is plenary . . . (Citations omitted; internal quotation marks omitted.) Heussner v. Day, Berry & Howard, LLP, 94 Conn. App. 569, 572-73, 893 A.2d 486, cert. denied, 278 Conn. 912, 899 A.2d 38 (2006). “The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant [breached] that duty in the particular situation at hand.” (Internal quotation marks omitted.) Lachowicz v. Rugens, 119 Conn. App. 866, 868, 989 A.2d 651, cert. denied, 297 Conn. 901, 994 A.2d 1287 (2010). Accordingly, our review of this issue is plenary.

I

With respect to the duty of care owed by an employer to a third party injured by an employee for conduct outside the scope of employment, our Supreme Court has adopted the provisions of §§ 314 through 317 of the Restatement (Second) of Torts, and § 317 in particular. See Murdock v. Croughwell, 268 Conn. 559, 566-70, 848 A.2d 363 (2004). In Murdock, the court rejected the plaintiffs contention that, pursuant to § 317, the defendant, the chief of the Hartford police department, owed a duty of care to the plaintiff for damages suffered in an off-duty, physical altercation with a Hartford police officer, Antonio Cancel, that took place off department premises. Id., 560-61, 570. The court reached this conclusion despite the facts that, as chief of police, the defendant was “responsible for the efficiency, discipline, and the good conduct of the department, which he regulated through the department’s code of conduct”; (internal quotation marks omitted) id., 562; which “allowed [the defendant] to discipline officers for inappropriate conduct, either on or off duty”; id.; and that one of the bases of the plaintiffs claim was the defendant’s negligent failure to supervise Cancel properly. Id., 563.

The court stated: “The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action. . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care. . . . [T]he test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case. . . .

“With respect to the second inquiry, namely, the policy analysis, there generally is no duty that obligates one party to aid or to protect another party. See 2 Restatement (Second), Torts § 314, p. 116 (1965). One exception to this general rule arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of a duty to aid or to protect another. See W. Prosser & W. Keeton, Torts (5th Ed. 1984) §56, pp. 373-74; see also 2 Restatement (Second), supra, §§ 314A, 315 .... In delineating more precisely the parameters of this limited exception to the general rule, this court has concluded that, [in the absence of] a special relationship of custody or control, there is no duty to protect a third person from the conduct of another.” (Emphasis in original; internal quotation marks omitted.) Murdock v. Croughwell, supra, 268 Conn. 566.

Moreover, the court noted that one of those special relationships that, depending on the circumstances, may impose a duty to protect a third person from the conduct of another is that of master and servant, which is covered by § 317 of the Restatement (Second). See id., 569-70. In doing so, however, the court strongly implied that the contours of such special relationships should be viewed cautiously, because they constitute “exception[s] to the general rule that there is no duty to control the conduct of a third person.” Id., 567. The court quoted § 314 of the Restatement (Second) of Torts: “The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.” (Internal quotation marks omitted.) Id. Thus, the court stated that it was “[m]indful that the starting point of [its] analysis is the general prohibition against imposing upon an individual a duty to control the conduct of a third party.” Id.

Section 317 of the Restatement (Second) of Torts states in relevant part: “A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if (a) the servant (i) is upon the premises in possession of the master ... or (ii) is using a chattel of the master, and (b) the master (i) knows or has reason to know that he has the ability to control his servant, and (ii) knows or should know of the necessity and opportunity for exercising such control.” Comment (b) to § 317 of the Restatement (Second) of Torts states: “A master is required to police his own premises .... On the other hand, the master as such is under no peculiar duty to control the conduct of his servant while he is outside of the master’s premises, unless the servant is at the time using a chattel entrusted to him as servant.” “Thus, the Restatement (Second) of Torts § 317 provides that an employer has no duty to control the conduct of an off-duty employee except when the complained-of conduct occurs on the employer’s premises, utilizes a chattel of the employer’s, and the employer knows or has reason to know that he can control the employee and recognizes the necessity of so doing.” (Emphasis added.) Doe v. Federal Express Corp., 571 F. Sup. 2d 330, 333 (D. Conn. 2008) (employer not subject to liability for victim sexually abused by employee because abuse occurred off employer’s premises, despite victim’s claims that employee used employer’s reputation to gain trust of victim’s family, wore his company uniform when conducting abuse and used employer’s telephone to contact victim’s family), aff'd, 345 Fed. Appx. 670 (2d Cir. 2009).

Application of these principles to the facts of this case leads us to conclude that the defendant did not have a duty to protect the plaintiff from Maiinyak’s driving while intoxicated. We reach this conclusion for three reasons.

First, the “complained-of conduct” is precisely the driving while intoxicated, which occurred off the defendant’s premises. See Doe v. Federal Express Corp., supra, 571 F. Sup. 2d 333. Because § 317 represents an exception, not only to the general rule of prohibition against imposing a duty to control the conduct of another, but to the rule that, generally, a master is not hable for the conduct of his servant outside the scope of the employment; see 2 Restatement (Second), supra, § 317, comment (a); it is clear to us that the language of § 317, namely, “so conducting himself as to create an unreasonable risk of bodily harm to [others]”; id., § 317; refers, not to the master’s conduct, but to the servant’s conduct. Thus, our focus must be, not on the allegedly tortious conduct of the defendant, namely, the negligent failure to supervise her employee while he was on her premises, but on the tortious conduct of Marinyak, which took place off those premises. Put another way, § 317 requires the court to ask whether the servant’s tortious conduct took place on the master’s premises. And the answer to that question in the present case is in the negative.

Second, this reading would be consistent with the caution one needs to exercise when interpreting the principles of these sections of the Restatement (Second), because, as out Supreme Court noted, they represent exceptions to the rule. See Murdock v. Croughwell, supra, 268 Conn. 566. A contrary conclusion would be inconsistent with that controlling case.

Third, this conclusion is consistent -with the great majority of cases from other jurisdictions that have addressed the question, under § 317, of whether an employer owes a duty to a third person injured by an employee who consumed alcohol on the employer’s premises. See, e.g., Biel v. Alcott, 876 P.2d 60, 63 (Colo. App. 1993) (plaintiff injured in collision with intoxicated driver sued intoxicated driver’s employer for negligent supervision in storing box of wine at place of employment that led to employee’s intoxication and court affirmed summary judgment for employer, noting that employer has no duty to supervise off-duty employees unless employee is on employer’s premises or possesses employer’s property), cert. denied, 1994 Colo. LEXIS 592 (Colo. July 11, 1994); Pursley v. Ford Motor Co., 462 N.E.2d 247, 250-51 (Ind. App. 1984) (employee drank surreptitiously while on job site and court held employer not subject to liability for plaintiff harmed in accident with intoxicated employee because accident and negligence of employee occurred outside employer’s premises); Mosko v. Raytheon Co., 416 Mass. 395, 400 n.7, 622 N.E.2d 1066 (1993) (plaintiff was injured when struck by vehicle of employee of defendant who had attended Christmas party for defendant’s employees and became intoxicated; holding § 317 cannot be read to apply to accident that occurs when employee is driving own vehicle and is not on employer’s premises); Tallariti v. Kildare, 63 Wn. App. 453, 458-59, 820 P.2d 952 (1991) (employees obtained and consumed alcohol after work on job site; employer owed no duty to plaintiff injured in crash with intoxicated employee), review denied, 118 Wn. 2d 1012, 824 P.2d 491 (1992); Killian v. Caza Drilling, Inc., 131 P.3d 975, 988 (Wyo. 2006) (after bicyclist killed when hit by truck, estate sued company of employees involved in accident who had been drinking on company’s premises prior to accident; court affirmed summary judgment for defendant company, noting that § 317 “imposes a duty on an employer for the negligent acts of its employees when they are acting outside the scope of their employment only if the employee is on the employer’s premises or using the chattel of the employe[r]”); but see Wong-Leong v. Hawaiian Independent Refinery, Inc., 76 Haw. 433, 444-46, 879 P.2d 538 (1994) (reversing in part trial court’s grant of motion for summary judgment for employer, court held that fact issue existed as to whether employer knew of necessity for exercising control over employee, as there was evidence that employer was aware, and condoned tradition, of employees consuming alcohol on premises after working hours).

The plaintiff argues that Seguro v. Cummiskey, 82 Conn. App. 186, 844 A.2d 224 (2004), controls and requires a conclusion of a duty of care in the present case. We disagree.

In Seguro this court considered “the scope of an employer’s duty to supervise an employee”; id., 187; and held that “proprietors of establishments that serve alcohol do indeed have a duty to protect third parties from the conduct of bartenders and other servers who drink intoxicating liquor on the job.” Id., 191. The plaintiff, injured by a bartender who had several drinks during the course of his shift and crashed into the plaintiffs parked van on his way home from work; id., 188; sued the bartender’s employer for negligent supervision alleging, inter alia, that the employer allowed the employee to drink openly while on duty in violation of workplace policy. Id., 189. The court reasoned that it is “consistent with the development of our law to recognize a duty of employers at an establishment that serves liquor to third parties to supervise employees and to protect the public from an employee who drinks on the job.” Id., 198. Accordingly, the court held that “employers have a duty to supervise tavern employees at the workplace as to their consumption of intoxicating liquor.” Id. Additionally, in Seguro, this court rejected the defendant tavern owner’s claim that, under § 317, there was no duty to control an employee outside the scope of employment because “[t]he negligence in question did not occur off-site, but rather involved the actions and inactions of the defendant in failing to supervise [his employee] as to consumption of intoxicating liquor on the job.” Id., 194 n.8.

The plaintiff argues that Seguro controls because, like the employee in Seguro, Marinyak’s consumption of alcohol occurred during employment and at the place of employment. We read Seguro, however, as limited to the particular circumstances in which the place of employment involves the service of alcohol as its regular course of business. Moreover, to the extent that Seguro rests on an expansive reading of § 317, we note that Seguro was released one month prior to our Supreme Court’s decision in Murdock v. Croughwell, supra, 268 Conn. 566-70. Therefore, this court did not have the benefit of the Supreme Court’s analysis of § 317 contained in Murdock, where the Supreme Court implicitly overruled the analysis of § 317 in Seguro when it stated that the tortious acts of an employee must occur on the employer’s premises in order to impose a duty on the employer under the special relationship analysis in § 317. See id., 570.

II

The plaintiff also claims that we should look to the Restatement (Third) of Torts, Liability for Physical and Emotional Harm § 41 (2010), for additional guidance regarding the duty owed to third persons based on a special relationship. The substance of the Proposed Final Draft No. 1 of the Restatement (Third) has been approved by both the American Law Institute’s Council and its membership and has recently been published in its final form. See American Law Institute, “Current Projects, Restatement Third, Torts: Liability for Physical and Emotional Harm,” available at http://www.ali.-org/index.cfm?fuseaction=projects.proj ip&projectid= 16 (last visited December 6, 2012). “Once approved by the Council and membership, Tentative Drafts and Proposed Final Drafts may be cited as representing the most current iteration of the Institute’s position until the official text is published.” Id. Indeed, even prior to its final publication, several states already had adopted portions of the Restatement (Third), including Wisconsin; Behrendt v. Gulf Underwriters Ins. Co., 318 Wis. 2d 622, 636, 768 N.W.2d 568 (2009); Iowa; Thompson v. Kaczinski, 774 N.W.2d 829, 839 (Iowa 2009); and Nebraska; A.W. v. Lancaster County School District 0001, 280 Neb. 205, 212, 784 N.W.2d 907 (2010). We, however, decline to do so.

First, “[i]tis axiomatic that this court, as an intermediate body, is bound by Supreme Court precedent and [is] unable to modify it ... . [W]e are not at liberty to overrule or discard the decisions of our Supreme Court but are bound by them. . . . [I]t is not within our province to reevaluate or replace those decisions.” (Internal quotation marks omitted.) Coyle Crete, LLC v. Nevins, 137 Conn. App. 540, 560-61, 49 A.3d 770 (2012). See, e.g., Stuart v. Stuart, 297 Conn. 26, 45-46, 996 A.2d 259 (2010) (“[I]t is manifest to our hierarchical judicial system that [the Supreme Court] has the final say on matters of Connecticut law and that the Appellate Court . . . [is] bound by our precedent”). Accordingly, because our Supreme Court precedent currently follows the Restatement (Second) of Torts; see Murdock v. Croughwell, supra, 268 Conn. 575; we recognize that it is the function of the Supreme Court, not this corut, to determine whether this provision of the Restatement (Third) should be adopted by our courts.

Second, even if we were to adopt the provisions of the Restatement (Third), it is unlikely that the outcome of our analysis would change. Section 41 of the Restatement (Third) of Torts provides in relevant part: “(a) An actor in a special relationship with another owes a duty of reasonable care to third persons with regard to risks posed by the other that arise within the scope of the relationship, (b) Special relationships giving rise to the duty in Subsection (a) include . . . (3) an employer with employees when the employment facilitates the employee’s causing harm to third parties . . . Restatement (Third), supra, § 41, p. 778 (Proposed Final Draft No. 1, 2005). Although the Restatement (Third) removes the premises and chattel requirements contained in the Restatement (Second), the comments to § 41 explain that “[e]mployment facilitates harm to others when the employment provides the employee access to physical locations, such as the place of employment ... or other means by which to cause harm that would otherwise not be available to the employee.” See id., § 41, comment (e), p. 782. It is unlikely that we would conclude that there was anything about the defendant’s premises that furnished Marinyak access to alcohol before driving that he would not have had otherwise. Further, the Reporter’s Note also cites approvingly to those cases, decided under § 317 of the Restatement (Second), where employers did not owe a duty to plaintiffs injured in crashes with intoxicated employees, even when the employees drank on the employer’s premises. See id., § 41, Reporter’s Note to comment (e), p. 795.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant Stephan Marinyak, the apportionment defendant Town Fair Tire, the third party defendant Rana Saleh, doing business as Getty Bamum Mart, and the substitute third party defendant Adan Rahim, doing business as Getty Bamum Mart, are not parties to this appeal. For convenience, we refer in this opinion to Diane Jennings Mayo as the defendant and to Stephan Marinyak by name.

       Although the plaintiff alleged that the defendant personally served alcohol to the defendant on the day of the accident and other times, the defendant’s uncontradicted affidavit stated that she was in Florida on the day of the accident and never at any time personally served alcohol to the defendant, and Marinyak testified in his deposition that the defendant never provided alcohol to him and never saw him drinking on the premises. It is clear, therefore, from the plaintiffs appellate brief that the basis of this allegation of negligent or reckless service of alcohol is that Marinyak and other employees consumed alcohol on the defendant’s premises for approximately a year and one-half “on a regular basis and [this consumption] was never hidden . . . stopped or prevented. . . . Further, since [the defendant’s] supervisor [at the work site] was aware of the consumption of alcohol as well as all employees, this knowledge and awareness was imputed to [the defendant].” We therefore consider the plaintiffs claim in this case to be essentially that the defendant is liable for Marinyak’s tortious conduct because of her negligent supervision of the consumption of alcohol by him on her premises as her employee, resulting in the plaintiffs injuries.

       Section 317 of the Restatement (Second) of Torts states: “A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if (a) the servant (i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or (ii) is using a chattel of the master, and (b) the master (i) knows or has reason to know that he has the ability to control his servant, and (ii) knows or should know of the necessity and opportunity for exercising such control.”

       There is no claim in the present case that Marinyak was using a chattel of the defendant, namely, the defendant’s car.

       Comment (a) to § 317 of the Restatement (Second) of Torts states: “The rule stated in this Section is applicable only when the servant is acting outside the scope of his employment. If the servant is acting within the scope of his employment, the master may be vicariously hable under the principles of the law of Agency. See Restatement of Agency, Second, Chapter 7.”