author: SPEAR, J.

text:
    ROBERT P. GOLDEN, JR. v. JOHNSON MEMORIAL HOSPITAL, INC., ET AL.
    (AC 20196)
    Landau, Spear and Dupont, Js.
    Argued April 5
    officially released October 30, 2001

      Elizabeth J. Robbin, with whom was Donald Gaudreau, for the appellant (plaintiff).

      Amy F. Goodusky, for the appellee (named defendant).

      Robert F. Kappes, for the appellee (defendant Connecticut Pathology Associates, P.C.).
   Opinion

SPEAR, J.

In this medical malpractice action, the plaintiff, Robert P. Golden, Jr., appeals from the summary judgment rendered by the trial court in favor of the defendants, Johnson Memorial Hospital, Inc. (hospital), and Connecticut Pathology Associates, P.C. (Associates), on their defense that the plaintiffs action is time barred pursuant to General Statutes § 52-584. The plaintiff claims that summary judgment was improper because (1) the repose section of § 52-584 was tolled by the continuing course of conduct doctrine, and (2) the repose section would bar his claim before he could have known that he had suffered actionable harm in violation of article first, §§ 1 and 10, and article first, § 20, of the constitution of Connecticut, as amended by article twenty-one of the amendments, and the fourteenth amendment to the United States constitution. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. In March, 1986, the plaintiff went to the hospital because he had been suffering from a prolonged cold for over two months and, during the previous two weeks, a lump had formed on the right side of his neck. A few days later, on March 24,1986, the plaintiff underwent surgery at the hospital to have the lump removed. On the same day, samples of the lump tissue were sent to Associates for analysis. Arturo P. Villa, a pathologist, issued a final pathology report (1986 report) on a hospital letterhead diagnosing the tissue as nonspecific lymphadenitis, possibly of bacterial origin. The surgeon told the plaintiff that he was cured. Thereafter, the plaintiff sought no further treatment.

Eleven years later, in late November, 1997, the plaintiff was injured playing flag football. A few days later, he sought medical treatment from his family physician, who referred him for a series of tests, including a CAT scan and ultrasound. The test results showed that the plaintiff had an enlarged spleen and multiple enlarged lymph nodes. The plaintiffs physician referred the plaintiff to Dennis Morgan, an oncologist, for treatment. On December 31,1997, at Morgan’s request, the plaintiff submitted to an exploratory laparotomy, which revealed that he had Hodgkin’s disease.

During questioning regarding his health history, the plaintiff informed Morgan of the lump that was removed at the hospital eleven years earlier. Morgan requested from the hospital a review and report regarding the pathology slides made from the tissue samples in 1986. Morgan’s wife, Susan Parker, a pathologist and an employee of the hospital, reviewed the 1986 tissue sample slides. Thereafter, on January 28, 1998, Parker issued a corrected report on hospital letterhead that reflected a change in the diagnosis, stating: “Lymph node, right supraclavicular: Partial lymph node involvement with Hodgkin’s disease . . . .”

Less than six months after the corrected report was issued, but more than twelve years after the original diagnosis, the plaintiff commenced this action. One year later, the hospital and Associates both filed motions for summary judgment, claiming that the plaintiffs action was barred by the three year repose section of the statute of limitations, § 52-584, and that there were no genuine issues of material fact. The plaintiff objected to both motions. The plaintiff claimed that the defendants breached a continuing duty to him and, therefore, the statute of limitations was tolled by the continuing course of conduct doctrine. He claimed, alternatively, that the statute of repose is unconstitutional as applied to the circumstances of this case. At the hearing on the motions for summary judgment, the hospital filed a reply to the plaintiffs objection.

The court granted both defendants’ motions for summary judgment, finding that there was no genuine issue of material fact as to whether the continuing course of conduct doctrine applied and, thus, that the plaintiffs claims were barred by the repose section of the statute of limitations, § 52-584. The plaintiff filed a motion for reargument, claiming that the court improperly had relied on the hospital’s reply brief in its memorandum of decision. See footnote 3. The court denied the plaintiffs motion, and this appeal followed.

The standard of review of a trial court’s decision to grant summary judgment is well established. “[T]he scope of our review of the granting of a motion for summary judgment is plenary. ... In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. . . . Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.” (Citations omitted; internal quotation marks omitted.) Richter v. Danbury Hospital, 60 Conn. App. 280, 286, 759 A.2d 106 (2000).

“Practice Book § 17-49 . . . requires that 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. A material fact is a fact that will make a difference in the result of the case. . . . The facts at issue are those alleged in the pleadings. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. . . . The party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts. ... A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiffs claim and involves no triable issue of fact.” (Citations omitted; internal quotation marks omitted.) Mountaindale Condominium Assn., Inc. v. Zappone, 59 Conn. App. 311, 315, 757 A.2d 608, cert. denied, 254 Conn. 947, 762 A.2d 903 (2000).

I

THE TOLLING ISSUE

The plaintiffs principal claim is that the determination of whether the continuing course of conduct doctrine applies is “a factual question to be determined by the jury.” He makes the subsidiary claims that the court improperly (1) decided the question of a continuing duty rather than determining whether a genuine issue of material fact existed on that question and (2) based its decision on our holding in Witt v. St. Vincent’s Medical Center, 52 Conn. App. 699, 727 A.2d 802 (1999), which subsequently was reversed by our Supreme Court in Witt v. St. Vincent’s Medical Center, 252 Conn. 363, 746 A.2d 753 (2000). The plaintiffs principal claim turns on the question of whether the defendants had a continuing duty to the plaintiff, and the related issues are subsumed in our resolution of that question.

Our Supreme Court has recognized “that the statute of limitations, in the proper circumstances, may be tolled under the continuous treatment or the continuing course of conduct doctrine, thereby allowing a plaintiff to commence his or her lawsuit at a later date.” Blanchette v. Barrett, 229 Conn. 256, 265, 640 A.2d 74 (1994). “Both of these doctrines are well established in the jurisprudence of this state. . . . The continuous treatment doctrine was first recognized in a medical malpractice context in Giambozi v. Peters, [127 Conn. 380, 16 A.2d 833 (1940), overruled on other grounds, Foran v. Carangelo, 153 Conn. 356, 360, 216 A.2d 638 (1966)]. We stated in Giambozi that [t]he term malpractice itself may be applied to a single act of a physician or surgeon or, again, to a course of treatment. The Statute of Limitations begins to run when a breach of duty occurs. When the injury is complete at the time of the act, the statutory period commences to run at that time. When, however, the injurious consequences arise from a course of treatment, the statute does not begin to run until the treatment is terminated. . . .

“As an alternative, the continuing course of conduct doctrine has also been applied to toll the statute of limitations. In its modem formulation, we have held that in order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to the commencement of the period allowed for bringing an action for such a wrong. . . . Where we have upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act. . . .

“Although the continuing course of treatment and the continuing course of conduct doctrines are analytically separate and distinct, their relevance to any particular set of circumstances . . . may overlap. In underlying policy, the doctrines have considerable similarity. In application, both doctrines are conspicuously fact-bound.

“These doctrines share similar supporting rationales. The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and yet be remedied. Similarly, [t]he policy underlying the continuous treatment doctrine seeks to maintain the physician/patient relationship in the belief that the most efficacious medical care will be obtained when the attending physician remains on a case from onset to cure.” (Citations omitted; internal quotation marks omitted.) Blanchette v. Barrett, supra, 229 Conn. 274-76.

The gravamen of the continuing course of conduct doctrine is that a duty continues after the original wrong is committed. Here, to prevail, the plaintiff had to show that Associates remained under a duty to him after the original misdiagnosis in 1986.

The plaintiff relies on our Supreme Court’s statement in Blanchette that the application of the continuing course of conduct doctrine is “conspicuously fact-bound.” Id., 276. The plaintiff fails to appreciate that before the doctrine can be applied, a duty must first be found to have existed. “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 violated that duty in the particular situation at hand.” (Internal quotation marks omitted.) Mendillo v. Board of Education, 246 Conn. 456, 483, 717 A.2d 1177 (1998). Our view of that legal question is plenary, and the plaintiffs claim rises or falls on whether such a continuing duty exists.

The plaintiff claims that the defendants owed a continuing duty to him from the time of the original misdiagnosis in 1986 until the issuance of the corrected report in 1998. The plaintiff asserts that the pathologist’s duty to the patient arises out of his examination of the patient’s tissue, his analysis of that tissue, and his diagnosis resulting from that examination and analysis. The plaintiff further argues that his reliance on Villa’s diagnosis in the 1986 report and the fact that he did not consult with another physician because he was not provided follow-up treatment or given instructions on follow-up care shows that Associates had a continuing physician-patient relationship with him.

“We have stated that the 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. . . . The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy.” (Citations omitted; internal quotation marks omitted.) Id., 483-84.

Our first step in deciding whether Associates had a duty to follow-up or instruct on follow-up care and the extent of Associates’ duty or duties is to determine the foreseeability of the plaintiffs injury. When determining whether the defendant breached a duty owed to the plaintiff in cases sounding in professional negligence, the plaintiff is required to present evidence from an expert where knowledge of the duty is beyond the experience of an ordinary fact finder. Sherwood v. Danbury Hospital, 252 Conn. 193, 207-208 n.13, 746 A.2d 730 (2000). The affidavit of the plaintiffs expert indicated that Associates should have known that the plaintiff had Hodgkin’s disease. Moreover, Associates conceded that it committed an initial wrong against the plaintiff, namely the misdiagnoses. We conclude that Associates should have known from the 1986 pathology slides that the plaintiff had Hodgkin’s disease, but failed to diagnose it and that it was foreseeable that the plaintiffs injuries would include an advanced stage of Hodgkin’s disease.

Having concluded that the plaintiffs injuries were foreseeable, we need to determine, as a matter of policy, the extent of the legal duty to be imposed on Associates. We must, therefore, determine whether Associates’ responsibility should extend to providing the plaintiff with either follow-up treatment or instruction on followup care.

“While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree. . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant’s responsibility should extend to such results.” (Internal quotation marks omitted.) Mendillo v. Board of Education, supra, 246 Conn. 484.

The statute of limitations and repose sections are a way of implementing the public policy of limiting the legal consequences of wrongs to a controllable degree. “There are two principal reasons generally given for the enactment of a statute of repose: (1) it reflects a policy of law, as declared by the legislature, that after a given length of time a [defendant] should be sheltered from liability and furthers the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability . . . and (2) to avoid the difficulty in proof and record keeping which suits involving older [claims] impose.” (Internal quotation marks omitted.) Sanborn v. Greenwald, 39 Conn. App. 289, 305, 664 A.2d 803, cert. denied, 235 Conn. 925, 666 A.2d 1186 (1995).

Witt was the only case in which our Supreme Court extended the duty of a pathologist, in the context of a physician-patient relationship, to warn the plaintiff of his concern of cancer at the time of the original diagnosis. Witt v. St. Vincent’s Medical Center, supra, 252 Conn. 376. Eleven years after the original diagnosis, the pathologist sent the original slides and report to the plaintiffs treating oncologist. On the report, the pathologist wrote a note to the treating oncologist indicating that at the time of the original diagnosis the pathologist had been concerned that the plaintiff might have been “evolving a small lymphocytic lymphoma/CCL.” Id., 365. Our Supreme Court concluded that whether the physician-patient relationship with the pathologist may have continued on the basis of his continuing duty to warn the plaintiff of his concerns and whether his duty to warn was continually breached were questions of material fact and, therefore, that summary judgment was improper. Id., 376-77. Here, there is nothing in the record to indicate that Associates had concerns or failed to report its complete findings to the plaintiff. Witt, therefore, does not apply.

In Blanchette v. Barrett, supra, 229 Conn. 278-79, our Supreme Court concluded that a family physician had a duty to monitor a patient subsequent to a negative diagnosis. The defendant’s duty to monitor the plaintiffs illness arose from his ongoing relationship with the plaintiff. Although no ongoing relationship is required for the continuing course of conduct doctrine to apply, in Blanchette, the “defendant’s affirmative continuing duty to monitor the plaintiffs illness arose from his ongoing relationship with the plaintiff.” Sherwood v. Danbury Hospital, supra, 252 Conn. 210. Here, we do not have that type of relationship. The plaintiff admitted that he was not even aware that a pathologist was involved in his diagnosis. There was no actual contact between Associates and the plaintiff. Furthermore, Associates performed no subsequent work for the plaintiff, and there was nothing in the record showing that it was required to do so.

We conclude that, as a matter of law, to expect a pathology group to provide follow-up treatment or to instruct a patient on follow-up care after a negative diagnosis when there is no awareness that the diagnosis is wrong and there is no ongoing relationship is beyond the expectation of public policy. The plaintiff fails to establish justification necessary to support recognition of a legal duty on the part of Associates to provide him with follow-up treatment or instruction on follow-up care where there is a misdiagnosis of which Associates was unaware. The plaintiff fails to cite any case in which a pathologist in those circumstances, as a matter of law, was found to have a duty to provide follow-up treatment to a patient or to instruct a patient on followup care.

Furthermore, “[t]he application of the continuing course of conduct doctrine necessitates an examination of the cases in which the statute of limitations was tolled on the basis of that doctrine.” Sanborn v. Greenwald, supra, 39 Conn. App. 296. In the context of medical malpractice and the applicability of the continuing course of conduct doctrine, our Supreme Court has tolled the statute of limitations when there was a duty to: (1) warn the plaintiff of concerns at the time of the original diagnosis; Witt v. St. Vincent’s Medical Center, supra, 252 Conn. 376; (2) notify the plaintiff of untested blood; Sherwood v. Danbury Hospital, supra, 252 Conn. 197; (3) monitor a plaintiffs condition after a negative diagnosis where there was an ongoing relationship; Blanchette v. Barrett, supra, 229 Conn. 280; and (4) warn a plaintiff of potential harmful effects of a prescription drug. Cross v. Huttenlocher, 185 Conn. 390, 402, 440 A.2d 952 (1981).

To extend an initial duty to a pathologist to provide follow-up treatment or to instruct a patient on follow-up care when there is a negative diagnosis and no ongoing relationship would basically render the statute of limitations a nullity. That result would be against the policy of limiting the liability of defendants to claims brought within a reasonable time. As our Supreme Court stated in Blanchette, “[w]e do not think that the language or policy of the statute permits such a reading.” Blanchette v. Barrett, supra, 229 Conn. 284. Accordingly, we conclude that there was no initial duty for Associates or the hospital to provide follow-up treatment or to instruct the plaintiff on follow-up care; therefore, there was no subsequent wrongful misconduct and no genuine issue of material fact as to whether there was a continuing duty.

The plaintiff also argues that the court improperly decided questions of fact and ignored its obligation to view the facts presented in the light most favorable to him. Specifically, the plaintiff argues that the facts that the defendants kept the pathology slides, reevaluated the slides and issued the corrected report implied that there was a continuing duty; thus, the court’s holding that there was no continuing duty was improper. We disagree.

As we already have resolved, Associates and the hospital had no duty to the plaintiff after the diagnosis of the slides and the issuance of the 1986 report. There may be a number of reasons why the defendants kept the slides, but the plaintiff offers nothing in support of his assertion that merely retaining the slides imposes a continuing duty on the defendants. The reevaluation of the slides and the corrected report resulted from the plaintiff’s new relationship with Morgan, not the former relationship with the defendants.

The plaintiff further argues that the court improperly relied on Witt v. St. Vincent’s Medical Center, supra, 52 Conn. App. 699, in which the judgment subsequently was reversed by our Supreme Court. We agree. We may, however, rely on alternate grounds supported by the record to sustain a judgment. Galvanek v. Skibitcky, 55 Conn. App. 254, 257 n.5, 738 A.2d 1150 (1999). “Where the trial court reaches a correct decision but on mistaken grounds, this court has repeatedly sustained the trial court’s action if proper grounds exist to support it.” (Internal quotation marks omitted.) Id. Here, the court relied on our decision in Witt v. St. Vincent’s Medical Center, supra, 52 Conn. App. 707, which subsequently was overturned by our Supreme Court in Witt v. St. Vincent’s Medical Center, supra, 252 Conn. 376-77. In Witt v. St. Vincent’s Medical Center, supra, 52 Conn. App. 699, we concluded that the court properly had determined that there were no genuine issues of material fact regarding the applicability of the continuing course of conduct doctrine. Even though the trial court in this case relied on our subsequently overruled decision in Witt v. St. Vincent’s Medical Center, supra, 52 Conn. App. 699, its conclusion was proper because the defendants had no continuing duty.

The plaintiff further argues that there is a question of fact as to whether the corrected report and his expert’s report together show that Associates’ 1986 misdiagnosis was so egregious that it rises to the level of fraudulent concealment. The hospital argues that this argument has not been properly preserved for our review. We conclude that even if that argument was preserved properly for our review, it has no merit.

To establish that the hospital had fraudulently concealed the existence of his cause of action and so had tolled the statute of limitations, the plaintiff had the burden of showing in his opposition papers that the hospital was aware of the facts necessary to establish that cause of action and that it had intentionally concealed those facts from the plaintiff. See, e.g., Connell v. Colwell, 214 Conn. 242, 250, 571 A.2d 116 (1990). There is nothing in the record that supports fraud on the part of the hospital by intentionally concealing a correct diagnosis from the plaintiff to prevent him from bringing a cause of action in medical malpractice. To the contrary, once the hospital was aware that there was a misdiagnosis, it issued the corrected report.

II

THE CONSTITUTIONAL CLAIMS

The plaintiff claims that the court improperly concluded that the repose section of the statute of limitations, § 52-584, does not violate either the state or federal constitutions. Specifically, he argues that the repose section of the statute of limitations, § 52-584, as applied to him, violates (1) the open courts provision of article first, § 10, of the constitution of Connecticut, (2) his due process rights as guaranteed by the constitution of Connecticut and the fourteenth amendment to the United States constitution, and (3) his equal protection rights as contained in article first, § 1, and article first, § 20, of the constitution of Connecticut, as amended by article twenty-one of the amendments, and the fourteenth amendment to the United States constitution.

A

First, the plaintiff claims that the repose section of § 52-584 violates the open courts provision of article first, § 10, of the constitution of Connecticut and that it therefore is unconstitutional. Specifically, he argues that (1) the repose section denies him his right to bring a claim without providing a reasonable alternative, and (2) his right to bring a claim is protected by our Supreme Court’s definitions of “injury” and “actionable harm.”

“We recognize that a party challenging the constitutionality of a statute must prove its unconstitutionality beyond a reasonable doubt. . . . While the courts may declare a statute to be unconstitutional, our power to do this should be exercised with caution, and in no doubtful case. . . . Every presumption is to be given in favor of the constitutionality of the statute.” (Internal quotation marks omitted.) Sanborn v. Greenwald, supra, 39 Conn. App. 299.

Article first, § 10, of the constitution of Connecticut, provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” “Article first, § 10, has been viewed as a limitation upon the legislature’s ability to abolish common law and statutory rights that existed in 1818, when article first, § 10, was adopted, and which were incorporated in that provision by virtue of being established by law as rights the breach of which precipitates a recognized injury .... Therefore, where a right existed at common law or by statute in 1818 and became incorporated into the Connecticut constitution by the adoption of article first, § 10, the legislature may restrict or abolish such incorporated right only where it provides a reasonable alternative to the enforcement of such right.” (Citations omitted; internal quotation marks omitted.) Ecker v. West Hartford, 205 Conn. 219, 234, 530 A.2d 1056 (1987).

At issue here is the right to bring a cause of action for injury to the plaintiff arising out of the alleged medical negligence of the defendants, a cause of action that existed at common law. See 2 Z. Swift, A System of the Laws of the State of Connecticut (1796) pp. 107-108 (cause of action for trespass on case existed where injury suffered by plaintiff caused by neglect of defendant).

The repose section of the statute of limitations contained in § 52-584 provides in relevant part: “No action to recover damages for injury to the person . . . caused by negligence ... or by malpractice of a physician, surgeon . . . [or] hospital . . . may be brought more than three years from the date of the act or omission complained of . . . .”

“Statutes of repose are constitutional enactments that involve a balancing of the hardship caused by the potential bar of a just claim with the advantage of barring stale claims. . . . When a right exists at common law, a statute of repose functions only as a qualification on the remedy to enforce the preexisting right.” (Citations omitted; internal quotation marks omitted.) Sanborn v. Greenwald, supra, 39 Conn. App. 305-306.

In Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 174, 127 A.2d 814 (1956), our Supreme Court addressed the constitutionality of General Statutes (1949 Rev.) § 8324, the predecessor to § 52-584. In dicta, the court observed that “[t]here is no reason, constitutional or otheiwise, which prevents the legislature from enacting a statute, such as § 8324, which starts the limitation on actions for negligence running from the date of the act or omission complained of, even though at that date no person has sustained damage and therefore no cause of action has come into existence. Indeed, such a provision accords with the purposes of statutes of limitation. ... It is consonant with the purpose of protecting defendants against stale claims that the legislature should enact a statute, such as § 8324, which may on occasion bar an action even before the cause of action accrues.” (Internal quotation marks omitted.) Id., 174-75. Neither our Supreme Court nor this court, however, has addressed directly the constitutionality of the repose section of the statute of limitations, § 52-584, in circumstances such as that of the plaintiff.

In Sanborn v. Greenwald, supra, 39 Conn. App. 306, a legal malpractice case, we addressed the constitutionality of the three year limitation period contained in General Statutes § 52-577, which contains almost identical language to § 52-584 and had the identical effect of barring the plaintiffs cause of action before it had accrued. We concluded that even though § 52-577 did limit a common-law right that existed in 1818, it did not restrict or abridge the cause of action because it merely established the time period within which the plaintiff could assert that right. Sanborn v. Greenwald, supra, 304-305.

Both here and in Sanborn, the plaintiffs questioned whether statutes of limitation that bar causes of action before they accrue are constitutional. Similar to § 52-577, § 52-584 does not, on its face, abridge or abolish the common-law action of negligence. The plaintiff has a right of redress that exists during the three year period prescribed by § 52-584. By analogy, if § 52-577 may constitutionally bar an action against an attorney for injuries arising from legal malpractice, an action that existed at common law, then § 52-584 also may survive such an attack.

The plaintiff argues that § 52-584 deprives him of his right to bring a claim of medical negligence without providing a reasonable alternative. Specifically, he argues that the application of § 52-584 entirely deprives him of his right to redress because it unconstitutionally bars his action before he is able to discover his injury.

“Reasonable conditions on a cause of action do not amount to a violation of the constitution. ... A strict and inflexible interpretation of article first, § 10, could affect the legislature’s ability to pass, enact and repeal laws. Such an encumbrance upon the legislature would freeze common law rights in perpetuity.” (Citation omitted; internal quotation marks omitted.) Id., 304. The plaintiff is not deprived entirely of his right to redress. His right to redress is limited to a specified period of time. The common-law right that the plaintiff claims was abridged by the application of § 52-584 is the right to bring an action in tort for medical malpractice against a hospital and a pathologist. Section 52-584 restricts the right to bring an action for medical negligence only to the extent that it restricts the time for bringing the action, which we conclude is reasonable, as we did relative to § 52-577 in Sanborn.

Our Supreme Court has “specifically determined that a lawsuit commenced more than three years from the date of the negligent act or omission complained of is barred by the statute oflimitations, § 52-584, regardless of whether the plaintiff had not or, in the exercise of care, could not reasonably have discovered the nature of the injuries within that time period. Stein v. Katz, 213 Conn. 282, 285, 567 A.2d 1183 (1989); Catz v. Rubenstein, 201 Conn. 39, 49-50, 513 A.2d 98 (1986); McDonald v. Haynes Medical Laboratory, Inc., 192 Conn. 327, 334, 471 A.2d 646 (1984).” Blanchette v. Barrett, supra, 229 Conn. 265. In light of our Supreme Court’s previous decisions, we cannot agree with the plaintiffs argument. A common-law cause of action may be limited by the statute of limitations, regardless of whether the cause of action was discovered or could have been discovered within the time prescribed.

The plaintiff claims that his right to bring a claim is protected by our Supreme Court’s definition of “injury” as contained in article first, § 10, of the constitution of Connecticut. Relying on Catz v. Rubenstein, supra, 201 Conn. 43-47, the plaintiff argues that our Supreme Court has defined “injury,” specifically in the context of § 52-584, to mean “actionable harm,” which accrues only when the plaintiff discovers the essential elements of his cause of action. The plaintiff misapplies Catz.

In Catz v. Rubenstein, supra, 201 Conn. 50, our Supreme Court specifically stated that its holding would “only affect causes of action not barred by the repose portion of § 52-584 which bars suit brought ‘more than three years from the [date of the] act or omission complained of.’ ” Here, we have a cause of action that is barred by the repose section of the statute of limitations, § 52-584; thus, the holding in Catz does not apply.

B

The plaintiff claims that application of the repose section of the statute of limitations, § 52-584, denies him the property right to bring a claim without due process in violation of our state constitution and the fourteenth amendment to the United States constitution. We decline to address that claim. Although the plaintiff does cite one case in his principal brief on that issue, the six sentences comprising his claim are inadequate. “Where a claim receives only cursory attention in the brief without substantive discussion, it is deemed to be abandoned.” (Internal quotation marks omitted.) In re Amanda A., 58 Conn. App. 451, 459, 755 A.2d 243 (2000). The plaintiffs claim is inadequately briefed and, therefore, is deemed abandoned.

C

The plaintiff finally argues that the repose section of the statute of limitations violates his equal protection rights as contained in article first, § 1, and article first, § 20, of the constitution of Connecticut, as amended by article twenty-one of the amendments, and the fourteenth amendment to the United States constitution. The plaintiff argues that the repose section of the statute of limitations, § 52-584, treats similarly situated victims of medical malpractice in a disparate fashion. Victims whose diseases have a long latency period, who may be barred from filing a claim if the malpractice is not discovered within three years, are treated differently from other tort victims. We are not persuaded.

“When a statute is challenged on equal protection grounds . . . the reviewing court must first determine the standard by which the challenged statute’s constitutional validity will be determined. . . . When a statutory classification impinges upon an inherently suspect class or affects a fundamental personal right, the statute is subject to strict scrutiny and is justified only by a compelling state interest. . . . Otherwise, a statute will stand if the classification bears a reasonable relation to a legitimate state interest.” (Citations omitted; internal quotation marks omitted.) Zapata v. Burns, 207 Conn. 496, 505, 542 A.2d 700 (1988).

The plaintiff asserts that our Supreme Court has declared that any right contained in article first of the constitution of Connecticut is fundamental and, therefore, the strict scrutiny standard of review applies, and the defendants’ burden is to demonstrate that the repose section of the statute of limitations, § 52-584, is necessary to advance a compelling state interest. We disagree.

“A right is fundamental for puiposes of equal protection analysis if it is explicitly or implicitly guaranteed by the constitution.” Id. The plaintiff’s claim does not implicate any explicit or implicit fundamental rights; thus, we employ the rational basis test in reviewing it. “We have never held . . . that a constitutional right of access to the courts automatically translates each and every claim that a litigant may raise into one invoking fundamental rights. It cannot seriously be argued that a statutory entitlement to sue for wrongful death of another is itself a fundamental or constitutional right. . . . The plaintiffs offer no reason why this principle should not apply equally to actions for personal injuries. In Ryszkiewsicz v. New Britain, [193 Conn. 589, 597-98, 479 A.2d 793 (1984)], we applied the rational basis test to a statute despite the plaintiffs claim that it must face strict scrutiny because it impinges on the fundamental right to recover damages for injuries from tortious acts, citing the Connecticut constitution, article first, § 10. We conclude, therefore, that the standard by which to determine the equal rights protection challenge to § 52-584a is the rational basis test.” (Citations omitted; internal quotation marks omitted.) Zapata v. Burns, supra, 207 Conn. 507; see also Keegan v. Aetna Life & Casualty Ins. Co., 42 Conn. App. 803, 808-809, 682 A.2d 132, cert. denied, 239 Conn. 942, 686 A.2d 120 (1996).

“The relevant inquiry is whether the classification and disparate treatment inherent in the statute of repose legislation bears a rational relationship to a legitimate state end and is based on reasons related to the accomplishment of that goal. . . . [T]he Fourteenth Amendment does not deny to States the power to treat different classes of persons in different ways. . . . The equal protection clause of that amendment does, however, deny to States the power to legislate that different treatment be accorded to persons placed by a statute into different classes on the basis of criteria wholly unrelated to the objective of that statute. A classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” (Citations omitted; internal quotation marks omitted.) Daily v. New Britain Machine Co., 200 Conn. 562, 577-78, 512 A.2d 893 (1986).

“Every presumption is to be given in favor of the constitutionality of the statute. . . . [C]ourts will assume that the legislature intended to accomplish a reasonable and rational result. . . . [Legislative enactments carry with them a strong presumption of constitutionality, and ... a party challenging the constitutionality of a validly enacted statute bears the heavy burden of proving the statute unconstitutional beyond a reasonable doubt.” (Citations omitted; internal quotation marks omitted.) Zapata v. Burns, supra, 207 Conn. 507-508.

Our analysis of this equal protection claim by the plaintiff is the same as our analysis of his first constitutional claim because the fundamental concern of both claims is the alleged disparate treatment given to plaintiffs who discover their injury after the three year limitations period. “[I]n areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection chailenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” (Internal quotation marks omitted.) Broadley v. Board of Education, 229 Conn. 1, 8-9, 639 A.2d 502 (1994). Even if we assume arguendo that the two categories of plaintiffs identified by the plaintiff are similarly situated with respect to the statute, and relying on our analysis of the plaintiffs first constitutional claim, we conclude that a rational basis does exist for that classification. Although it results in disparate treatment for those who do not discover their injury within the three year limitations period, the classification bears a reasonable relationship to the legislative goal of the repose section of the statute of limitations. Accordingly, § 52-584 is constitutional as applied to the plaintiff.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 52-584 provides in relevant part: “No action to recover damages for injury to the person . . . caused by negligence ... or by malpractice of a physician, surgeon . . . [or] hospital . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action ma,y be brought more than three years from the date of the act or omission complained of .. . .” (Emphasis added.) This appeal concerns only the second part of § 52-584, known as the repose section.

       Article first, § 1, of the constitution of Connecticut provides: “All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community.”
      Article first, § 10, of the constitution of Connecticut provides: “All courts shall be open, and every person, for an iqjury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

        Article first, § 20, of the constitution of Connecticut, as amended by article twenty-one of the amendments, provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his or her civil or political rights because of religion, race, color, ancestry, national origin, sex or physical or mental disability.”
      Section 1 of the fourteenth amendment to the United States constitution provides in relevant part that “[n]o state shall . . . deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

       The plaintiff also claimed that the court improperly permitted the hospital to file a reply, on the day of the summary judgment hearing, objecting to the plaintiffs memorandum of law in opposition to the hospital’s summary judgment motion. Although the court briefly referred to the reply in a footnote of its memorandum of decision, it did not rely on the assertions in the reply. In light of that fact and our plenary review rejecting the plaintiffs claims, we need not address that issue. Put another way, any impropriety in accepting the reply memorandum was harmless.

       The legal relationship between the hospital and Villa, an employee of Associates, is unclear from the record. The hospital and Associates had an agreement that Associates would provide a pathologist who would serve as medical director of the hospital’s department of pathology. The hospital was to employ all laboratory staff members; however, the director was expected to be involved in the recruitment, selection and decisions regarding the retention of such personnel. Salaries and benefits of Associates staff were similar to those of the rest of the hospital’s employees. The hospital provided all of the equipment, supplies and personnel for the pathology department.
      Associates maintained professional liability insurance for its pathologists. The director was responsible for the proper functioning of all laboratory sections, performance and reports of autopsies, interpretation of results in both clinical and anatomical pathology, and served as a consultant, without charge to the hospital, to the attending physicians. The agreement gave Associates the sole right to render pathology services to or on behalf of the hospital. In Associates’ reply to the hospital’s interrogatories, it denied that the agreement was in effect at the time of the 1986 report.

       The physician who performed the surgery, Julio Coelho, is not a party to this action.

       In the hospital’s brief and in oral arguments before this court, the hospital conceded that Parker was one of its employees when she issued the corrected report.

       The plaintiffs claims all are based on Associates’ misdiagnosis, and he does not differentiate between the defendants. Accordingly, we treat the hospital and Associates as one.

       General Statutes § 52-595 provides: “If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefor at the time when the person entitled to sue thereon first discovers its existence.”

       General Statutes § 52-577 provides: “No action founded upon a tort shall be. brought, but within three years from the date of the act or omission complained of.’'

       In Sanborn, we observed that the right to bring an action against an attorney existed at common law and could be “traced back to the English common law action of trespass on the case.” Sanborn v. Greenwald, supra, 39 Conn. App. 299. We further observed that “[a]t the time our constitution was adopted in 1818 . . . there was no statute of limitations that restricted this type of action .... In May, 1819, [however] a committee was appointed to examine the statute laws, and to recommend such alterations and provisions as should be necessary and expedient to render the statutes conformable to the constitution. ... In 1821, the committee reported to the legislature .... [Pursuant to the report, the legislature enacted] § 4 of title 59, entitled Limitations. An Act for the Limitation of Civil Actions, and of Criminal Prosecutions, which provided: No action of trespass on the case shall be brought but within six years next after the right of action shall accrue.” (Citation omitted; internal quotation marks omitted.) Id., 300.
      In deciding the constitutionality of General Statutes § 52-577, we relied on that language as evidence of the intent of the framers of the constitution, citing State v. Joyner, 225 Conn. 450, 462, 625 A.2d 791 (1993), as support for us to look to the laws enacted close to the time of the adoption of the constitution of 1818 to enhance our understanding of the original intent of the framers of the constitution. Sanborn v. Greenwald, supra, 39 Conn. App. 301.

         Roundhouse Construction Corp. v. Telesco Masons Supplies Co., 168 Conn. 371, 376, 362 A.2d 778, vacated, 423 U.S. 809, 96 S. Ct. 20, 46 L. Ed. 2d 29 (1975), aff'd on remand, 170 Conn. 155, 365 A.2d 393, cert. denied, 429 U.S. 889, 97 S. Ct. 246, 50 L. Ed. 2d 172 (1976), citing Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233, 17 L. Ed. 531 (1864).

       In this case, the plaintiff did not argue for greater protection under the state equal protection provision than under its federal counterpart. Where, as here, “a party does not provide an independent analysis asserting the existence of greater protection under the state constitutional provision than its federal counterpart . . . the federal equal protection standard is considered prevailing for the purposes of our review of both the state and federal equal protection claims . . . .” Barton v. Ducci Electrical Contractors, Inc., 248 Conn. 793, 812-13 n.15, 730 A.2d 1149 (1999).


source: Caselaw Access Project

author: LANDAU, J.

license: Public Domain

text:
    ROGER GOULD ET AL. v. MELLICK AND SEXTON NORMAN KEITH ET AL. v. MELLICK AND SEXTON
    (AC 20228)
    (AC 20230)
    Landau, Mihalakos and O’Connell, Js.

      Argued January 22
    officially released October 30, 2001

      Robert B. Cohen, with whom were Steven H. Solomson and, on the brief, James Stedronsky and Julia B. Morris, for the appellants (plaintiffs in each case).

      David J. Robertson, for the appellee (defendant in both cases).
   Opinion

LANDAU, J.

In these consolidated cases, the plaintiffs, investors in a failed real estate development venture, appeal from the summary judgments rendered in favor of the defendant, Mellick and Sexton, a law firm. On appeal, the plaintiffs claim that the court improperly granted the defendant’s motions for summary judgment by concluding that (1) the absence of an attorney-client relationship was fatal to the plaintiffs’ negligence claims and (2) the defendant was not a party to the escrow agreement. During oral argument before us, we raised the issue, sua sponte, of whether the trial court had authority to render summary judgment under the circumstances of these cases. We conclude that the court lacked authority to render summary judgment in these circumstances and reverse the judgments of the trial court.

These appeals concern the failure of a real estate development venture in which the plaintiffs lost significant sums of money. The defendant served as legal counsel to the general partner and special limited partner with respect to the sale of interests in Wildomar Square Associates Limited Partnership (Wildomar). The purpose of Wildomar was to develop thirty-two acres of real property in Rancho, California.

As in all motions for summary judgment, the facts at issue are those appropriately alleged in the pleadings. Plouffe v. New York, N.H. & H.R. Co., 160 Conn. 482, 488-89, 280 A.2d 359 (1971). Each count contained more than sixty paragraphs of allegations, not including sub-paragraphs. In summary, the plaintiffs alleged that the defendant was to ensure that the Wildomar offering and sale complied with securities regulations. To this end, the defendant prepared the private placement memorandum, various preliminary summaries of the offering, a tax opinion contained in the memorandum, a securities compliance opinion, investor notes, a partnership agreement, a subscription agreement, an escrow agreement, a July 26, 1989 loan and security agreement, and other documents needed to secure financing for Wildomar.

Wildomar expected to raise $4.5 million from the sale of forty-five limited partnership units at a cost of $100,000 each. To purchase a unit, a buyer had to pay $10,000 in cash on the date of subscription and to sign a promissory note in the amount of $90,000 to be delivered to Wildomar when it obtained additional funds in the amount of $4.05 million. The notes were to serve as collateral for the loan. Mechanics and Farmers Savings Bank, FSB (escrow agent), was to hold the cash and notes on behalf of the plaintiffs until all of the units were sold.

On the basis of the information and representations made in the placement memorandum, the plaintiffs understood that the escrow agent would not release the proceeds from the sale of the units until Wildomar had secured the $4.05 million loan. The plaintiffs also understood that if all of the units were not sold or if Wildomar could not obtain the $4.05 million loan, the cash and notes would be returned to them.

Wildomar, however, was not able to sell forty-five units or to obtain the $4.05 million loan. Nonetheless, on or about July 26, 1989, Wildomar, acting through its general and special limited partners, and the defendant authorized the escrow agent to deliver the proceeds of the offering to Wildomar.

The Wildomar offering transaction was not consummated by the date (January, 1989) disclosed in the offering memorandum, and the closing date was extended. Consequently, Wildomar incurred additional debt. On or about July 26, 1989, Wildomar assigned some of the plaintiffs’ notes in the aggregate amount of $2,047,500 to the escrow agent in return for a loan in that amount. The defendant held the balance of the notes, including notes executed by the plaintiffs, on behalf of Wildomar. With a loan of only $2,047,500, Wildomar did not have sufficient capital to achieve its purpose. Wildomar lost the real property, and the plaintiffs lost their investment. Without informing the plaintiffs, Wildomar, the general partner and the defendant released the funds in escrow, which were used to pay the fees of the general partner, its principals and the defendant. Wildomar and its general and limited partners paid the defendant fees that were twice the amount estimated in the offering memorandum.

The plaintiffs alleged that the offering memorandum, as drafted by the defendant, contained many representations of fact designed to encourage them to purchase units in Wildomar and that the statements were false statements of material facts. As of July 26, 1989, the representations in the offering materials were false, and Wildomar failed to disclose numerous material facts to the plaintiffs. The plaintiffs further alleged that the defendant acted as legal counsel to Wildomar and provided assistance in connection with the offering and the release of the proceeds from the sale of the units, including the release of the notes from escrow. The plaintiffs did not know until July 15,1991, that Wildomar had sought bankruptcy protection. The plaintiffs claim that the defendant fraudulently concealed from them the amount and extent of the debt and that the real property was in foreclosure.

With respect to the negligence counts, the plaintiffs alleged that the defendant knew or was reckless in not knowing that Wildomar was unable to comply with the terms of the offering memorandum and the escrow agreement. The defendant allegedly knew of false representations and omissions in the offering memorandum. The plaintiffs claimed that the defendant owed them a duty of care to ensure that Wildomar complied with securities regulations and that the statements in the offering memorandum were true and accurate. The plaintiffs further claimed that the defendant assisted in the release of the escrow funds and knew or was reckless in not knowing, as represented in the offering memorandum, that Wildomar was unable to secure a loan of $4.05 million, that zoning approval would not be available by the end of 1989, that the development of the property could not be completed by the end of 1990, that the real property could not be sold by the end of 1989 for a price equal to or greater than the price paid by the plaintiffs, that between the date of the offering memorandum and the date on which the funds in escrow were released there were numerous significant and material changes as to statements contained in the offering materials, that no more than thirty-five units had been sold and that Wildomar failed to comply with certain regulations of the Securities and Exchange Commission.

The plaintiffs further alleged that the defendant owed them a duty of care and violated that duty by failing to inform them of the untrue and inaccurate statements in the offering memorandum and of the change of circumstances between the time of the offering memorandum and the closing of the partnership, by failing to issue a supplemental memorandum and by permitting the funds to be released from the escrow account.

As to the breach of contract claims, the plaintiffs alleged that they were third party beneficiaries of the escrow agreement and the defendant breached its obligation to them under the agreement. The purpose of the escrow agreement was to protect the plaintiffs by ensuring that the funds and notes were not released from the escrow account until all of the conditions of the offering memorandum were met. The escrow agreement provided that the escrow agent could not release the funds and notes until Wildomar and the defendant directed it to do so. The escrow agent was to be directed either to release the funds to Wildomar or to return them to the prospective purchasers, the plaintiffs. The plaintiffs claimed that as a result of the defendant’s breach of its duty of care as to the offering memorandum and the escrow agreement, the plaintiffs suffered substantial damages.

In 1995, the two groups of plaintiffs commenced separate actions against the defendant. Following some refinement of the pleadings and limited discovery, the defendant filed motions to strike the negligence and breach of contract counts. In its motions to strike, the defendant claimed that the plaintiffs failed to state a cause of action (1) sounding in negligence because the defendant owed no duty to the plaintiffs as a matter of law or (2) sounding in contract because the defendant was not a party to the escrow agreement. In the Gould action, the trial court, Barry, J., denied the motion to strike the negligence and breach of contract counts. The trial court, Rittenband, J., in the Keith action also denied the motion to strike, adopting the reasoning of Judge Barry’s decision in the Gould action. The plaintiffs did not amend their negligence and contract claims subsequent to the rulings on the motions to strike.

The cases were then consolidated and transferred to the complex litigation docket and came before the trial court, Aurigemma, J., for scheduling purposes. During the scheduling conference, the court and the parties agreed that before the time and expense of discovery was undertaken, the parties should file cross motions for summary judgment. Only that portion of the defendant’s motions for summary judgment claiming that the plaintiffs’ negligence and contract counts failed to state causes of action because the defendant did not owe the plaintiffs a duty and because the defendant was not a party to the escrow agreement are relevant here. The court denied the plaintiffs’ motions for summary judgment and granted the defendant’s motions for summary judgment. The plaintiffs appealed.

During oral argument before this court, we announced our concerns as to the court’s granting summary judgment with respect to only one issue raised in each of the counts. We thus ordered the parties to submit supplemental briefs addressing the question: “Did the trial court have the authority to render summary judgment under the circumstances of this case? See Practice Book §§ 17-44 through 17-50.” In resolving these appeals, we are concerned only with the propriety of the court’s granting of the motions for summary judgment under the factual and procedural posture here. We do not reach the merits of the positions that the parties took with respect to the defendant’s motions for summary judgment.

We first set forth the applicable standard of review of a trial court’s ruling on motions for summary judgment. “Summary judgment shall be rendered forthwith if the pleadings, affidavits and 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. Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995), quoting Practice Book § 384, now § 17-49. The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. . . . When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. . . . SLI International Corp. v. Crystal, 236 Conn. 156, 163, 671 A.2d 813 (1996).” (Internal quotation marks omitted.) Dept. of Social Services v. Saunders, 247 Conn. 686, 696-97, 724 A.2d 1093 (1999). Where “[tjhe trial court was presented with cross motions for summary judgment based on undisputed facts . . . our review is plenary and we must determine whether the court’s conclusions are legally and logically correct and are supported by the record.” (Internal quotation marks omitted.) Id., 697. In the present case, the trial court was presented with cross motions for summary judgment; however, the facts were disputed. Therein lies the procedural glitch.

Practice Book § 17-49 provides that “[t]he judgment sought shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Emphasis added.) “The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.” (Internal quotation marks omitted.) D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980). In ruling on a motion for summary judgment, the court must make two determinations: first, that there are no genuine issues of material fact; and second, that the moving party is entitled to judgment as a matter of law. Practice Book § 17-49; Miller v. United Technologies Corp., 233 Conn. 732, 745, 660 A.2d 810 (1995).

“A motion for summary judgment must be supported and opposed by affidavits and other available documentary proof. . . . [Affidavits filed in connection with a motion for summary judgment must be made on personal knowledge, must set forth facts which would be admissible in evidence, and must show that the affiant is competent to testily to all matters stated in the affidavit. . . . Mere statements of legal conclusions or that an issue of fact does exist are not sufficient to raise the issue.” (Citations omitted; internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 376-77, 260 A.2d 596 (1969).

In support of its motions for summary judgment, the defendant submitted numerous documents, including but not limited to the offering memorandum, a copy of the promissoiy note used by the purchasers, a map and an affidavit of Dorrance Sexton, Jr., an attorney licensed to practice in the state of Connecticut. The affidavit is two pages long, consisting of seven brief paragraphs. Sexton did not attest that he had personal knowledge of the matters stated in the affidavit or as to his relationship to the subject litigation or the parties. The affidavit concerns the investor subscriptions and the release of the escrow funds. Sexton reviewed the investor subscriptions to determine their purpose, was satisfied that they were received on behalf of Wildomar and directed the escrow agent to release the funds. The last paragraph of the affidavit is a conclusion and not an assertion of fact. The affidavit does not assert facts related to the plaintiffs’ negligence claim.

In recent years, this court has noted that parties increasingly resort to motions for summary judgment when the proper procedural vehicle is a motion to strike. “There is a substantial difference between a motion for summary judgment and a motion to strike. The granting of a defendant’s motion for summary judgment puts the plaintiff out of court as it did in this case. See Practice Book § 17-49. The granting of a motion to strike allows the plaintiff to replead his or her case. See Practice Book § 10-44.” Rivera v. Double A Transportation, Inc., 248 Conn. 21, 38 n.3, 727 A.2d 204 (1999) (Berdon, J., dissenting).

Some trial courts appear inclined to grant motions for summary judgment apparently because the parties agree to resolve their differences by means of a motion for summary judgment; see Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 32 n.17, 699 A.2d 964 (1997); although the rules of practice do not provide for it and the practice has not received explicit approval from this court; see Burke v. Avitabile, 32 Conn. App. 765, 630 A.2d 624, cert. denied, 228 Conn. 908, 634 A.2d 297 (1993); or our Supreme Court. At the trial level, everyone seems eager to move the docket in this fashion until one of the parties discovers that it overestimated its position and brings an appeal stuck in the morass of a procedural quagmire.

In reviewing the history of summary judgment, it is easy to see its utility in avoiding the expense of litigation in cases where the factual issues are relatively simple, but generally it is an inappropriate way to conclude complex litigation. Summary judgment developed in the common law to meet the needs of the mercantile world. E. Stephenson, Connecticut Civil Procedure (3d Ed. 1997) § 100 (b), p. 293. “The old courts merchant provided an expeditious means of debt collection which were retained in the legal systems of the continent and then transplanted to Scotland. England yielded to the pressure and ultimately adapted an act entitled ‘Summary Procedure on Bills of Exchange Act,’ also known as Keatings Act, in 1855. Under this Act, the holder of a bill could obtain a writ granting him judgment unless the defendant filed an affidavit disclosing a good defense. The procedure was later extended to other actions involving simple issues answerable in unequivocable terms.” Id., p. 294.

“Connecticut first adopted a rule allowing summary judgment in 1928. The procedure was allowed only when the damages claimed were in the nature of a ‘debt,’ as that term was used at common law, a liquidated sum arising from contract, a specialty, a judgment or a statute. It could also be used for the recovery of specific chattels and for certain routine actions involving real estate. The procedure was thus confined to actions where the evidence involved was substantially documentary, where issues could be simply named and where categorical answers were possible. Because the relief asked was a liquidated sum or was otherwise certain in form, final judgment could be entered on the motion without need for further proceedings. ... It was available to defendant as well as to plaintiff and required production of affidavits showing the factual basis of a claim or defense, not merely an honest belief that such existed.” Id.

In ruling on a motion for summary judgment, the court must decide whether there is a genuine issue of material fact. If there are issues of fact, the court may not resolve them without giving the parties a full hearing. See Town Bank & Trust Co. v. Benson, 176 Conn. 304, 307, 407 A.2d 971 (1978); McColl v. Pataky, 160 Conn. 457, 459, 280 A.2d 146 (1971). Summary judgment is not appropriate in cases involving mixed questions of law and fact, such as negligence actions. Spencer v. Good Earth Restaurant Corp., 164 Conn. 194, 198-99, 319 A.2d 403 (1972). Summary judgment should not be used in cases that are complex; Miller v. United Technologies Corp., supra, 233 Conn. 752; in cases that concern important public issues or questions of inference as to motive or intent; Nolan v. Borkowski, 206 Conn. 495, 505, 538 A.2d 1031 (1988); see Picataggio v. Romeo, 36 Conn. App. 791, 793-94, 654 A.2d 382 (1995); or in ones that involve subjective feelings and reactions. Connell v. Colwell, 214 Conn. 242, 251, 571 A.2d 116 (1990); United Oil Co. v. Urban Redevelopment Commission, supra, 158 Conn. 375; see E. Stephenson, Connecticut Civil Procedure, supra, § 100 (c), pp. 295-96. Modem summary judgment procedure was adopted in Connecticut in 1963 and was modeled on the Federal Rules of Appellate Procedure. See Plouffe v. New York, N.H. & H.R. Co., supra, 160 Conn. 487; United Oil Co. v. Urban Redevelopment Commission, supra, 376.

Although there may be instances where complex litigation may be resolved by means of summary judgment, the teachings of our Supreme Court instruct us that summary judgment is generally disfavored in complex cases. Because these appeals concern complicated financial transactions, the interpretation of various documents, the intent and motives of the parties as well as an issue of public policy, the trial court should not have resolved the dispute by means of summary judgment. Furthermore, our review of the documents and the court’s memorandum of decision reveals that the court went beyond determining whether there were genuine issues of material fact and actually decided certain factual issues. For these reasons, we reverse the judgments of the trial court.

The judgments are reversed and the cases are remanded for further proceedings.

In this opinion the other judges concurred.

       The plaintiffs in the first case are Roger Gould, Gerard A. Thibert, Manage D. Nissanka, Srimathie L. Nissanka, A. Vandiveer Strait, Jr., Herman D. Marggraff, Jr., Daniel F. Shanahan, Merrill L. Nassau, Robert J. Miller, Leon M. Lehrer, Jan G. Lehrer, Michael W. Dzen, Jr., G. Richard Dundas, Lauren A. Daman, Mary Jean Sadlak, Hasmukh H. Shah, Thomas C. Morrier, Arthur Ashman, Lawrence J. Andrus, Marcia. T. Andrus, Steven L. Bertone, David L. Griffith, Michele Griffith, Patrick J. Hallisey, Paul R. Mitchell, Grace P. Mitchell, Irene Petsa, Suresh M. Shah, Richard J. Shanahan, Margaret L. Shanahan, Albert E. St. Germain, Mary E. St. Germain, J. John Straub, Judith E. Straub, Eduardo M. Velez, Consuelo Velez, Patrick J. Fox, Michael W. Dzen, Sr., Susan J. Fox, Daniel Arutt and Barbara Arutt. We refer in this opinion to the first case as the Gould action.
      The plaintiffs in the second case are Jonathan C. Keith, Ernesto G. Beltran, Mary Jane Beltran, Ronald P. Kapitan, Lucinda A. Kapitan, Linda M. Singer, Thomas J. Godar, Mary K. Godar, Carlo M. Buendo, Anne R. Buendo, Peter Roisman, Jeanne B. Merola, Paul R. Yoder, James Dougherty, Maureen A. Dougherty, Neil Roth, Kim D. Roth, Jack Vitaz, William P. McCauley, James W. Doyle, Laurence A. Lederman, Marion G. Lederman, Alfredo F. Nino, Louis D’Angelo and Eugene Lassere. We refer in this opinion to the second case as the Keith action.

       The parties submitted supplemental briefs to address our question.

       Initially, we questioned whether the court’s judgments were final because they addressed only one of the legal or factual issues raised in each of the counts. We conclude that the judgments were final. Without a duty, there can be no cause of action in negligence. If the defendant was not a party to the escrow agreement, there can be no breach of contract claim.

       Each operative complaint contained three counts. The only counts at issue in the appeals sound in negligence and breach of contract, as the plaintiffs have not challenged the judgments rendered as to their claims under the Connecticut Uniform Securities Act, General Statutes § 361>-2 et seq.

       By way of example, the plaintiffs alleged, among other things, that the offering memorandum contained the following misrepresentations, among others: (1) Wildomar and its general partner have contracted and received an environmental report for the property; (2) the property would be rezoned for the intended commercial development as described by the end of 1989; and (3) if the general partner elected not to develop Wildomar, the real property would be sold by the end of 1989.

       These parties have a prior history of litigation in federal court concerning the same subject matter. None of that history is relevant to our resolution of the issues on appeal here, except to note that the plaintiffs settled their claims against the general and special limited partners, who withdrew their attorney-client privilege, enabling the plaintiffs to obtain the defendant’s files.

       The defendant’s motions to strike addressed other counts in the plaintiffs’ complaints, but those issues are not relevant on appeal.

       Judge Barry based his decision in pari, on the rule our Supreme Court articulated in Zamstein v. Marvasti, 240 Conn. 549, 692 A.2d 781 (1997). “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 violated that duty in the particular situation at hand. . . . We have stated that the 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 fee 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.” (Citation omitted; internal quotation marks omitted.) Id., 558.
      In applying the first prong of the Zamstein test, the court, citing Dean v. Hershowitz, 119 Conn. 398, 408, 177 A. 262 (1935), reasoned that the existence of a legal duty is not determined only by fee existence of a contractual relationship between the parties, but that it may also arise in situations where there is no such relationship. The court concluded that the defendant was placed in such a position with regard to the plaintiffs and that a reasonable person would have recognized that the failure to use ordinary care and skill in preparing the offering memorandum would result in a loss for the plaintiffs.
      As to the second prong of Zamstein, the court noted that courts look principally to whether fee primary or direct purpose of the transaction was to benefit the third party. See Krawczyk v. Stingle, 208 Conn. 239, 245, 543 A.2d 733 (1988). The court noted that the plaintiffs were the intended beneficiaries of the defendant’s services to Wildomar. The court also was mindful feat “[a] central dimension of the attorney-client relationship is the attorney’s duty of [ejntire devotion to the interest of fee client.” (Internal quotation marks omitted.) Id., 246. A court must avoid “any rule feat would interfere with the attorney’s primary duty of robust representation of the interests of his or her client.” (Internal quotation marks omitted.) Jackson v. R.G. Whipple, Inc.., 225 Conn. 705, 728, 627 A.2d 374 (1993). The court concluded, however, that the policy considerations involved in this litigation would not be undermined by imposing liability under the factual circumstances of this case.
      The trial court also denied the motion to strike the breach of contract count, concluding that under the allegations of the complaint, presented with proper evidence, a fact finder could conclude that there was a fiduciary relationship between the plaintiffs and the defendant and that it was a question of fact as to whether the defendant had breached that duty.
      This appeal does not require us to determine whether the trial court properly denied the defendant’s motion to strike, and we offer no opinion in that regard. The court’s memorandum of decision, however, provides an informed view of the legal and factual issues involved in this case.

       Although the defendant’s motions for summary judgment claimed that the plaintiffs’ negligence and contract counts failed to state causes of action, the arguments put forth in its memorandum of law demonstrate that the defendant’s claims stand on two different grounds. A motion to strike challenges the legal sufficiency of a complaint to state a cause of action. That is, assuming that the well pleaded facts are true, the court must determine whether Connecticut recognizes a cause of action based on the facts alleged. See Quimby v. Kimberly Clark Corp., 28 Conn. App. 660, 664, 613 A.2d 838 (1992). With respect to the negligence counts, the defendant argued that Connecticut does not recognize a negligence action against an attorney brought by someone who is not a client. A motion to strike is the appropriate procedural vehicle for such a claim. As to the plaintiffs’ contract actions, however, the defendant argued that the claims did not state causes of action because the defendant was not a party to the escrow agreement. That argument does not attack the validity of the counts to state causes of action, but rather challenges whether one of the facts alleged is true, which invokes the standard for summary judgment, e.g., whether there are any genuine issues of material fact.

       The plaintiffs sought summary judgments as to the defendant’s special defenses and the issue of whether the defendant may be liable as an aider and abetter under the Connecticut Uniform Securities Act, General Statutes § 36b-2 et seq. Those issues are not part of these appeals.

       Judge Aurigemma did not explain why she elected to rule on issues that previously had been determined. There was no material change in circumstances between the time the defendant’s motions to strike were denied and the granting of its motions for summary judgment, which functioned essentially as a motion to strike. The law of the case is still a viable doctrine in this jurisdiction. See State v. Casanova, 255 Conn. 581, 589 n.8, 767 A.2d 1189 (2001); Knoblaugh v. Marshall, 64 Conn. App. 32, 36-37, 779 A.2d 218, cert. denied, 258 Conn. 916, 782 A.2d 1243 (2001), citing Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982) (“ ‘[wjhere a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance’ ”).

        In Burke, this court acknowledged that Boucher Agency, Inc. v. Zimmer, 160 Conn. 404, 409, 279 A.2d 540 (1971), suggests that a motion for summary judgment is the way to test the legal sufficiency of a complaint after the pleadings are closed. This court concluded, however, thatUowcheris anomalous and limited to the unusual facts and procedural posture of that case. Burke v. Avitabile, supra, 32 Conn. App. 772 n.9. At the time Boucher was decided, a motion for summary judgment could be filed only when all of the pleadings were closed. Now, a motion for summary judgment can be filed at any time. In the context of the present appeals, this court notes that Boucher contains an interesting and informative historical discussion and differentiation between a judgment on the pleadings, a demurrer and a motion for summary judgment as they existed at that time. Boucher Agency, Inc. v. Zimmer, supra, 408-409.

       See United Oil Co. v. Urban Redevelopment Commission, supra, 158 Conn. 366. In United Oil Co., our Supreme Court held: “This case is one of unusual complexity further complicated by the methods employed by the parties to secure an adjudication of the controversies among them — an action for a declaratory judgment decided on motions for summary judgment. Unfortunately, it serves as another illustration of the truism that a shortcut is not necessarily a more speedy and safe route than the established and traditional path.” Id.

       “It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given to their testimony can be appraised.” (Internal quotation marks omitted.) United Oil Co. v. Urban Redevelopment Commission, supra, 158 Conn. 376.

       The simple fact that these cases were consolidated on the complex litigation docket might have given the parties some indication that the claims were not appropriate for summary judgment.

       For example, the court found that the defendant took on no duties to the plaintiffs. The complaints allege that the defendant drafted the promissory notes that the purchasers of the units were required to sign. The court also found, on the basis of the language of the escrow agreement, that the defendant assumed no obligation to the plaintiffs. The plaintiffs alleged that the escrow account was for their benefit and the funds were not to be released until the defendant directed the escrow agent to release the funds.


author: O’CONNELL, J.

text:
    LISA MAREK v. WAYNE GOING
    (AC 20936)
    Schaller, Flynn and O’Connell, Js.

      Argued June 12
    officially released October 30, 2001

      Brian W. Prucker, for the appellant (plaintiff).

      Todd W. Whitford, with whom, on the brief, was Jack G. Steigelfest, for the appellee (defendant).
   Opinion

O’CONNELL, J.

In this negligence action, the plaintiff appeals from the judgment, rendered following a jury trial, in favor of the defendant. The plaintiff claims that the trial court improperly failed to instruct the jury on (1) the duty owed to a helpless person and (2) the duty owed to a person over whom the defendant had assumed control. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. It was a dark and stormy night. It had been snowing since noon, and all the principals in this scenario, some of whom had been drinking alcoholic beverages, were gathered in the defendant’s residence. At about 10 p.m., the defendant went outside to resume clearing the snow from his driveway with a backhoe equipped with a bucket loader. When the plaintiff came out of the house, she saw the defendant, her boyfriend at the time, in the cab of the backhoe with another woman. She failed to observe that another person, a male, was also in the cab. The plaintiff became jealous and upset and ran out into the snow wearing only a T-shirt, jeans and sneakers.

The plaintiff planted herself in front of the defendant’s moving backhoe, forcing him to bring it to a stop. The defendant shouted to her to get out of the way, but instead she stepped into the bucket that was positioned about six inches above the ground. The plaintiff was shouting obscenities at the defendant because she was angry with him, and he was shouting at her to get out of the bucket. She refused to do so. In an effort to get her to leave the bucket, the defendant slowly raised it about three feet and then lowered it to the ground while continuing to yell at her to get out. The defendant raised and lowered the bucket three times, each one higher than the preceding time, but each time then lowered it back to the ground to give the plaintiff an opportunity to step out. When the bucket eventually reached about six feet in the air and was motionless, the plaintiff either jumped or fell from the side of it, sustaining the injuries that are the subject of this action.

At trial, the plaintiff filed written requests that the court instruct the jury pursuant to 2 Restatement (Second), Torts §§ 324 and 314A (1965). The court denied both requests and instructed the jury on conventional negligence and comparative negligence. The jury found the defendant 45 percent negligent and the plaintiff 55 percent negligent and, accordingly, returned a defendant’s verdict. Additional facts are included in the analysis of the following issues.

I

Section 324 of the Restatement (Second) recites the obligations of a person who takes charge of a helpless individual. The plaintiff relies heavily on Coville v. Liberty Mutual Ins. Co., 57 Conn. App. 275, 748 A.2d 875, cert. granted, 253 Conn. 919, 755 A.2d 213 (2000) (appeal withdrawn March 30, 2001). On appeal, the plaintiff argues that she was a “helpless” person because she was intoxicated and compares her circumstances to those of the plaintiff in Coville, who was found to be helpless because of intoxication. There is a vast difference between the condition of the plaintiff in Coville and the plaintiff’s condition in this case. In Coville, the plaintiff had consumed alcohol to the point of being semiconscious and completely unable to care for herself. Id., 277. At a hospital emergency room, the Coville plaintiff was found to have a blood alcohol content of 0.38 percent.

In the present case, although there was evidence that the plaintiff had consumed alcohol, there was no evidence that she was semiconscious or in any other way helpless. To the contrary, the plaintiff herself testified that she was not intoxicated at the time. It is disingenuous for the plaintiff to testify that she was not intoxicated and then claim the benefit of a rule that would assist her only if she was intoxicated to the point of helplessness. In oral argument before this court, the plaintiffs counsel frequently referred to the plaintiff as being impaired, as opposed to referring to her as being intoxicated. He also conceded that the evidence did not show that she was intoxicated, but only that she had consumed six beers over the period of five hours. The evidence does not support a conclusion that the plaintiff was helpless due to intoxication.

Additionally, the plaintiff claims that because she had no access to the bucket controls, she became unable to help herself once the bucket was elevated. Section 324 of the Restatement (Second), however, refers to a person who is already helpless when the defendant takes control of her. The plaintiff in Coville was semiconscious and indisputably helpless at the time that the tortfeasor had taken her into custody. She did not become helpless by virtue of any act of the tortfeasor after he assumed control of her. In the present case, the plaintiff was not helpless when she stepped into the bucket.

The court, therefore, properly declined to charge the jury in accordance with § 324 of the Restatement (Second).

II

The plaintiff also claims that the court improperly declined to charge the jury pursuant to § 314A of the Restatement (Second). This section creates a duty to aid or protect an individual who is taken into custody under circumstances such as to deprive him of his normal opportunities for protection. The issue here is whether the defendant took the plaintiff into custody so as to deprive her of her normal opportunities for protection.

The plaintiff again relies on Coville v. Liberty Mutual Ins. Co., supra, 57 Conn. App. 275. Coville is equally unavailing on this issue. It is easily distinguished on the facts. In Coville, the tortfeasor “took physical custody of the plaintiff against her will by physically taking her to his truck, lifting her inside and forcing her to remain by closing the door each time she opened it.” Id., 282-83.

By contrast, in the present case, the defendant did not take the plaintiff into custody by putting the plaintiff into the bucket against her will; she voluntarily stepped into it. In fact, the evidence is clear that the defendant did not want the plaintiff in the bucket, that he repeatedly yelled at her to get out of it, and that, on several occasions, he lowered the bucket to the ground so that she could step out. There is no evidence that the plaintiff demanded to be let out. The only evidence is that the plaintiff apparently insisted on remaining in the bucket contrary to the defendant’s requests.

Lifting the bucket while the plaintiff was in it may have breached a duty of reasonable care that the defendant owed to the plaintiff, but that was ordinary negligence, and the jury did not absolve the defendant from all ordinary negligence. It found him 45 percent negligent. The facts of the present case would not permit a reasonable jury to find that the defendant had taken custody of the plaintiff by depriving her of her usual opportunities for protection. She had those opportunities and repeatedly declined to take advantage of them.

Furthermore, in her complaint, the plaintiff alleged only that she “was riding in or on the bucket.” She did not allege that she had been placed in the bucket or had been forced into it, nor did she allege that the facts gave rise to a special relationship requiring care beyond that of reasonable conduct. Her complaint set forth a straightforward, traditional negligence claim, and the court properly instructed the jury on each of her claims of negligence.

Because the plaintiff did not plead the existence of a special relationship, i.e., custody of a helpless person, the defendant could not respond or prepare his case to defend against such a claim.

“It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of [her] complaint.” (Internal quotation marks omitted.) Normand Josef Enterprises, Inc. v. Connecticut National Bank, 230 Conn. 486, 496, 646 A.2d 1289 (1994). Although the modem trend is to constme pleadings broadly rather than narrowly and technically, they must give notice of the facts claimed and the issues to be tried. Id.

In Coville, the plaintiff alleged that “her injuries were caused by [the tortfeasor’s] negligence in forcing her . . . to remain [in his tmck] against her wishes . . . .” Coville v. Liberty Mutual Ins. Co., supra, 57 Conn. App. 283. “Practice Book § 10-4 provides that ‘[i]t is unnecessary to allege any promise or duty which the law implies from the facts pleaded.’ ” Id. The complaint in the present case, unlike in Coville, did not allege any facts implying a duty arising out of taking custody of a helpless person.

“The court has a duty to submit to the jury no issue upon which the evidence would not reasonably support a finding.” (Internal quotation marks omitted.) Goodmaster v. Houser, 225 Conn. 637, 648, 625 A.2d 1366 (1993). The facts here do not support a charge under §§ 314A and 324 of the Restatement (Second), and, accordingly, the court properly refused to give such a charge to the jury.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiff voluntarily withdrew a second count alleging recklessness, and, at the close of the plaintiffs case-in-chief, the trial court directed the verdict in the defendant’s favor as to count three, which alleged an intentional tort. The plaintiff does not claim that the directing of the verdict was improper.

       The plaintiff filed the following request to charge concerning § 324 of the Restatement (Second): “It is also the law of this state that one who voluntarily takes charge of a helpless person must exercise reasonable care for her welfare and safety. It is for you, therefore, to determine if the plaintiff Lisa Marek was a helpless person at the time of this incident, and whether the defendant Wayne Going took charge of her voluntarily when he raised her up in the bucket of his backhoe. If you find that she was a helpless person, and if you find that the defendant assumed charge or custody of her, you shall determine whether he then took reasonable care to protect her safety. If after finding that the plaintiff was a helpless person and after finding that the defendant assumed charge or custody of her you then find that he did not take reasonable care for her safety, you shall find the defendant negligent and shall turn to the issue of damages. Coville v. Liberty Mutual Ins. Co., 57 Conn. App. 275 [748 A.2d 875, cert. granted, 253 Conn. 919, 755 A.2d 213] (2000) [appeal withdrawn March 30,2001]; [2] Restatement (Second), Torts § 324 [1965].”

       The plaintiff filed the following request to charge concerning § 314A of the Restatement (Second): “It is the law of this state that one who is required by law or who voluntarily takes custody of another under circumstances such as to deprive the other of his or her normal opportunities for protection is under a special duty to the other. It is for you to determine whether the defendant Wayne Going was required by law or voluntarily took custody of the plaintiff Lisa Marek so as to deprive her of her normal opportunities for protection when he raised the bucket of the backhoe so as to create a duty on his part to protect her. It is for you to determine whether when [the defendant] raised the bucket, he did so against [the plaintiffs] wishes and, in doing so, whether he assumed a special relationship toward her wherein he would be required to carefully return her to the ground and to refrain from shaking the bucket. If you find that the defendant. . . assumed such a special relationship and that he did not then take special care in returning her to the ground, you shall find that he was negligent and turn to the issue of damages. Coville v. Liberty Mutual Ins. Co., 57 Conn. App. 275 [748 A.2d 875, cert. granted, 253 Conn. 919, 755 A.2d 213] (2000) [appeal withdrawn March 30,2001]; [2] Restatement (Second), Torts § 314A [1965].”

       2 Restatement (Second), supra, § 324, p. 139, titled, “Dufy of One Who Takes Charge of Another Who is Helpless," provides in relevant part: “One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure 1he safety of the other while within the actor’s charge . . . .” (Emphasis added.)

       The plaintiff in Coville brought an underinsured motorist claim against Liberty Mutual Insurance Company pursuant to a policy that it had issued. The plaintiff sustained injuries while a passenger in an underinsured vehicle.
      The appeal to the Supreme Court was withdrawn prior to a decision from that court.

        Coville v. Liberty Mutual Ins. Co., Conn. Appellate Court Records & Briefs, October Term, 1999, Appendix, Appellant’s Brief, p. A-2.

       A blood alcohol content (BAC) of 0.38 percent refers to a ratio of alcohol in the blood that is thirty-eight hundredths of 1 percent of alcohol by weight. For purposes of comparison, a person is deemed under the influence of alcohol to the extent 1hat he may not operate a motor vehicle if his BAC is ten-hundredths of 1 percent (0.10 percent) or more of alcohol by weight. General Statutes § 14-227a (a).

       The plaintiffs counsel argued to the trial court: “I don’t think there’s been any proof of intoxication on my client’s behalf or on the defense.”

       2 Restatement (Second), supra, § 314A, p. 118, titled, “Special Relations Giving Rise to Duty to Aid or Protect,” provides in relevant part:
      “(1) A common carrier is under a duty to its passengers to take reasonable action
      “(a) to protect them against unreasonable risk of physical harm, and
      “(b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.

        i\i ^
      “(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.”