author: SCHALLER, J.

text:
    PAUL J. GARLASCO v. ZONING BOARD OF APPEALS OF THE TOWN OF BRIDGEWATER ET AL.
    (AC 27526)
    Flynn, C. J., and Schaller and Gruendel, Js.
    Argued March 12
    officially released May 29, 2007

      Paul J. Garlasco, pro se, the appellant (plaintiff).

      Michael A. Zizka, for the appellee (named defendant).
   Opinion

SCHALLER, J.

The plaintiff, Paul J. Garlasco, appeals from the judgment of the trial court dismissing his appeal from the decision of the defendant, the zoning board of appeals of the town of Bridgewater (board), denying his application for a variance. On appeal, the plaintiff claims that the court improperly (1) concluded that he had failed to establish a hardship and (2) abused its discretion by failing to consider additional evidence. We disagree and affirm the judgment of the trial court.

The following factual and procedural history is relevant to our discussion. The plaintiff owns property, approximately eighteen acres in size, in Bridgewater. This property is located in an R-3 zone. After obtaining the eighteen acre property, the plaintiff purchased a small strip of land from his neighbor, Susan T. Hansen. This strip of land contained a paved driveway that connected a gravel driveway on the plaintiffs lot to a section of Old Town Highway that had been abandoned by the town in 1980. The property, however, lacked any frontage on an existing street, a requirement to obtain a building or zoning permit in Bridgewater. In an application dated January 31, 2005, the plaintiff requested a variance of §§ 4.04.01 and 4.04.02 of the Bridgewater zoning regulations in order to construct a single-family residence. In the alternative, the plaintiff sought a variance of § 4.02.01 of the zoning regulations. Section 4.02.01 allowed for the construction of a permitted principal residential building or use on lots with insufficient lot areas, frontage or width requirements provided that, inter alia, the lot “has its frontage on a street . . . .”

In his application for a variance, the plaintiff stated that the hardship stemmed “from the fact the parcel has never had frontage in a form which would meet the requirements of the Bridgewater Zoning Regulations and the parcel pre-exists the adoption of these regulations. Where the town adopts a regulation which makes a parcel non-conforming it creates a hardship for which a variance would be appropriate.”

On March 22, 2005, the board held a public hearing on the plaintiffs application. Several neighbors voiced opposition to the plaintiffs proposal. After further discussion, the members of the board unanimously denied the application for a variance. The board stated that the reason for the denial was the failure to establish a hardship.

On April 15, 2005, the plaintiff appealed from the board’s decision to the Superior Court. He claimed that the application of the regulations denied him the reasonable use of the property. He further claimed that this denial amounted to a confiscation. The court issued a memorandum of decision dismissing the plaintiffs appeal on January 11, 2006. The court rejected the board’s argument that because the plaintiff had purchased the property with the knowledge that it lacked frontage, he was precluded from seeking a variance. The court also disagreed with the board’s claim that the plaintiff was not entitled to a variance because he failed to prove that he had access to the property. The court determined that by merging his property with the strip of land purchased from Hansen, “the plaintiff has created a new lot which has frontage on the discontinued highway. The plain meaning of [General Statutes] § 13a-55 is that this new lot has a right-of-way over Old Town Highway.”

The court then addressed the issue of whether the board properly determined that the plaintiff had failed to demonstrate the required hardship. After properly searching the record for the basis for the board’s decision, the court stated that, as a result of the application of the regulations, “the board would have been required to conclude that the plaintiff would not be entitled to put this property to any use at all other than for his own recreation or to sell to a neighbor.” The court then explained that, despite its limitations, the property had substantial value, as evidenced by an offer to purchase it for $60,000. Moreover, the plaintiff had not offered any evidence as to the value of the property; therefore, it was “impossible to determine if the value of the property had been greatly decreased” or “practically destroyed.” (Internal quotation marks omitted.) The court concluded that the plaintiff had failed to establish that he had suffered exceptional difficulty or unusual hardship as a result of the application of the zoning regulation. This appeal followed.

As a preliminary matter, we identify the applicable legal principles for our consideration of the plaintiffs appeal. “Our standard of review when considering an appeal from the judgment of a court regarding the decision of a zoning board to grant or deny a variance is well established. We must determine whether the trial court correctly concluded that the board’s act was not arbitrary, illegal or an abuse of discretion. . . . Courts are not to substitute their judgment for that of the board . . . and decisions of local boards will not be disturbed so long as honest judgment has been reasonably and fairly exercised after a full hearing. . . . Upon appeal, the trial court reviews the record before the board to determine whether it has acted fairly or with proper motives or upon valid reasons. . . . We, in turn, review the action of the trial court. . . . The burden of proof to demonstrate that the board acted improperly is upon the plaintiffs.” (Internal quotation marks omitted.) Horace v. Zoning Board of Appeals, 85 Conn. App. 162, 165, 855 A.2d 1044 (2004); see also Wood v. Zoning Board of Appeals, 258 Conn. 691, 697-98, 784 A.2d 354 (2001).

“A variance is an authorization obtained from the zoning board of appeals to use property in a manner otherwise forbidden by the zoning regulations. . . . For a variance to be granted under General Statutes § 8-6 (3), two conditions must be fulfilled: (1) the variance must be shown not to affect substantially the comprehensive zoning plan; and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan. . . . The hardship must be different in kind from that generally affecting properties in the same zoning district. . . . It is well settled that the granting of a variance must be reserved for unusual or exceptional circumstances. Proof of hardship is a condition precedent to granting a variance. . . . The hardship must arise from circumstances or conditions beyond the control of the property owner.” (Citations omitted; internal quotation marks omitted.) Kelly v. Zoning Board of Appeals, 21 Conn. App. 594, 597-98, 575 A.2d 249 (1990).

I

The plaintiff first claims that the court improperly concluded that he had failed to establish a hardship. Specifically, the plaintiff contends that without a variance he was denied any reasonable use of his property and that the value of his property was greatly decreased or destroyed. We are not persuaded.

A

The plaintiff first argues that the application of the zoning regulations denied him any reasonable use of his property. The board responds that the plaintiff failed to establish that the construction of a single-family home was the only reasonable use of the property, and, therefore, this argument must fail. We agree.

The following additional facts are necessary for the resolution of this issue. The court, in its memorandum of decision, stated that “[t]he plaintiff never offered any evidence of hardship other than the basic facts that the property lies in an R-3 zone and had no frontage on an existing public highway.” The court further noted that, due to the zoning regulations, the plaintiff would have been unable to put this property to any use permitted in the R-3 zone. Nevertheless, the court, relying on Grillo v. Zoning Board of Appeals, 206 Conn. 362, 537 A.2d 1030 (1988), concluded that because the record revealed that a neighbor had offered $60,000 to purchase the property, the property retained a potential use.

A review of the Grillo case will facilitate our discussion. In that case, Jessica F. DeFrank owned two contiguous rectangular lots in West Haven. Id., 363-64. A residence was situated on the easterly lot, and the remaining lot was used as a side yard. Id., 364. The plaintiff, Abele E. Grillo, owned the abutting lot to the west of the side yard. Id., 365. He had offered DeFrank approximately $8000 for the side yard, but the transaction was not completed. Id., 366.

DeFrank sought a variance for the side yard lot so that it could be used as a building lot. Id. She presented evidence to the zoning board that if she obtained a variance to construct a two-family house, the value of the side yard was $26,000. Id. If the side yard could not be used as a building lot, the market value, as reflected in the assessment records, was $5000, although there was evidence that the plaintiff remained interested in purchasing the property. Id. The board granted the variance, and the trial court dismissed the plaintiffs appeal, noting that “the board could have found that because DeFrank could make no reasonable use of the lot, its market value was minimal, being of use only to enhance the enjoyment of adjacent lands.” (Internal quotation marks omitted.) Id., 366-67.

Our Supreme Court reversed the judgment of the court. “We disagree, however, with the trial court’s conclusion drawn from the record of the public hearing that the inability to erect a one-family or two-family residence on the lot meant that DeFrank could make no reasonable use of the lot and thus its market value was minimal. It was undisputed that DeFrank was using the vacant lot as a side yard for the house she owned on the adjoining lot. Such a use was certainly reasonable and undoubtedly would enhance the price she would receive for the property as a whole if she were to sell it. The evidence indicated also that the plaintiff had offered her $8000for the lot in 1982 so that he might use it, not as a building lot, but as a side yard for his adjoining property. According to the assessor’s records the lot had a market value of $5000. This valuation of the lot for the purpose of its current use as a side yard cannot fairly be characterized as minimal. . . . [T]here is no evidence that the vacant lot is unmarketable for its present use as a side yard enhancing the value of the adjoining DeFrank property or of other adjoining properties, suchas that of the plaintiff Proof of financial hardship having a confiscatory or arbitrary effect requires more than testimony that property can be sold only for a price substantially lower than can be obtained if a variance is granted to permit a use otherwise prohibited by the zoning regulations.” (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 369-71. In other words, DeFrank was not deprived of the reasonable use of the property because of its potential utilization as a side yard, not only to benefit her property, but also that of abutting property owners, such as the plaintiff.

Similarly, in the present case, there was evidence that George A. Kress and Marcia L. Kress (Kress family) owned property adjacent to the plaintiffs parcel and had offered to purchase the property in 2002. The Kress family submitted this offer in an attempt to resolve a dispute with the plaintiffs predecessor in title, Robert Grey. The plaintiff was Grey’s attorney and was aware of the offer. As demonstrated by the offer from the Kress family, the property could be used as an addition to the abutting properties. See id., 370. We conclude, therefore, that the court properly determined that the plaintiff failed to establish that the property has no reasonable use.

The plaintiffs reliance on Pike v. Zoning Board of Appeals, 31 Conn. App. 270, 624 A.2d 909 (1993), is misplaced. In that case, the zoning board denied the plaintiffs application for a variance. Id., 272. The plaintiffs lot was located in a residence-agricultural zone; however, the board of health determined that it was unsuitable for residential or commercial use. Id., 271-72. As a result, the plaintiff sought a variance of the regulation requiring three acres for a nursery or gardening center or a variance of the requirement that seasonal roadside stands sell produce grown predominately on the premises. Id., 272. The zoning board denied the plaintiffs application, citing the failure to demonstrate a hardship, and the trial court dismissed the subsequent appeal. Id., 272-73. We reversed the judgment of the trial court. Id., 278.

In Pike, we noted that there was no indication that the plaintiffs property could be used as a side yard. Id., 276. Additionally, the record revealed that without a variance, the value of the lot would be decreased greatly, if not totally destroyed. Id. These two factors distinguish Pike from both the present case and our Supreme Court’s decision in Grillo. As we have noted, there was evidence before the board that the plaintiffs neighbors had offered to purchase the property for $60,000. Moreover, the plaintiff failed to submit any evidence that the value of his property has been decreased greatly or destroyed. We disagree with the plaintiffs claim that Pike controls the present case.

B

The plaintiff next argues that as a result of the zoning regulations, the value of his property was greatly decreased or destroyed. The board maintains that the court properly concluded that the plaintiff failed to introduce any evidence regarding the value of the property. We agree.

In its memorandum of decision, the court stated: “On the issue of decrease in value [of the property], the plaintiff offered no evidence at all. The plaintiff never offered any evidence of the value of the land with a house on it so that it could be measured against a value of $60,000 in a sale to the neighbor. Absent evidence of these values, it is impossible to determine if the value of the property has been ‘greatly decreased.’ Nor, with evidence of an offer of $60,000, could the board find that the value of the property was ‘practically destroyed.’ ”

The absence of any evidence before the board regarding the value of the property is fatal to the plaintiffs claim on appeal. In this type of zoning appeal, the board, not the court, operates as the finder of facts. See Collins Group, Inc. v. Zoning Board of Appeals, 78 Conn. App. 561, 564, 827 A.2d 764, cert. denied, 266 Conn. 911, 832 A.2d 68 (2003). “[C]ourts are not to substitute their judgment for that of the board, and . . . the decisions of local boards will not be disturbed as long as honest judgment has been reasonably and fairly made after a full hearing .... The trial court’s function is to determine on the basis of the record whether substantial evidence has been presented to the board to support [the board’s] findings.” (Internal quotation marks omitted.) DiPietro v. Zoning Board of Appeals, 93 Conn. App. 314, 325, 889 A.2d 269, cert. denied, 277 Conn. 925, 895 A.2d 796 (2006). The plaintiff failed to produce any evidence regarding the value of the property. The board, therefore, was precluded from determining the extent to which the application of the zoning regulations decreased or destroyed the value of the property.

“Disappointment in the use of property does not constitute exceptional difficulty or unusual hardship .... It is well established that the power to grant a variance should be sparingly exercised.” (Citation omitted; internal quotation marks omitted.) Jaser v. Zoning Board of Appeals, 43 Conn. App. 545, 548, 684 A.2d 735 (1996). Furthermore, we emphasize that “[v]ariances cannot be personal in nature, and may be based only upon property conditions. . . . Thus, the identity of a particular user of the land is irrelevant to zoning. . . . Additionally . . . [p]ersonal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance. . . . [T]he basic zoning principle that zoning regulations must directly affect land, not the owners of land . . . limits the ability of zoning boards to act for personal rather than principled reasons, particularly in the context of variances.” (Citations omitted; emphasis in original; internal quotation marks omitted.) Horace v. Zoning Board of Appeals, supra, 85 Conn. App. 167-68. In the present case, the plaintiff appears to argue that he was entitled to a variance to build a single-family residence on his property. It was his burden to present evidence to the board regarding the issues of reasonable use and the valuation of the property. His failure to do so resulted in the board properly denying his application for a variance.

II

The plaintiff next claims that the court abused its discretion by failing to consider additional evidence. Specifically, he argues that it was inequitable to deny his request pursuant to General Statutes § 8-8 (k) to submit evidence regarding the value of the property. We are not persuaded.

The following additional facts are necessary for our discussion. Before the board, the only evidence regarding the value of the property was the $60,000 offer made to the plaintiffs predecessor in title by his neighbors as a possible settlement of a prior dispute. The court issued its memorandum of decision on January 11,2006, noting that the plaintiff had failed to establish the value of the property. The next day, the plaintiff filed a motion to open the judgment and to reargue. A second motion to reargue was filed on January 17, 2006. On January 24, 2006, thirteen days after the court issued its memorandum of decision, the plaintiff filed a motion to introduce additional evidence. Specifically, he presented the court with the assessor’s card of the property. This card indicated the purchase price he had paid for the property, $200,000, as well as the assessed value of $202,000. The plaintiff further stated: “It is of great importance that the court take into consideration that, when the property was purchased from Mr. Grey, for $200,000, it was completely landlocked and that the value, subsequent to the plaintiff acquiring a right-of-way, to Old Town Highway, would most certainly have dramatically increased the value of the subject premises.” The court denied the plaintiffs motion to introduce additional evidence on January 25, 2006.

At the outset, we note that § 8-8 (k) “does not say that a trial court is required to hold an evidentiary hearing. Our Supreme Court, in Troiano v. Zoning Commission, 155 Conn. 265, 268, 231 A.2d 536 (1967), held that the trial court had the authority to decide, in the exercise of its discretion, whether additional evidence was necessary for the equitable disposition of the appeal. On appeal, we need only decide whether . . . the trial court abused its discretion in declining to hear additional testimony . . . .” Collins Group, Inc. v. Zoning Board, supra, 78 Conn. App. 579; see also Samperi v. Planning & Zoning Commission, 40 Conn. App. 840, 851, 674 A.2d 432 (1996). “When reviewing claims under an abuse of discretion standard, the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.” (Internal quotation marks omitted.) Gevers v. Planning & Zoning Commission, 94 Conn. App. 478, 488-89, 892 A.2d 979 (2006).

In the present case, the plaintiff did not file his motion to introduce additional evidence until after the court had issued its decision. It was, therefore, not until he had twice failed to provide evidence of the value of the property, once to the board and once to the court, that the plaintiff attempted to correct this deficiency. Additionally, the plaintiff did not offer evidence regarding the present value of his property. Instead, he offered only the outdated assessor’s card that indicated the value of the property before he purchased the strip of land from Hansen. In other words, the evidence that he sought to introduce did not represent the value of the property in its current condition. Under these circumstances, and given our limited and deferential standard of review, we conclude that the court did not abuse its discretion by denying the plaintiffs motion to introduce additional evidence.

The judgment is affirmed.

In this opinion the other judges concurred.

       In addition to the board, the plaintiff named Edward R. Bennett, the chairman of the board, and Cheryl L. Pinkos, clerk of the town of Bridgewater, as defendants.

       The board claimed, as an alternate ground for affirmance, that the court improperly applied General Statutes § 13a-55, which provides: “Property owners bounding a discontinued or abandoned highway, or a highway any portion of which has been discontinued or abandoned, shall have a right-of-way for all purposes for which a public highway may be now or hereafter used over such discontinued or abandoned highway to the nearest or most accessible highway, provided such right-of-way has not been acquired in coryunction with a limited access highway.” As a result of our conclusion with respect to the plaintiffs claims on appeal, we need not reach this issue.

       When the plaintiff purchased the strip of land, by operation of the zoning regulations, it merged with the eighteen acre parcel. Section 4.02.03 of the Bridgewater zoning regulations provides: “Except as provided below, when any two adjoining lots or parcels are owned by the same person(s), and either lot or parcel does not meet current lot frontage or lot area requirements under these Regulations, the adjoining lots or parcels shall be deemed to have merged and shall be considered a single lot or parcel for purposes of these Regulations. The provisions of this section shall not apply to lots or parcels separated by a street or other existing or proposed public or private right of way, or to lots in subdivisions that have been approved by the Commission and recorded in the Bridgewater Land Records unless the subdivision approval had lapsed or otherwise become null and void.”

       Section 4.04.01 of the Bridgewater zoning regulations provides: “All uses and structures shall comply with the standards set forth in Table 4.04A, except as provided in Sections 4.03.” Table 4.04A requires a minimum lot frontage and width of 200 feet in an R-3 zone.

       Section 4.04.02 of the Bridgewater zoning regulations provides: “Except as provided in Section 4.03 of these Regulations, no building permit or zoning permit shall be issued for any building, structure, or use unless the lot for which the permit is sought has the required lot width and the required lot frontage on an existing street or a street under construction as shown on a properly approved and filed subdivision plan or other plan approved by the Commission. Comer lots shall be deemed to have two front yards, and frontage and width requirements must be met along or in the direction of all street lines. The minimum lot width required by these Regulations must be maintained in all portions of the lot other than a rear yard.”

       Section 4.02.01 of the Bridgewater zoning regulations provides: “The lot area, frontage and width requirements of these Regulations shall not prevent construction of a permitted principal residential building or establishment of a permitted principal residential use on any lawfully nonconforming lot, provided that such lot has its frontage on a street, and that adequate sewage disposal facilities and a potable water supply can be assured without hazard to public health. No deviation from current side or rear yard requirements shall be deemed to be authorized by this section.”

       See footnote 2.

       “Where the board states its reasons on the record we look no further. . . . Where, however, the board has not articulated the reasons for its actions, the court must search the entire record to find a basis for the board’s decision.” (Internal quotation marks omitted.) Oakbridge/Rogers Avenue Realty, LLC v. Planning & Zoning Board, 78 Conn. App. 242, 247, 826 A.2d 1232 (2003); see also Bloom v. Zoning Board of Appeals, 233 Conn. 198, 208, 658 A.2d 559 (1995).

       Section 7.01.02 of the Bridgewater zoning regulations provides: “No land use shall be established or changed and no building or structure shall be used, erected, constructed, moved, enlarged, or altered, in whole or in part, until a zoning permit or special permit has been issued by the Commission or its authorized agent.” Moreover, § 4.04.02 provides in relevant part that “ [e]xcept as provided in Section 4.03 of these Regulations, no building permit or zoning permit shall be issued for any building, structure, or use unless the lot for which the permit is sought has the required lot width and the required lot frontage on an existing street . . . .”

       The plaintiff argues that the court should not have considered the offer made by the Kress family because it was (1) offered to his predecessor in title, (2) done solely for the purposes of settlement and (3) made prior to the purchase of the strip of land from Hansen and, therefore, speculative. We agree with the board that the offer was part of the record, and, therefore, both the board and the court properly considered the offer. Furthermore, the plaintiff failed to introduce any evidence as to whether the offer remained available or as to the present value of the property. We note that it was the plaintiffs burden to establish the conditions necessary for the board to grant the variance. See, e.g., Bogue v. Zoning Board of Appeals, 165 Conn. 749, 754, 345 A.2d 9 (1974).

       At oral argument, the plaintiff conceded that he did not submit to the board any evidence regarding the value of the property.

       General Statutes § 8-8 (k) provides: “The court shall review the proceedings of the board and shall allow any party to introduce evidence in addition to the contents of the record if (1) the record does not contain a complete transcript of the entire proceedings before the board, including all evidence presented to it, pursuant to section 8-7a, or (2) it appears to the court that additional testimony is necessary for the equitable disposition of the appeal. The court may take the evidence or may appoint a referee or committee to take such evidence as it directs and report the same to the court, with any findings of facts and conclusions of law. Any report of a referee, committee or mediator under subsection (f) of section 8-8a shall constitute a part of the proceedings on which the determination of the court shall be made.”

       The plaintiff previously had attached this card to his brief filed with the Superior Court on July 11, 2005.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    DUANE B. JOHNSON v. COMMISSIONER OF CORRECTION
    (AC 27143)
    Schaller, Lavine and Pellegrino, Js.
    Submitted on briefs March 26
    officially released May 29, 2007

      Richard C. Marquette, special public defender, filed a brief for the appellant (petitioner).

      Patricia M. Froehlich, state’s attorney, and Harry D. Weller and Jo Anne Sulik, senior assistant state’s attorneys, filed a brief for the appellee (respondent).
   Opinion

PER CURIAM.

The petitioner, Duane B. Johnson, appeals following the denial of certification to appeal from the judgment denying his petition for a writ of habeas coipus. On appeal, the petitioner claims that the habeas court abused its discretion in denying his petition for certification to appeal and improperly denied the habeas petition. Specifically, the petitioner argues that the court improperly (1) concluded that he was provided with effective assistance of counsel and (2) rejected his claim of actual innocence. We dismiss the petitioner’s appeal.

The facts of the underlying criminal trial are set forth in State v. Johnson, 241 Conn. 702, 699 A.2d 57 (1997), in which our Supreme Court affirmed the petitioner’s conviction of felony murder in violation of General Statutes § 53a-54c, burglary in the first degree in violation of General Statutes §§ 53a-101 (a) and 53a-8, larceny in the third degree in violation of General Statutes §§ 53a-119, 53a-124 (a) (2) and 53a-8 and twenty counts of stealing a firearm in violation of General Statutes §§ 53a-212 and 53a-8. State v. Johnson, supra, 704-706. Our Supreme Court ordered that the petitioner’s conviction for capital felony in violation of General Statutes § 53a-54b (1) be vacated and that he be resentenced on the felony murder conviction. State v. Johnson, supra, 721. Following this remand, the court imposed a total effective sentence of sixty years incarceration.

On August 18, 2005, the petitioner filed a revised, amended petition for a writ of habeas corpus alleging that his trial counsel, attorney Arthur P. Meisler, provided ineffective assistance of counsel. The petitioner also set forth a claim of actual innocence. Following an evidentiary hearing, the court issued a thorough and comprehensive memorandum of decision in which it concluded that, with respect to the issue of sentence review, Meisler had been ineffective, and, as a result, the petitioner had suffered prejudice. With respect to the remaining claims relating to counsel’s performance, the court concluded that Meisler had provided “quality representation.” Furthermore, the court rejected the petitioner’s claim of actual innocence. With the exception of restoring the petitioner’s right to seek sentence review, the court denied the petition for a writ of habeas corpus and subsequently denied the petition for certification to appeal.

“We begin by setting forth the applicable standard of review. Faced with the habeas court’s denial of certification to appeal, a petitioner’s first burden is to demonstrate that the habeas court’s ruling constituted an abuse of discretion. Abuse of discretion is the proper standard because that is the standard to which we have held other litigants whose rights to appeal the legislature has conditioned upon the obtaining of the trial court’s permission. ... If the petitioner succeeds in surmounting that hurdle, the petitioner must then demonstrate that the judgment of the habeas court should be reversed on its merits. ... In order for us to find that the habeas court abused its discretion, the petitioner first must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further.” (Citation omitted; internal quotation marks omitted.) Jones v. Commissioner of Correction, 98 Conn. App. 760, 761-62, 912 A.2d 496 (2006), cert. denied, 281 Conn. 910, 916 A.2d 50 (2007).

I

The petitioner first claims that the court abused its discretion in denying his petition for certification to appeal with respect to his claims of ineffective assistance of counsel. Specifically, the petitioner argues that Meisler was deficient in three ways. First, he failed to advise the petitioner properly regarding a plea agreement offered prior to trial; second, he failed to advise him adequately regarding the range of sentences available to the court if the petitioner was convicted; and third, he did not adequately advise him as to his defense.

“The standard that governs the granting of a petition for a writ of habeas corpus for ineffective assistance of counsel is . . . well established under the [requirements set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)]. The sixth amendment to the United States constitution guarantees a criminal defendant the assistance of counsel for his defense. U.S. Const., amend. VI. It is axiomatic that the right to counsel is the right to the effective assistance of counsel. ... A claim of ineffective assistance of counsel consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong, a claimant must demonstrate that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [amendment. ... To satisfy the prejudice prong, a claimant must demonstrate that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . . The claim will succeed only if both prongs are satisfied.” (Internal quotation marks omitted.) Williams v. Commissioner of Correction, 100 Conn. App. 94, 101-102, 917 A.2d 555 (2007).

The court found that the petitioner failed to meet his burden of proof with respect to either Strickland prong. Moreover, the court questioned the petitioner’s credibility as a result of his admission that he previously had lied to the police. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner’s constitutional right to effective assistance of counsel is plenary. . . . The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Citation omitted; internal quotation marks omitted.) Henderson v. Commissioner of Correction, 80 Conn. App. 499, 503, 835 A.2d 1036 (2003), cert. denied, 267 Conn. 918, 841 A.2d 1190 (2004).

The basis for all of the petitioner’s allegations relating to his claim of ineffective assistance of counsel stems primarily from his testimony regarding Meisler’s conduct. The court weighed the credibility of the petitioner’s testimony, as well as that of the other witnesses, and determined that he failed to meet his burden of establishing that he was denied constitutionally adequate representation. Given our limited standard of review, we cannot conclude that this determination was improper.

After reviewing the entire record before us, including the briefs, file, exhibits and transcripts, we conclude that the petitioner has not satisfied any of the required criteria and, therefore, has failed to demonstrate that the court’s denial of his petition for certification to appeal reflects an abuse of discretion. See Simms v. Warden, 230 Conn. 608, 616, 646 A.2d 126 (1994).

II

The petitioner next claims that the court abused its discretion in denying his petition for certification to appeal with respect to his claim of actual innocence. Specifically, he argues that the court improperly evaluated his claim of innocence. We disagree.

“[A] substantial claim of actual innocence is cognizable by way of a petition for a writ of habeas corpus, even in the absence of proof by the petitioner of an antecedent constitutional violation that affected the result of his criminal trial. ... To prevail on a claim of actual innocence, the petitioner must satisfy two criteria. First, [he] must establish by clear and convincing evidence that, taking into account all of the evidence—both the evidence adduced at the original criminal trial and the evidence adduced at the habeas corpus trial—he is actually innocent of the crime of which he stands convicted. Second, [he] must also establish that, after considering all of that evidence and the inferences drawn therefrom as the habeas court did, no reasonable fact finder would find the petitioner guilty of the crime.” (Internal quotation marks omitted.) Batts v. Commissioner of Correction, 85 Conn. App. 723, 725-26, 858 A.2d 856, cert. denied, 272 Conn. 907, 863 A.2d 697 (2004).

The court found that, even if it were to credit his testimony, the events described by the petitioner “clearly [met] the elements for felony murder, and it is abundantly clear that the jury reached the correct decision in finding guilt on that count. Moreover, this evidence was always available to the petitioner since it is his own testimony that he complains was not presented to the jury.” In other words, there was no newly discovered evidence to support the claim of actual innocence.

“Our Supreme Court has deemed the issue of whether a habeas petitioner must support his claim of actual innocence with newly discovered evidence an open question in our habeas jurisprudence. Clarke v. Commissioner of Correction, 249 Conn. 350, 358, 732 A.2d 754 (1999). This court, however, has held that a claim of actual innocence must be based on newly discovered evidence. Clarke v. Commissioner of Correction, 43 Conn. App. 374, 379, 682 A.2d 618 (1996), appeal dismissed, 249 Conn. 350, 732 A.2d 754 (1999). [A] writ of habeas corpus cannot issue unless the petitioner first demonstrates that the evidence put forth in support of his claim of actual innocence is newly discovered. Williams v. Commissioner of Correction, 41 Conn. App. 515, 530, 677 A.2d 1 (1996), appeal dismissed, 240 Conn. 547, 692 A.2d 1231 (1997). This evidentiary burden is satisfied if a petitioner can demonstrate, by a preponderance of the evidence, that the proffered evidence could not have been discovered prior to the petitioner’s criminal trial by the exercise of due diligence.” (Internal quotation marks omitted.) Batts v. Commissioner of Correction, supra, 85 Conn. App. 726-27. We agree that the petitioner failed to offer any newly discovered evidence before the habeas court.

The court further found that regardless of whether the petitioner’s evidence was newly discovered, the petitioner failed to present clear and convincing evidence of his actual innocence. The petitioner’s testimony indicated that he had participated in a burglary with his brother, who, during the course of the burglary, shot and killed a state police trooper. Moreover, the petitioner did not present any evidence regarding the affirmative defense contained in § 53a-54c. We conclude, therefore, that the court properly denied the petition for certification to appeal from the denial of the petition for a writ of habeas corpus with respect to his claim of actual innocence.

The appeal is dismissed.

       The petitioner; the petitioner’s father, Cunard Johnson; and Meisler’s assistant, Debra McKoy, testified at the hearing. The parties stipulated that Meisler had died on March 23, 2001.

       The petitioner stated in his brief that “trial counsel failed to advise and take appropriate action within thirty days after [the] petitioner’s sentencing to file on his behalf, an application for sentence review pursuant to [General Statutes] § 51-195, after sentencing.” He further argued that Meisler’s performance was deficient in that “he clearly did not take steps to protect the petitioner’s right to sentence review within thirty days after he was sentenced . . . .”
      As noted, the court found in favor of the petitioner with respect to his sentence review claim and restored his right to seek sentence review. The petitioner, therefore, is not aggrieved by that aspect of the judgment. “[P]roof of aggrievement is ... an essential prerequisite to the court’s jurisdiction of the subject matter of the appeal. . . . Ordinarily, a party that prevails in the trial court is not aggrieved. . . . Moreover, [a] party cannot be aggrieved by a decision that grants the very relief sought.” (Internal quotation marks omitted.) Whitaker v. Commissioner of Correction, 90 Conn. App. 460, 469 n.18, 878 A.2d 321, cert. denied, 276 Conn. 918, 888 A.2d 89 (2005). To the extent that the petitioner requests this court to review his sentence review claim, we conclude that we lack subject matter jurisdiction to do so.


text:
    ARONNE BUILDING AND REMODELING, LLC v. CATHERINE A. KSIAZEK ET AL.
    (AC 28061)
    Flynn, C. J., and Bishop and DiPentima, Js.
    Submitted on briefs March 22
    officially released May 29, 2007

      Nancy E. Martin filed a brief for the appellant (plaintiff).

      Patrick W. Boatman filed a brief for the appellees (defendants).
   Opinion

PER CURIAM.

In this action to foreclose a mechanic’s hen, the plaintiff appeals from the judgment rendered in favor of the defendants. On appeal, the plaintiff claims that the court improperly (1) held that the plaintiff had waived its hen rights, (2) failed to find that the hen waiver executed by the plaintiff was void because it was induced by the defendants’ wrongful conduct, (3) failed to hold that the defendants were equitably estopped from relying on the hen waiver executed by the plaintiff and (4) held that the plaintiff had no standing to foreclose on the mechanic’s hen because it was not the party performing the work at issue. Although we agree with the plaintiff regarding the last claim, we disagree with the plaintiffs claims regarding the validity and enforceability of the hen waiver and, accordingly, affirm the judgment of the trial court.

The record reveals the following factual and procedural background. The plaintiff, Aronne Building & Remodeling, LLC, is an entity whose sole member is Michael Aronne, Jr. At all times relevant to this matter, the defendants, Catherine A. Ksiazek and Robert W. Ksiazek, were husband and wife and owners of property located at 173 East Cotton Hill Road in Portland. On or about October 30, 2003, Aronne and the defendants entered into a written contract calling for Aronne to construct a house for the defendants on their property for the stated cost of $184,000, inclusive of materials and labor. In conjunction with this building project, the defendants secured a construction mortgage with Fleet Bank (Fleet). Pursuant to the terms of their agreement with Fleet, the defendants were able to secure payments from Fleet to remit to Aronne as construction progressed, and, as Aronne received payments, he was obligated to execute a lien waiver for work performed and labor provided to the date of his receipt of any progress payment. As the work progressed, the parties agreed to deviations from the written contract that assigned to other contractors some of the work originally to be undertaken by Aronne. Additionally, at intervals during the construction, the defendants made payments to Aronne in the aggregate amount of $125,000, and, with each payment, Aronne executed a lien waiver for any work performed and labor provided to the date of remittance.

On or about July 28,2004, Aronne gave the defendants a final bill in the amount of $32,720 in the name of “Aronne Building & Remodeling, LLC.” On the following day, at a meeting between Aronne and Robert Ksiazek, Ksiazek gave Aronne a check for $18,000, and Aronne, in turn, provided Ksiazek with a lien waiver for labor and materials furnished in conjunction with the building project to and including July 29, 2004. Although Aron-ne’s execution of the lien waiver and receipt of $18,000 on July 29 is not disputed, the parties provided conflicting testimony concerning their conversation on that date. Aronne claims that Robert Ksiazek said that Aro-nne would receive the balance of the $32,720 at a future date, and Robert Ksiazek testified that he told Aronne that Fleet would release the sum of only $18,000 for work performed and materials provided to July 29 and denied that he promised to pay Aronne any additional sums. Thereafter, on September 29, 2004, the plaintiff caused a certificate of mechanic’s lien to be filed on the municipal land records, claiming the sum of $16,171.99 due from the defendants.

By complaint dated July 20, 2005, the plaintiff commenced this action to foreclose its mechanic’s lien. In paragraph three of its complaint, the plaintiff alleged that it furnished materials and rendered services in the construction of a house for the defendants pursuant to its written contract with them. In response, the defendants admitted that allegation but denied that any remaining funds were due the plaintiff. Additionally, the defendants filed special defenses alleging, generally, that the plaintiff had been negligent in the performance of the contract. The plaintiff denied those allegations. The matter was tried to the court after which, on August 31, 2006, the court issued a memorandum of decision. The court held that the plaintiff could not recover because the contract was between Aronne and the defendants and not between the plaintiff limited liability company and the defendants. The court further found that the hen waiver executed by Aronne on July 29, 2004, was binding and effective, and, therefore, the hen filed by the plaintiff was improper. This appeal ensued.

The dispositive issue on appeal is whether the court correctly determined that Aronne had waived his right to file a mechanic’s hen on the defendants’ property and, if so, whether the court’s judgment pursuant to that waiver was proper. Whether a party has waived a right to assert a mechanic’s lien is a question of fact to be determined by the trial court. Pero Building. Co. v. Smith, 6 Conn. App. 180, 184, 504 A.2d 524 (1986). Accordingly, the court’s determination in this regard will be upset only if the record demonstrates that it was clearly erroneous.

In this instance, the court received evidence that, in conjunction with his receipt of $18,000 on July 29, 2004, Aronne signed a one page document that provided, in pertinent part: “The undersigned in consideration of the sum of eighteen thousand ($18,000), the receipt whereof is hereby acknowledged, does hereby waive and release any and all liens, rights of liens or claim of whatsoever kind or character on said described building and premises, on account of any and all labor and materials, or both, furnished for or incorporated into said building and premises by the undersigned, up to and including July 29, 2004.” Faced with this document, the court determined that Aronne had, in fact, waived his right to exert a lien on the defendants’ property for any work or materials furnished to July 29, 2004.

Although Aronne does not dispute the clear import of the language of the waiver he signed, he claims, nevertheless, that he was induced into signing this agreement by the defendants’ promise to pay him the balance of funds he claimed at a later date. He asserts that, notwithstanding the language of the waiver, the court should not have held it enforceable because the evidence of the parties’ dealings on July 29,2004, makes it manifest that the waiver was intended to relate only to the partial payment made on that date and not to the additional sums claimed by the plaintiff. The defendants, in turn, dispute Aronne’s rendition of their July 29, 2004 conversation. They claim that they made no such commitment to the plaintiff and that, to the contrary, they informed Aronne that they were unsatisfied with his work and that the sum of $18,000 was all Fleet was willing to release to them for Aronne’s work and materials furnished to July 29, 2004. To the extent that the court was confronted with a disputed factual account of the parties’ dealings, it was the trial court’s function, and not this court’s on appeal, to assess and weigh the parties’ conflicting factual claims. On the record before us, we cannot say that the court improperly credited the defendants’ version of the events of July 29, 2004, and failed to credit the plaintiffs contrary claims. Having found that the plaintiff waived his right to impose a lien on the defendants’ property, the court properly rendered judgment in favor of the defendants.

The judgment is affirmed.

       The court also found that the plaintiff had no standing to impose a lien on the defendants’ property because it was not a party to the construction contract. Although we need not reach this issue because we find no fault with the court’s conclusions regarding the execution of the waiver, we note that, in the pleadings, the defendants admitted the limited liability company’s allegations that it entered into a contract with them and that it performed certain services pursuant to the construction contract. The effect of such a judicial admission is to preclude the defendants from contesting that issue at trial. In short, the defendants’ judicial admission is conclusive and dispensed with the need for the plaintiff to prove the allegation. See Rudder v. Mamanasco Lake Park Assn., Inc., 93 Conn. App. 759, 769, 890 A.2d 645 (2006).

       The plaintiff claims, as well, that the court improperly failed to find that Aronne had been induced into signing the waiver by the defendants’ promises of future payment and that, on the basis of these representations, the defendants should be estopped from asserting the validity of the waiver. Although the plaintiff is accurate in its claim that the court did not make specific findings regarding these claims, the court is not obligated to make findings on every claim asserted by a party. See Bowden v. Commissioner of Correction, 93 Conn. App. 333, 342, 888 A.2d 1131, cert. denied, 277 Conn. 924, 895 A.2d 796 (2006). Neither party sought an articulation from the trial court regarding the issue of estoppel or the claim of misrepresentation. In the absence of an articulation, it is not the province of this court to fill in evidentiary blanks for the parties. Without an articulation from the court, we confront a record that discloses, simply, that the court found no ambiguity in the language of the lien waiver and held the plaintiff accountable for the document Aronne unquestionably signed.


author: HARPER, J.

text:
    DOROTHY ALEXANDER, ADMINISTRATRIX (ESTATE OF SHEILA CALDWELL), ET AL. v. TOWN OF VERNON ET AL.
    (AC 25475)
    Schaller, McLachlan and Harper, Js.
    Argued December 11, 2006
    officially released May 29, 2007

      Michael C. Conroy, with whom, on the brief, were William J. Gallitto and Josephine A. Spinella, for the appellants (plaintiffs).

      Thomas R. Gerarde, with whom, on the brief, was Beatrice S. Jordan, for the appellees (defendants).
   Opinion

HARPER, J.

This appeal involves a wrongful death action brought by the plaintiff, Dorothy Alexander, administratrix of the estate of Sheila Caldwell (victim), against the defendants, the town of Vernon and seven members of its police department. The trial court rendered summary judgment in favor of the defendants after concluding that the officers’ inaction was not a proximate cause of the victim’s death. In the alternative, the court determined that summary judgment was appropriate because the officers were entitled to qualified governmental immunity and the plaintiff could not demonstrate that their conduct was reckless or violated the victim’s rights under our state constitution. On appeal, the plaintiff challenges all of the rulings underlying the court’s grant of summary judgment. We affirm the judgment of the trial court.

The tragic circumstances underlying this appeal are not in dispute. At about noon on Saturday, February 12,2000, the victim called the Vernon police department and requested assistance at her residence in Vernon. The victim explained that she was in the process of leaving her husband, Arman Caldwell (Caldwell), and needed police protection while she retrieved some of her belongings.

Upon arrival at the Caldwell home, Officers Daniel Moore and Darrin Tranter interviewed the victim and Caldwell. The victim informed the officers that the couple had gotten into an argument on the previous day, Friday, February 11, 2000, and that Caldwell had slapped her in the face, struck her with a belt and physically restrained her from calling the police. The victim stated that, as a result of the altercation, she had bruises on her face and right calf. The victim also told the officers that Caldwell had threatened her with a knife in the past. Moore examined her face and calf and saw no visible bruises or scrapes.

Caldwell told a different story during his interview with the officers. Specifically, he informed them that the victim had initiated the altercation on Friday, February 11, 2000, by punching and scratching him. Although he admitted to restraining her physically, he claimed that he did so only to curtail her attack on him. The officers observed several scrapes on his chest.

Both spouses refused to give a written statement about the events of the previous day and indicated that they did not want the other arrested. Moore requested a records check on the Caldwells and learned that neither spouse had any outstanding arrest warrants, protective orders or restraining orders issued against them. Accordingly, Moore provided both parties with oral and written domestic violence assistance information. He also informed them that he would be preparing a report and consulting with the office of the state’s attorney to determine whether to obtain an arrest warrant for one or both of them.

The officers remained in the home while the victim collected her belongings. She then left the residence in the company of her mother. At about 9:30 p.m. that same day, however, the victim again called the Vernon police department and requested that an officer accompany her to her residence. The victim reported that Caldwell had just called and informed her that he had destroyed the contents of their home. She further relayed that she was en route to the house to survey the damage.

When Officers Steven Ciarleglio and Kevin Slater arrived at the home, the victim was there already, along with some of her friends and family members. Caldwell was not present. The officers toured the residence and observed an extensive amount of damage to various items. The victim repeated for these officers what had transpired the previous day. She also stated, however, that she was afraid of Caldwell and that during their argument, he had threatened to kill her if she left him. The victim gave a written statement confirming that she wanted Caldwell arrested for the damage he had done to their home.

Ciarleglio advised the victim to leave the residence for the night and told her that he planned to apply for a warrant for Caldwell’s arrest. The victim informed the officers that during the earlier telephone conversation with Caldwell, he had told her that he was going to Maryland. The victim subsequently left the residence in the company of several friends and relatives.

The next day, on Sunday, February 13, 2000, the victim received harassing telephone calls from Caldwell at her mother’s home in East Hartford, where she and her minor children were staying. She notified the East Hartford police of the calls and advised them that she was unaware of Caldwell’s location.

During the course of investigating the victim’s report of harassing telephone calls, a detective from the East Hartford police department spoke with Slater. Slater informed the detective that he was unaware of Caldwell’s whereabouts. The detective stated that he would contact the Vernon police department as soon as Caldwell was located.

Early in the afternoon of the next day, Monday, February 14, 2000, Caldwell broke into his mother-in-law’s house in East Hartford. While the couple’s minor children were in the home, Caldwell fatally shot the victim and then himself.

Almost three years later, the plaintiff commenced this action against the defendants in the form of a ninety-eight count complaint alleging negligence, recklessness, violation of the victim’s rights under our state constitution and infliction of emotional distress on the victim’s two minor children. The centerpiece of the complaint was the plaintiffs allegation that the officers were negligent and reckless in not protecting the victim and in not arresting Caldwell or applying for a warrant for his arrest. The plaintiff further claimed that Sergeant Paul Jabs, Lieutenant Roger Barker and Chief of Police Rudolph Rossmy negligently and recklessly failed to enforce the law and to train their subordinate officers properly. Finally, the plaintiff alleged that the town of Vernon was obligated to indemnify the officers, pursuant to General Statutes § 7-465, for any damages awarded as a result of the officers’ negligent or reckless conduct.

On July 31, 2003, the defendants moved for summary judgment on various grounds, including governmental immunity, failure to state a cause of action under our state constitution and inability to prove recklessness or a right to indemnification under § 7-465. On May 3, 2004, the court issued a decision, concluding as a matter of law that the officers’ failure to arrest Caldwell on Saturday, February 12, 2000, was not aproxímate cause of the victim’s death two days later. Reasoning that the plaintiffs inability to establish causation was fatal to every cause of action alleged in the complaint, the court rendered summary judgment on all counts in favor of the defendants. The plaintiff thereafter filed this appeal.

“The standards governing our review of atrial court’s decision to grant a motion for summary judgment are well established. Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . .

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Internal quotation marks omitted.) Pepitone v. Serman, 69 Conn. App. 614, 618, 794 A.2d 1136 (2002). Because the trial court rendered judgment for the defendants as a matter of law, our review is plenary and we must decide whether the trial court’s conclusions are legally and logically correct and find support in the facts that appear in the record. See id.

To establish any of the causes of action alleged in the complaint, the plaintiff must prove that the officers acted either negligently or recklessly. Because causation is also an essential element of a cause of action for negligence; see Coste v. Riverside Motors, Inc., 24 Conn. App. 109, 112, 585 A.2d 1263 (1991); or recklessness; see Tester v. Johnson, 23 Conn. App. 536, 539, 583 A.2d 133 (1990), cert. denied, 217 Conn. 806, 584 A.2d 1192 (1991); we address that issue first. The defendants argue that proximate cause is absent because it was not foreseeable that failing to arrest Caldwell on Saturday afternoon would lead to the victim’s murder two days later. The defendants also contend that it is conjecture to assume that a search for Caldwell would have been successful, given that his whereabouts were unknown during the time leading to the murder. Finally, the defendants suggest that “causation in fact” is lacking because, even if they had arrested Caldwell on Saturday afternoon, there is no guarantee that he would have remained in custody until Monday afternoon.

In response, the plaintiff focuses on the officers’ second visit to the Caldwell home on Saturday evening. By Saturday night, the plaintiff argues, the officers should have foreseen that failing to seek out and arrest Caldwell could lead to the victim’s murder. Further, the plaintiff claims that the officers’ failure to “try and find” Caldwell after Saturday night was a proximate cause of the victim’s death on Monday afternoon. We agree with the defendants.

“[L]egal cause is a hybrid construct, the result of balancing philosophic, pragmatic and moral approaches to causation. The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct. . . .

“Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions. . . . The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant’s negligent conduct. ... In negligence cases ... in which a tortfeasor’s conduct is not the direct cause of the harm, the question of legal causation is practically indistinguishable from an analysis of the extent of the tortfeasor’s duty to the [victim].” (Internal quotation marks omitted.) Malloy v. Colchester, 85 Conn. App. 627, 633-34, 858 A.2d 813, cert. denied, 272 Conn. 907, 863 A.2d 698 (2004). The determination of the nature of the legal duty owed, if any, must be rooted in “the fundamental policy of the law that a tortfeasor’s responsibility should not extend to the theoretically endless consequences of the wrong.” (Internal quotation marks omitted.) Id., 634.

“[T]he test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the [victim’s] injuries.” (Internal quotation marks omitted.) Id. To that end, “[t]he question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue. ... It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact.” (Citations omitted; internal quotation marks omitted.) Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 611, 662 A.2d 753 (1995).

Finally, “it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied [the victim’s] injuries to the [defendants’ conduct], . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection. . . . This causal connection must be based upon more than conjecture and surmise.” (Emphasis in original; internal quotation marks omitted.) Malloy v. Colchester, supra, 85 Conn. App. 634.

In accordance with section 442B of the Restatement (Second) of Torts, our Supreme Court has stated that “foreseeable risks” can include the criminals acts of third parties. Doe v. Manheimer, 212 Conn. 748, 767, 563 A.2d 699 (1989), overruled in part on other grounds by Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995). Accordingly, two questions are at the heart of this appeal. First, we must determine whether the victim’s murder was within the scope of foreseeable risk created by the officers’ failure to arrest Caldwell during their first visit to the Caldwell home on Saturday afternoon. Second, we must ascertain whether the defendants’ failure to “try and find” Caldwell in the time following their second visit on Saturday night created a foreseeable risk that he would murder the victim on Monday afternoon.

Common experience suggests that domestic violence is potentially a precursor to murder. As such, it could be argued that this exact chain of unfortunate events was “foreseeable” in the most abstract sense. See, e.g., Kirk v. Shawnee, 27 Kan. App. 2d 946, 10 P.3d 27 (wrongful death action for police failure to protect decedent from estranged husband), review denied, 270 Kan. 898 (2000); Torres v. Anacortes, 97 Wash. App. 64, 981 P.2d 891 (1999) (same), review denied, 140 Wash. 2d 1007, 999 P.2d 1261 (2000). Yet, more than abstract foreseeability is necessary to justify imposing liability on the defendants for their acts and omissions. Satisfaction of the proximate cause element requires proof that “the harm which occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence.” (Internal quotation marks omitted.) Coburn v. Lenox Homes, Inc., 186 Conn. 370, 384, 441 A.2d 620 (1982). As applied to this case, it must have been foreseeable to the officers that failing to arrest Caldwell on Saturday afternoon, or failing to find and arrest him thereafter, would give rise to a risk that Caldwell would commit a fatal or life threatening act of violence against the victim on Monday.

With these principles in mind, we turn first to an examination of the breadth of the “scope of foreseeable risk” created by the officers’ failure to arrest Caldwell on Saturday afternoon. When they arrived at the Caldwell home, the spouses were not in the midst of a fight or an argument. Although the couple stated that their argument the day before had escalated into a physical altercation, neither spouse reported the utilization of weapons during that fight. Additionally, although the officers observed scratches on Caldwell, they did not see any visible bruises or scrapes on the victim. A records check on both spouses revealed that no outstanding arrest warrants, protective orders or restraining orders had been issued against either of them.

None of these facts suggests that on Saturday afternoon the officers should have known that Caldwell was a mortal danger to the victim or that he needed to be arrested immediately to secure the victim’s safety. The officers had no way of knowing that Caldwell had told the victim the day before that he would kill her if she left him. Moreover, the victim herself, who had substantially more knowledge of Caldwell’s personality and capabilities, did not state that she was in physical danger.

On the basis of the facts known to the officers, there would have been no reason for them to foresee, or even to suspect, that Caldwell would shoot the victim two days later. Her murder, therefore, cannot be considered to be within the scope of foreseeable risk created by the officers’ failure to arrest Caldwell on Saturday afternoon. Any other conclusion would effectively “convert the imperfect vision of reasonable foreseeability into the perfect vision of hindsight.” Burns v. Gleason Plant Security, Inc., 10 Conn. App. 480, 486, 523 A.2d 940 (1987).

We now turn to an exploration of the breadth of the scope of foreseeable risk created by the officers’ failure to seek out and arrest Caldwell in the time between their second visit to the Caldwell home on Saturday night and the murder on Monday afternoon. The defendants seemingly acknowledge that, on the basis of the facts gleaned during the officers’ visit on Saturday night, it was foreseeable that Caldwell potentially could seriously injure or kill the victim. They argue, however, that they had no means of arresting him, given their lack of knowledge as to his whereabouts. The defendants further contend that, even if they had found and arrested Caldwell, it is pure speculation to think that he still would have been in custody at the time of the minder on Monday afternoon.

Although characterized as defects in proximate causation, both of these arguments actually attack the “causation in fact” element of the plaintiffs case. Causation in fact, also referred to as actual causation or “but for” causation, explores whether the injury would have occurred in the absence of the defendants’ negligent act or omission. Suarez v. Sordo, 43 Conn. App. 756, 761-62, 685 A.2d 1144 (1996), cert. denied, 240 Conn. 906, 688 A.2d 334 (1997). As our Supreme Court has acknowledged, “[t]he conception of causation in fact extends not only to positive acts and active physical forces, but also to pre-existing passive conditions which have played a . . . part in bringing about the event.” (Internal quotation marks omitted.) Doe v. Manheimer, supra, 212 Conn. 760.

Here, to establish causation the plaintiff must demonstrate, without resort to conjecture, that the murder would not have occurred but for the defendants’ alleged negligence or recklessness. Under these facts, we are persuaded that the plaintiff cannot satisfy that burden. One can only speculate as to whether an attempt on the part of the defendants to “try and find” Caldwell would have succeeded. Furthermore, even if the defendants had found and arrested Caldwell, it is quite possible that he would have been released from custody on Monday morning. The plaintiff has not presented evidence suggesting that, more likely than not, Caldwell would not have been released at his arraignment on Monday morning. Without any assurance that Caldwell would have remained incarcerated on Monday, there is no way to know whether his arrest would actually have prevented the murder.

Although causation in fact is, necessarily, a fact sensitive inquiry, two prior decisions of this court illustrate what is missing here, namely, evidence that the defendants’ negligent omission was a “but for” cause of the resultant harm. In Coste v. Riverside Motors, Inc., supra, 24 Conn. App. 109, this court examined whether an employer’s denial of a request to leave work early during a snowstorm “caused” the employee’s subsequent automobile accident. The plaintiff in Coste asked his manager if he could leave work early on account of the onset of a snowstorm. Id., 110. The request was denied, and the plaintiff left work approximately five hours later, after the weather had worsened considerably. Id., 110-11. During his drive home, ice and snow on the road caused the plaintiff to lose control of his car and crash head on into another vehicle. Id., 111.

In concluding that the plaintiff could not establish causation, this court observed: “Conjecture exists as to whether the harm to the plaintiff would have ensued had the plaintiff . . . left earlier when driving conditions may have been better. Conjecture also exists as to whether the accident would have occurred had the road been better sanded or plowed, or had the plaintiff taken another route home, or had he driven a different make and model car, or had he been a better driver.” Id., 115. Because the nonoccurrence of the defendant’s negligence would not have necessarily changed the outcome, causation was found to be absent in that case.

More recently, in Medcalf v. Washington Heights Condominium Assn., Inc., 57 Conn. App. 12, 747 A.2d 532, cert. denied, 253 Conn. 923, 754 A.2d 797 (2000), this court considered whether the failure of an electronic intercom system was the legal cause of an attack that occurred outside the door to an apartment building. The plaintiff in Medcalf had used the apartment’s intercom system to call her friend upstairs and to announce her arrival. Id., 14. After the intercom system failed to unlock the door remotely, the friend was forced to come downstairs and physically open the door. Id. While the plaintiff was waiting for her friend to come to the door, she was attacked by a third party, resulting in injuries. Id. In concluding that the requisite causal link was absent, we stated that “[t]he injury may likely have occurred without any negligence with respect to the intercom system.” Id., 18. In other words, there was no way of knowing whether the assault would have occurred if the defendants, the condominium association and the property manager, had not negligently failed to take the appropriate action to maintain the intercom system.

Both of those cases involved a complex set of circumstances that, in combination, led undeniably to tragic outcomes. Yet, in Coste there was no way of knowing whether leaving work earlier would have prevented the automobile accident, just as in Medcalf it was impossible to determine whether a functioning electronic intercom system would have thwarted the attack. These are the kind of situations that trigger the application of the basic principle of tort law that “[n]o matter how negligent a party may be, if his act bears no causal relation to the injury, it is not actionable.” Esposito v. Schiff 38 Conn. App. 726, 730, 662 A.2d 1337 (1995).

Here, as in Coste and Medcalf, there are too many variables involved to state with any degree of certainty that the victim’s murder would not have occurred in the absence of the officers’ alleged negligence or recklessness. To reach the opposite conclusion, a jury would first have to suppose that the officers could have found Caldwell in the time preceding the murder. The jury would then have to further assume that, once arrested, Caldwell would not have been released from custody before Monday afternoon. Because there is no evidence in the record on which to make either of those critical inferences, the jury would be forced to resort to sheer speculation. Yet, a determination of causation on the basis of conjecture or speculation is precisely what we cannot permit.

On the basis of these facts, the plaintiff cannot establish the requisite causal relationship between the defendants’ alleged nonfeasance and the victim’s murder two days later. Because causation is an essential element of every cause of action alleged by the plaintiff, we need not address the court’s alternative grounds for rendering summary judgment. We conclude, therefore, that the court properly granted the defendants’ motion for summary judgment on all counts of the complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       Dorothy Alexander also brought this action on behalf of Sheila Caldwell’s two minor children. For simplicity, we will refer to Alexander as the sole plaintiff.

       Besides the town of Vernon, the named defendants are Officer Daniel Moore, Officer Darrin Tranter, Officer Steven Ciarleglio, Officer Kevin Slater, Sergeant Paul Jabs, Lieutenant Roger Barker and Chief of Police Rudolph Rossmy. We will refer to the town of Vernon and all of the other named individuals collectively as the defendants.

       General Statutes § 7-465 (a) provides in relevant part: “Any town, city or borough . . . shall pay on behalf of any employee of such municipality ... all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law for damages awarded for infringement of any person’s civil rights or for physical damages to person or property ... if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical iqjury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty. ...”

         In the alternative, the court concluded that summary judgment was appropriate because the officers were entitled to qualified governmental immunity for their actions, and their nonfeasance did not amount to recklessness as a matter of law. The court then held that the elimination of the plaintiffs causes of action against the officers necessarily eradicated any right to indemnification under General Statutes § 7-465.

       In holding that the plaintiff could not establish causation, the court presumed the existence of a legal duty to seek out and arrest Caldwell, as well as a breach thereof. Accordingly, our review of the court’s determination will assume similarly, without deciding, that the officers negligently breached this legal duty owed to the victim.
      We do not address the third allegation in the complaint that the officers breached a legal duty to “protect” the victim because the plaintiff never clarified the precise nature of any such duty, and the court made no findings or conclusions relating to that issue. Furthermore, as our Supreme Court has noted, “[t]he law does not recognize a duty in the air.” (Internal quotation marks omitted.) Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 171, 544 A.2d 1185 (1988).

       The plaintiff makes the additional argument that the “tenor and language” of the memorandum of decision reveal that the court improperly applied a “sole proximate cause standard.” In particular, the plaintiff argues that the court used the word “the” instead of “a” when referring to proximate cause.
      As a factual matter, we cannot find the phrase “the proximate cause” anywhere in the memorandum of decision. In any event, this court previously has rejected this exact argument. See Tripp v. Anderson, 1 Conn. App. 433, 439, 472 A.2d 804 (1984). As in that case, we cannot permit the plaintiff here “by a linguistic tour de force, [to] convert the words ‘the proximate cause’ into ‘the sole proximate cause.’ ” Id.


author: GRUENDEL, J.

text:
    MICHELLE ROMAN v. CITY OF BRISTOL ET AL.
    (AC 27013)
    Schaller, Gruendel and Rogers, Js.

      Argued December 7, 2006
    officially released June 5, 2007

      Thomas R. Gerarde, with whom, on the brief, were Jay T. DonFrancisco and Jeffrey E. Potter, for the appellants (defendants-third party plaintiffs).

      Heather J. Adams-Beman, with whom, on the brief, was Joel J. Rottner, for the appellee (third party defendant).
   Opinion

GRUENDEL, J.

The principal issue in this appeal concerns the enforceability of a hold harmless clause in a lease for the use of a recreational and training facility operated by the defendants and third party plaintiffs, the city of Bristol and Tibor Flothman, and leased to the third party defendant, Community Renewal Team, Inc., and the East Hartford Juvenile Justice Center. On appeal, the third party plaintiffs claim that in rendering summary judgment in favor of the third party defendant, the trial court improperly (1) determined that the language in the parties’ agreement did not require the third party defendant to hold harmless and indemnify them for any and all acts, (2) applied the law applicable to an exculpatory clause as opposed to an allocation of costs clause, (3) applied the standard set forth in Hyson v. White Water Mountain Resorts of Connecticut, Inc., 265 Conn. 636, 829 A.2d 827 (2003), as opposed to that set forth in B & D Associates, Inc. v. Russell, 73 Conn. App. 66, 807 A.2d 1001 (2002), and (4) determined that there was no genuine issue of material fact that the third party defendant complied with its contractual obligations by providing a certificate of insurance. We agree with the third and fourth claims and accordingly reverse the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of the third party plaintiffs’ appeal. On June 27, 2003, the third party defendant signed a rental agreement that included the rental fee and the date and time for use of the Pine Lake Challenge Course (course), a recreational ropes course owned by and located in the city of Bristol. In addition, the contract contained the following language:

“4. The Lessee agrees to provide the lessor with a Certificate of Insurance naming the City of Bristol as additional insured at least five (5) days prior to its use of the course facilities. It should reflect a minimum general liability of $1,000,000 (combined single limit) of bodily injury and property damage per occurrence and aggregate. The date(s) and raindate(s) of using the Challenge Course must be listed on the certificate. . . .

“5. It is agreed and understood that the City of Bristol, the lessor, and all Challenge Course instructors, shall be held harmless for any and all injuries and or personal loss sustained by members and/or guests of the lessee while on or using the property or equipment owned or rented by the lessor.”

On July 2, 2003, Michelle Roman, the plaintiff and an employee of Community Renewal Team, Inc., was participating in an activity at the course, purportedly pursuant to the written rental agreement between the parties. 6During the activity, she was to “ascend to an elevated platform and perform a free fall with a rope,” but Flothman, a course instructor for the city of Bristol, failed to catch the rope and to break Roman’s fall, causing Roman to suffer substantial injuries. On January 16, 2004, Roman filed a three count complaint against the third party plaintiffs for injuries she allegedly sustained as a result of the accident.

On May 21, 2004, the third party plaintiffs filed a motion to implead the third party defendant, and, on August 9,2004, they filed a two count complaint against it for breach of contract and indemnification. The first count of the complaint alleged that the third party defendant breached the rental agreement by (1) not holding them harmless, (2) not providing them with a legal defense and (3) failing to secure and maintain an adequate and proper liability insurance policy. In the second count, the third party plaintiffs alleged that they were entitled to indemnification due to the breach of the agreement. On January 5,2005, the third party defendant filed a motion for summary judgment, arguing that the indemnification provision in the rental agreement did not specify that Community Renewal Team, Inc., would be liable to the city of Bristol for the city’s own negligence, and therefore the third party defendant was not obligated to hold the third party plaintiffs harmless and to provide them with indemnification. On January 19, 2005, the third party plaintiffs filed an objection, and a hearing was conducted on May 2, 2005. The court issued a memorandum of decision on August 30, 2005, granting the motion for summary judgment. This appeal followed.

As an initial matter, we set forth the applicable standard of review. “Summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.” (Internal quotation marks omitted.) Bebry v. Zanauskas, 81 Conn. App. 586, 589, 841 A.2d 282 (2004). “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. 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. . . . Our review of the trial court’s decision to grant [a] motion for summary judgment is plenary.” (Citation omitted; emphasis added; internal quotation marks omitted.) R.T. Vanderbilt Co. v. Continental Casualty Co., 273 Conn. 448, 455-56, 870 A.2d 1048 (2005).

I

We first address the legal principles governing exculpatory clauses inserted into contracts. In Hyson v. White Water Mountain Resorts of Connecticut Inc., supra, 265 Conn. 636, the plaintiff was injured while snowtubing at a facility in Middlefield known as Powder Ridge and, thereafter, filed a complaint against the defendant, White Water Mountain Resorts of Connecticut, Inc., alleging that the defendant’s negligence proximately had caused her injuries. Id., 637-39. Prior to snowtubing at Powder Ridge, the plaintiff had signed an exculpatory agreement entitled “RELEASE FROM LIABILITY.” Id., 637, 638 n.3. The issue presented in Hyson was whether the exculpatory agreement released the defendant from liability for its negligent conduct and, consequently, barred the plaintiffs negligence claims as a matter of law. Id., 640. Our Supreme Court concluded that it did not. Id.

After a detailed analysis of the agreement at issue and the interpretation of indemnification agreements in other jurisdictions, the court concluded that “a party cannot be released from liability for injuries resulting from its future negligence in the absence of language that expressly so provides. The release signed in [Hyson] illustrates the need for such a rule. A person of ordinary intelligence reasonably could believe that, by signing this release, he or she was releasing the defendant only from liability for damages caused by dangers inherent in the activity of snowtubing. A requirement of express language releasing the defendant from liability for its negligence prevents individuals from inadvertently relinquishing valuable legal rights. . . . Because the release signed by the plaintiff . . . did not expressly provide that, by signing it, she released the defendant from liability for damages resulting from its negligence, the trial court improperly granted the defendant’s motion for summary judgment.” (Emphasis added.) Id., 643-44.

Less than one year prior to our Supreme Court’s decision in Hyson, this court decided B & D Associates, Inc. v. Russell, supra, 73 Conn. App. 66, in which the plaintiff, a commercial tenant, brought an action sounding in negligence against the defendant landlord for losses the plaintiff had incurred as a result of a fire. Thereafter, the defendant moved for summary judgment, claiming that a provision in the parties’ lease released him from all liability. Id., 68. The lease in that case provided that the tenant bore the risk of loss and would not hold the landlord liable for any damage or loss that occurred for any reason. Id., 68-69. After the trial court granted the defendant’s motion for summary judgment on the basis of the release, the plaintiff appealed to this court, claiming that the lease provision did not release the defendant from liability stemming from his own negligence. Id., 70. Thereafter, this court determined that the lease provision released the defendant from liability for any negligence, explaining that “[t]he law does not favor contract provisions which relieve a person from his own negligence. . . . Such provisions, however, have been upheld under proper circumstances. . . . [T]he law’s reluctance to enforce exculpatory provisions of this nature has resulted in the development of an exacting standard by which courts measure their validity. So, it has been repeatedly emphasized that unless the intention of the parties is expressed in unmistakable language, an exculpatory clause will not be deemed to insulate a party from liability for his own negligent acts .... Put another way, it must appear plainly and precisely that the limitation of liability extends to negligence or other fault of the party attempting to shed his ordinary responsibility ....

“When applied to contracts to which the parties are sophisticated business entities, the law, reflecting the economic realities, will recognize an agreement to relieve one party from the consequences of his negligence on the strength of a broadly worded clause framed in less precise language than would normally be required, though even then it must evince the unmistakable intent of the parties . . . .” (Citations omitted; emphasis added; internal quotation marks omitted.) Id., 72-73, quoting Gross v. Sweet, 49 N.Y.2d 102, 107-108, 400 N.E.2d 306, 424 N.Y.S.2d 365 (1979).

Both cases offer examples of the validity or invalidity of exculpatory agreements. In B & D Associates, Inc., this court stated that less precise language is required when one contracting party among “sophisticated business entities” seeks to relieve itself of its own negligence; id., 73; implicitly concluding that such an exculpatory clause could be valid. In Hyson and its later progeny; see footnote 7; our Supreme Court concluded that, in a recreational setting in which there is a distinct inequity in bargaining power between the parties, imprecise hold harmless language is fatal to the legal merit of the agreement, despite the parties’ intent.

The court in the present case stated: “The third party plaintiffs argue that because both parties are business entities, this court should follow the reasoning expressed in B & D Associates, Inc.-, however, this argument fails to consider the more fundamental policy considerations inherent in arriving at that decision. While the third party defendant in the present case may be more akin to a sophisticated business entity than an individual, the agreement shares none of the characteristics of a commercial lease that is freely negotiated between two business entities for an extended period of time. The terms of the agreement were neither negotiated nor bargained for; rather, the agreement was a preprinted rental form that the city of Bristol drafted for use by its customers. Most importantly, the broadly worded language used in the hold harmless clause does not adequately put the third party defendant on notice that the third party plaintiffs were seeking to negate liability for their own acts of negligence. Based on these undisputed facts and absent a clear indication in the agreement that the third party defendant was releasing the third party plaintiffs from liability for their own negligence, this court follows the reasoning expressed in Hyson. . . . The agreement did not expressly state that the third party plaintiffs would be held harmless for their own acts of negligence and, therefore, the third party defendant had no contractual obligation to hold harmless the third party plaintiffs and was not obligated to provide indemnification.” (Citation omitted.)

We decline to determine whether the agreement expressly stated that the third party plaintiffs would be held harmless for their own acts of negligence because we conclude that there exists a genuine issue of material fact regarding whether the parties are “sophisticated business entities,” in which case such explicit language could be unnecessary. See B & D Associates, Inc. v. Russell, supra, 73 Conn. App. 73. The court found that the third party defendant “may be more akin to a sophisticated business entity than an individual,” but attempted to distinguish B & D Associates, Inc., by stating that “the agreement shares none of the characteristics of a commercial lease that is freely negotiated between two business entities for an extended period of time.” We are not unmindful that the agreement in B & D Associates, Inc., involved a commercial lease that likely was negotiated over an extended period of time; nevertheless, nothing in the case indicates that either of these factors is a prerequisite for a valid hold harmless agreement. On the contrary, B & D Associates, Inc., contains broad language that applies merely to “sophisticated business entities.” The record reveals that the relative bargaining position of the parties was at issue in both parties’ memoranda of law regarding the motion for summary judgment, and the issue was argued during the May 2, 2005 hearing. We conclude that a genuine issue of material fact existed regarding the relative bargaining position of the parties, the resolution of which would determine whether to apply B & D Associates, Inc., or Hyson to the present case.

II

The third party plaintiffs also assert that the court improperly determined that there was no genuine issue of material fact that the third party defendant complied with its contractual obligations under paragraph four of the agreement, which required that it provide a certificate of insurance at least five days prior to its use of the facility, naming the city of Bristol as an additional insured. We agree.

The court determined that a certificate of insurance naming the city as an additional insured had been obtained by the third party defendant. There appears to be no dispute that such a certificate had been obtained. Nevertheless, that does not end the inquiry. The agreement between the parties did not call simply for the issuance of a certificate of insurance. It also provided that the certificate “should reflect a minimum general liability of $1,000,000 (combined single limit) of bodily injury and property damage per occurrence and aggregate.” In other words, the agreement called not only for a certificate of insurance but also for the protection provided by such a certificate.

In the record before the trial court, however, were allegations that the insurance company that had issued the certificate of insurance had denied coverage on the claim.

The third party defendant argued as much in its brief in opposition to the third party plaintiffs’ objection to summary judgment, noting that the third party defendant had initiated suit against the insurance company and invited the city to do so as well. In the face of this unresolved issue, we conclude that there was a question of material fact. Summary judgment was, therefore, inappropriate.

The judgment is reversed and the case is remanded with direction to deny the third party defendant’s motion for summary judgment and for further proceedings in accordance with law.

In this opinion the other judges concurred.

       Hereinafter, we refer to the city of Bristol and Tibor Flothman collectively as the third party plaintiffs.

       The East Hartford Juvenile Justice Center comprises one of the many programs that Community Renewal Team, Inc., administers. Therefore, we refer to both entities collectively as the third party defendant.

       We do not reach the first and second claims because our analysis of the third and fourth claims provides appropriate guidance to the court regarding the interpretation of the language of the agreement and the applicable law. The issues will be litigated further when the case is remanded.

       The court found that the contract was executed by the third party defendant on July 2, 2003, the same date of the incident that led to this lawsuit. The contract, however, was issued by the city on June 9,2003, and executed by the third party defendant on June 27, 2003.

       The agreement described the participants as twelve to sixteen year old children, and Roman was an adult employee of Community Renewal Team, Inc.

       The complaint originally was filed against the city of Bristol and “John Doe.” Subsequently, Roman filed an amended complaint on October 14, 2004, in which Flothman was substituted for “John Doe.”

       About three months after the release of the memorandum of decision in the present case, our Supreme Court had the opportunity to decide an issue that it explicitly had left unresolved in Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 636, namely, “whether the enforcement of a well drafted exculpatory agreement purporting to release a snowtube operator from prospective liability for personal injuries sustained as a result of the operator’s negligent conduct violates public policy.” (Emphasis added.) Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 326, 885 A.2d 734 (2005) (en banc). The court concluded that it did. Id., 335-36 (“the agreement in the present matter affects the public interest adversely and, therefore, is unenforceable because it violates public policy”). The Hanks decision has been instrumental in two recent Supreme Court cases. See Brown v. Soh, 280 Conn. 494, 909 A.2d 43 (2006) (exculpatory agreement signed by plaintiff as condition of employment violative of public policy); Reardon v. Windswept Farm, LLC, 280 Conn. 153, 905 A.2d 1156 (2006) (release signed by plaintiff prior to horseback riding lessons at defendant’s equestrian facility invalid as matter of public policy).

       Our Supreme Court in Hyson, in acknowledging this court’s decision in B&D Associates, Inc., declined to consider specific language requirements for the effective release of liability in commercial leases. See Hyson v. White Water Mountain Resorts of Connecticut, Inc., supra, 265 Conn. 640 n.6.

       As the third party plaintiffs aptly point out in their brief, “[a]lthough the lease was for a term of one day, businesses often rent facilities and equipment for short time periods. For example, if a contractor rents a 100 ton crane for only one day to place a steeple on a church, the lease for the crane is clearly a commercial lease even though it is only for one day.” As opposed to a release from liability that is signed by a participant in a recreational activity, akin to that signed in Hyson, the rental agreement in this case was signed days in advance. In addition, the requirement that the third party defendant provide the city of Bristol with a certificate of insurance “at least five (5) days prior to its use of the course facilities” further distinguishes this case from Hyson.