author: FOTI, J.

text:
    STATE OF CONNECTICUT v. GLENN STEWART
    (AC 18813)
    Foti, Spear and Dupont, Js.
    Argued May 1
    officially released July 17, 2001

      Richard E. Condon, Jr., special deputy assistant public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., senior assistant state’s attorney, with whom, on the brief, were Eugene Callahan, state’s attorney, and Steven G. Weiss, supervisory assistant state’s attorney, for the appellee (state).
   Opinion

FOTI, J.

This case returns to the Appellate Court on remand from our Supreme Court. State v. Stewart, 255 Conn. 913, 763 A.2d 1039 (2000). The defendant, Glenn Stewart, originally appealed to this court from the judgment of conviction, rendered after a jury trial, of manslaughter in the second degree in violation of General Statutes § 53a-56 (a) (1) and evasion of responsibility in the operation of a motor vehicle in violation of General Statutes § 14-224 (a).

In his original appeal to this court, the defendant asserted that the trial court improperly (1) denied his motion for a judgment of acquittal because the evidence was insufficient to convict him of either charge, (2) failed to instruct the jury, as required by statute, that it coúld draw no unfavorable inferences from his failure to testify, (3) precluded evidence that the child victim died because she and her safety seat were not properly secured, and (4) failed to instruct the jury adequately on the essential element of. causation. We resolved issues one, three and four against the defendant, and resolved issue two in the defendant’s favor, thereby reversing the judgment of conviction and remanding the case for a new trial. State v. Stewart, 60 Conn. App. 301, 759 A.2d 142, remanded, 255 Conn. 913, 763 A.2d 1039 (2000).

After the defendant filed his brief in the original appeal to this court, the state filed a motion for permission to file a late motion for articulation or rectification. The state sought an articulation from the trial court as to whether, during a charging conference held in chambers, the defendant’s trial attorney had requested that the court omit from its charge the “no unfavorable inferences” instruction at issue in the appeal. On February 9, 2000, we denied the state’s motion.

On October 10, 2000, we officially released our decision on the defendant’s appeal. We held, with respect to the issue concerning the omission of the “no unfavorable inferences” instruction, that there was no record of any conference at which the defendant’s attorney requested that the court omit the instruction from its charge and that the court’s failure to so charge constituted plain error. Id., 309. We relied on our decision in State v. Suplicki, 33 Conn. App. 126, 634 A.2d 1179 (1993) , cert. denied, 229 Conn. 920, 642 A.2d 1216 (1994) .

On December 5, 2000, our Supreme Court granted the state’s petition for certification limited to the following issues: “1. Did the Appellate Court properly conclude that, under the facts of this case, the trial court’s failure to give a ‘no unfavorable inferences’ instruction was plain error requiring reversal of the conviction? 2. Is the failure to include such an instruction subject to harmless error analysis?” State v. Stewart, 255 Conn. 913, 763 A.2d 1039 (2000). Our Supreme Court also “ordered that the trial court articulate the facts concerning discussions, if any, among the state’s attorney, defense counsel and the court during a charging conference, relative to the court’s giving a ‘no unfavorable inferences’ instruction to the jury in this matter.” Id.

On December 14,2000, the trial court filed its articulation. On January 25, 2001, after receiving the trial court’s articulation, our Supreme Court remanded the matter to this court “for reconsideration of whether the failure to give the instruction, under the circumstances of this case, was plain error requiring the reversal of the conviction.” Id. We answer that question in the negative and, accordingly, affirm the judgment of the trial court.

The defendant argues that the court committed plain, reversible error by omitting the “no unfavorable inferences” instruction from its jury charge. He asserts that the instruction implicated his fundamental right not to testify, which only he could exercise. As such, he argues, it necessarily follows that “the accused must personally waive his statutory right to the protections of General Statutes § 54-84 (b).” The defendant urges us to accept his interpretation of the statute, arguing that it “requires the court to ask the accused personally whether he or she desires to waive the otherwise mandatory [instruction].” The defendant argues that because the court never conducted that inquiry, it committed plain error.

The relevant facts underlying the defendant’s conviction, as the jury reasonably could have found them, were set out in this court’s first opinion in this matter. State v. Stewart, supra, 60 Conn. App. 301. A summary of those facts will suffice here. On April 8,1996, Ioanna Schmidt and her four month old daughter, Arianna, were traveling on the southbound lane of Interstate 95 in Stamford. The weather conditions that evening were a wintry mix of snow and rain. Schmidt was driving a Toyota Corolla, and her daughter was buckled into her seat in the back of the vehicle. Lori Bonante was also traveling in the southbound lane at the same time as Schmidt.

Near exit two, Bonante, traveling in the right lane, noticed a large tractor trailer approach her from behind. The truck, operated by the defendant, maintained a distance of only a few inches from the rear of Bonante’s vehicle for a distance of about one mile. After Schmidt, traveling in the center lane, passed the defendant’s truck, the defendant moved from behind Bonante’s vehicle into the center lane. Bonante decelerated her vehicle, affording Schmidt an opportunity to get out of the defendant’s lane. As Schmidt moved from the center lane to the right lane, the defendant accelerated his tractor trailer, striking the left rear portion of her vehicle.

The impact caused Schmidt’s vehicle to careen across the right lane, enter a grassy area and collide with a tree. Arianna was ejected from the vehicle as it collided with the tree. Arianna died from her injuries approximately six weeks after the accident.

Alter the accident, the defendant pulled his tractor trailer to the left lane, stopped and walked back to the scene of the accident. Shortly thereafter, he returned to his truck and drove away without speaking to anyone at the scene. Some ten months later, the state police determined that the defendant was operating the truck at the time of the accident. On February 23, 1997, the state police arrested the defendant who, after initially indicating that he possessed a poor recollection concerning the events surrounding the accident, admitted that he must have been the truck’s operator. Id., 303-305.

At trial, the defendant did not raise the issue that the court improperly omitted the “no unfavorable inferences” instruction from its charge to the jury. On appeal, however, he concedes that his trial counsel specifically requested that the court take the action he now challenges. He nevertheless argues that the court committed plain error, which warrants the reversal of the judgment of conviction. Our Supreme Court has observed in several opinions that “ ‘plain error is not even implicated unless the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings. State v. Boles, 223 Conn. 535, 551, 613 A.2d 770 (1992).’ . . . State v. Cassidy, 236 Conn. 112, 144, 672 A.2d 899, cert. denied, 519 U.S. 910, 117 S. Ct. 273, 136 L. Ed. 2d 196 (1996), overruled on other grounds, State v. Alexander, 254 Conn. 290, 755 A.2d 868 (2000). Although, on rare occasions, we have granted plain error review for claims of improper jury instructions . . . we have done so only when the instruction in question either failed to include language from a mandatory charging statute, or when the instruction was so patently improper that to allow it to stand uncorrected would work a manifest injustice.” (Citations omitted.) State v. Kelly, 256 Conn. 23, 58 n.18, 770 A.2d 908 (2001); see also Practice Book § 60-5.

The United States Supreme Court, in Carter v. Kentucky, 450 U.S. 288, 101 S. Ct. 1112, 67 L. Ed. 2d 241 (1981), discussed the fundamental importance of a “no adverse inference” instruction and its relation to the constitutional privilege against self-incrimination embodied in the fifth amendment to the United States constitution. The Supreme Court noted that “[t]he principles enunciated in our cases construing this privilege, against both statutory and constitutional backdrops, lead unmistakably to the conclusion that the Fifth Amendment requires that a criminal trial judge must give a ‘no adverse-inference’ jury instruction when requested by a defendant to do so.” Id., 300.

The Supreme Court underscored the significance of such an instruction in light of the tendency of jurors to view a criminal defendant’s fifth amendment privilege “as a shelter for wrongdoers . . . [and jurors who] too readily assume that those who invoke it are . . . guilty of crime . . . .” (Internal quotation marks omitted.) Id., 302. The court stated that “[a] trial judge has a powerful tool at his disposal to protect the constitutional privilege — the jury instruction — and he has an affirmative constitutional obligation to use that tool when a defendant seeks its employment. No judge can prevent jurors from speculating about why a defendant stands mute in the face of a criminal accusation, but a judge can, and must, if requested to do so, use the unique power of the jury instruction to reduce that speculation to a minimum.” Id., 303.

“The provisions of § 54-84 (b) are more stringent than the federal or state constitutions require. . . . While the constitutional right to a no adverse inference charge depends upon the defendant’s request of such a charge, the statutory right is conferred upon the defendant unconditionally, in the absence of his request that the charge not be given. . . . Our legislature has prescribed the language provided in § 54-84 (b) to be the jury instruction that must be given to reduce speculation to a minimum.” (Citations omitted; internal quotation marks omitted.) State v. Thurman, 10 Conn. App. 302, 309, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).

Our Supreme Court has noted that the legislature, in enacting § 54-84, established anew statutory procedure to protect the rights of those accused persons who choose not to testify. “Where the legislature has chosen specific means to effectuate a fundamental right, failure to follow the mandatory provisions of the statute is plain error . . . .” State v. Burke, 182 Conn. 330, 331-32, 438 A.2d 93 (1980). Moreover, our Supreme Court has “regularly characterized as error any but the most minor departure from the language that § 54-84 (b) requires.” State v. Sinclair, 197 Conn. 574, 583, 500 A.2d 539 (1985).

Although our state’s appellate courts have, on several occasions, reviewed unpreserved claims of instructional error concerning § 54-84 (b), we have not had occasion to consider the issue presented by the circumstances of the present case.

General Statutes § 54-84 (b) provides in relevant part that “[u]nless the accused requests otherwise,” the court shall provide the jury with a “no unfavorable inferences” instruction in its charge. (Emphasis added.) General Statutes § 54-84 (b). The issue before us is whether the statute requires, as the defendant argues, that the court inquire expressly of the defendant whether he or she wants the court to omit that instruction from its charge or whether, as the state argues, the defendant’s attorney could waive that protection on the defendant’s behalf. We agree with the state.

We begin our analysis by examining the language of § 54-84 (b). As in any exercise of statutory interpretation, “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.” (Internal quotation marks omitted.) Marrocco v. Giar dino, 255 Conn. 617, 624, 767 A.2d 720 (2001). “In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment . . . .” (Internal quotation marks omitted.) Animal Rights Front v. Rocque, 63 Conn. App. 207, 211, 772 A.2d 769, cert. denied, 256 Conn. 936, 776 A.2d 1149 (2001). Furthermore, “statutory language should be given its plain and ordinary meaning.” (Internal quotation marks omitted.) Peabody N.E., Inc. v. Dept. of Transportation, 250 Conn. 105, 122, 735 A.2d 782 (1999). We refrain from reading into statutes provisions that are not clearly stated and interpret statutory intent by “referring to what the legislative text contains, not by what it might have contained.” (Internal quotation marks omitted.) Winchester v. Northwest Associates, 255 Conn. 379, 388, 767 A.2d 687 (2001).

Our review of the legislative history of § 54-84 (b) reveals that the legislature merely sought to make the instruction mandatory, absent a request to the contrary. We do not find in the legislative history support for the defendant’s position that a court need inquire of the accused directly after it receives a request from his or her attorney to omit the instruction. Black’s Law Dictionary (6th Ed. 1990) defines “accused” as “[t]he generic name for the defendant in a criminal case. . . .” In ascertaining the customary use of the word, we will not ignore the important fact that once counsel undertakes representation of an accused, he or she acts on the accused’s behalf within the scope of his or her representation. Absent some indication to the contrary, a court is entitled to rely on counsel’s representations on behalf of his or her client.

We find persuasive our Supreme Court’s reasoning in State v. Santiago, 245 Conn. 301, 715 A.2d 1 (1998). The issue before the court in that case was whether the trial court improperly deprived the defendant of his constitutional right to aprobable cause hearing because it permitted his attorney, without the defendant’s consent or knowledge, to request a postponement of the hearing beyond the statutorily prescribed period of sixty days. Id., 313. General Statutes § 54-46a (b) provides in relevant part: “Unless waived by the accused person or extended by the court for good cause shown, such preliminary hearing shall be conducted within sixty days of the filing of the complaint or information in Superior Court. . . .” (Emphasis added; internal quotation marks omitted.) State v. Santiago, supra, 313. Our Supreme Court rejected the defendant’s claim that the defendant himself must have made the waiver and that his attorney could not have made it on his behalf. Id., 313-14.

The Supreme Court reasoned that a personal, express waiver of the defendant’s statutory protection was not required; such waiver may be implied by the actions of the attorney acting on his behalf. The legislature’s use of the word “accused” in § 54-46a (b) did not require that the trial court inquire of the accused directly concerning his waiver of the statutory right. Further, the Supreme Court noted that waiver of the statutory right “certainly can be found from a specific request by counsel for a postponement.” Id., 315. While the court recognized that “[i]n some circumstances, a waiver of rights must be knowing, voluntary and intelligent, and it must be expressly made. ... In other circumstances, waiver can be implied . . . [and] [t]he waiver can be made by counsel . . . .” (Internal quotation marks omitted.) Id., 315-16. The defendant did not have a constitutional right to be canvassed personally as to his waiver of the jury instruction at issue in the present case.

Although we rely on our Supreme Court’s prior interpretation of “accused,” we also find considerable support for our interpretation of the word from well settled principles in our law. We can discern no support, and the defendant fails to bring any to our attention, for the defendant’s assertion that the court was required to conduct this type of inquiry, or ask him directly, concerning the jury instruction at issue in this case after his counsel had requested that the court omit the instruction. To the contrary, our law recognizes a distinction between matters that are within the province of a criminal defendant and those that are within the province of his or her counsel.

“It is . . . recognized that the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal . . . .” (Citations omitted; internal quotation marks omitted.) State v. Davis, 199 Conn. 88, 95, 506 A.2d 86 (1986); see also State v. Morico, 14 Conn. App. 140, 144-45, 539 A.2d 1033, cert. denied, 208 Conn. 812, 546 A.2d 281 (1988). However, “[o]nce counsel is appointed, the day-to-day conduct of the defense rests with the attorney. He, not the client, has the immediate — and ultimate — responsibility of deciding if and when to object, which witnesses, if any to call, and what defenses to develop. Not only do these decisions rest with the attorney, but such decisions must, as a practical matter, be made without consulting the client.” (Internal quotation marks omitted.) State v. Davis, supra, 95, citing Wainwright v. Sykes, 433 U.S. 72, 93, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977); see also rule 1.2 (a) of the Rules of Professional Conduct.

In Davis, a defendant, who was represented at trial by counsel, argued that our state constitution conferred on him the ultimate decision-making right to call witnesses on his behalf. In rejecting his claim, our Supreme Court reasoned that such a decision is commonly regarded as tactical or strategic in nature. State v. Davis, supra, 199 Conn. 96. The court’s analysis of that issue is illuminating because it underscores the principle that “decisions concerning matters of trial strategy and tactics rest with the lawyer, as opposed to decisions concerning . . . inherently personal rights of fundamental importance to the defendant . . . .” Id., 95; see also State v. Hedman, 62 Conn. App. 403, 772 A.2d 603, (discussing fundamental posttrial right of defendant to allocution prior to imposition of sentence), cert. granted on other grounds, 256 Conn. 909, 772 A.2d 602 (2001). It is well established that “ ‘[w]e may assume with confidence that most counsel, whether retained or appointed, will protect the rights of an accused.’ Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980).” State v. Davis, supra, 100.

We conclude that decisions concerning the composition of a jury charge fall into the category of decisions concerning matters of trial strategy. Although the right not to testify is personal to the accused, the decision as to whether a court should include an instruction, pursuant to § 54-84 (b), regarding an accused’s decision not to testify is a matter of trial strategy. There is little uncertainty about the fact that the defendant’s counsel made a strategic and tactical decision concerning the instruction at issue in the present case. Counsel “persisted” in asking the court to omit the instruction from its charge. The court reminded counsel of the statute and of the fact that the instruction was already a part of its base charge. Counsel, nonetheless, did not want to “highlight” the defendant’s failure to take the witness stand. See footnote 4. Although it would not change our analysis, the defendant does not assert in his brief to this court that he disagreed with counsel’s decision or that counsel did not follow his wishes concerning the issue.

The defendant relies on our Supreme Court’s decision in State v. Burke, supra, 182 Conn. 330. In Burke, the court found plain error where a trial court failed to include the instruction set forth in § 54-84 (b) despite the fact that defendant’s counsel failed to except to the court’s omission of the instruction at the close of the charge. Burke required courts to follow the plain language of the statute, but it did “suggest that prior to delivering the charge to the jury, the trial court, in the absence of the jury, inquire of the defendant and of counsel if they would like the court to instruct the jury that jurors may not draw unfavorable inferences from the defendant’s failure to testify.” (Emphasis added.) Id., 334. The present case is distinguishable from Burke. Here, the defendant’s counsel, certainly purporting to act on the defendant’s behalf, specifically told the court, on two separate occasions, that he wanted the court to omit the instruction from its charge. Where, as in Burke, it would be better practice as a means of complying with the statute for the court to conduct such an inquiry, or to state in open court on the record that the defendant, through his counsel, had requested the omission, the court did not need to do so here.

Likewise, the defendant’s reliance on State v. Sinclair, supra, 197 Conn. 574, and State v. Carter, 182 Conn. 580, 438 A.2d 778 (1980), is of no avail. In those cases, as in Burke, the court omitted the instruction from its charge, and the defendant failed to except to the omission at trial. The failure to give the instruction, in the absence of a request to the contrary, is plain error. The present case presents a different issue.

We hold, therefore, that the court did not improperly fail to inquire expressly of the accused, after Ms counsel requested that the court omit the instruction, whether he also wanted the court to omit the instruction from its charge. General Statutes § 54-84 (b) does not so require, and it was well within the province of the defendant’s trial counsel to make the tactical and strategic decision to request that the court omit the instruction from its charge. As we have stated, plain error review is “reserved for truly extraordinary situations” in which an error is so obvious that it affects the integrity of the proceeding. (Internal quotation marks omitted.) State v. Cosby, 44 Conn. App. 26, 39, 687 A.2d 895 (1996), cert. denied, 240 Conn. 910, 689 A.2d 474 (1997). The present case does not implicate such concerns.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-56 (a) provides in relevant part: “A person is guilty of manslaughter in the second degree when: (1) He recklessly causes the death of another person . . . .”

       General Statutes § 14-224 (a) provides: “Each person operating a motor vehicle who is knowingly involved in an accident which causes serious physical injury, as defined in section 53a-3, to or results in the death of any other person shall at once stop and render such assistance as may be needed and shall give his name, address and operator’s license number and registration number to the person injured or to any officer or witness to the death or serious physical injury of any person, and if such operator of the motor vehicle causing the death or serious physical injury of any person is unable to give his name, address and operator’s license number and registration number to the person injured or to any witness or officer, for any reason or cause, such operator shall immediately report such death or serious physical injury of any person to a police officer, a constable, a state police officer or any inspector of motor vehicles or at the nearest police precinct or station, and shall state in such report the location and circumstances of the accident causing the death or serious physical injury of any person and his name, address, operator’s license number and registration number.”

       The defendant’s claim in his original appeal, and the subject of this appeal, is based on General Statutes § 54-84, which provides: “(a) Any person on trial for crime shall be a competent witness, and at his or her option may testify or refuse to testify upon such trial. The neglect or refusal of an accused party to testify shall not be commented upon by the court or prosecuting official, except as provided in subsection (b) of this section.
      “(b) Unless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.”

       The court explained in its articulation that at the end of the first day of evidence, the court requested that both parties provide it with preliminary requests to charge no later than April 16, 1998. Both parties complied with the court’s request. After the conclusion of evidence, on April 17, 1998, the court conducted an in-chambers preliminary charging conference with counsel for both the state and the defendant.
      The court reviewed the preliminary requests to charge during the conference. The ‘'defendant’s counsel made a specific request that the court omit any reference to the defendant’s failure to testify. The court reminded counsel of its obligation under [General Statutes §] 54-84 (b). The court further advised that [the] ‘no unfavorable inferences’ instruction was part of the court’s base charge. . . .
      “Nonetheless, defendant’s counsel persisted in asking the court not to comment on his client’s failure to testify. In doing so, counsel stressed the word ‘highlight’ in using the phrase, T don’t want to highlight his failure to testify.’”

        The court further explained that it noted the request of the defendant’s counsel on the court’s copy of the defendant’s request to charge. The court appended a copy of that notation on the charge to its articulation.
      On April 20,1998, the court continued its charging conference with counsel in chambers. After disclosing to counsel the substance of its charge, the court once again inquired of the defendant’s counsel whether he still wanted the court to omit the mandatory “no unfavorable inferences” charge. “Defendant’s counsel reiterated that he did not wish the court to ‘highlight’ his client’s failure to take the stand and requested the charge not be given.” The court added a second notation to that effect on its copy of the charge.
      After the court delivered its charge to the jury, the defendant’s counsel did not take exception to the court’s failure to instruct the jury in accordance with General Statutes § 54-84 (b).

       On February 21, 2001, we granted the defendant’s motion to permit the parties to simultaneously file supplemental briefs to this court concerning this issue.

       Practice Book § 60-5 provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court. . . .”

       During discussion in our Senate of the legislation that later was codified as General Statutes § 54-84 (b), the legislation’s sponsor remarked that the section “merely makes the Court mandatorily give a charge to the jury . . . unless the defendant makes a motion to the Court asking the Court not to make such a charge to the jury in which case, if such motion is made, it is mandatory upon the Court not to make that charge.” 20 S. Proc., Pt. 5, 1977 Sess., p. 2068, remarks of Senator Salvatore C. DePiano.

       Additionally, our Supreme Court has noted the “[t]he general rule is that relevant and material admissions of fact by an attorney are admissible against the client, if made incidental to the attorney’s general authority to represent the client in connection with and for the puipose of controlling the matter committed to the attorney.” (Internal quotation marks omitted.) State v. Simms, 211 Conn. 1, 5 n.1, 557 A.2d 914, cert. denied, 493 U.S. 843, 110 S. Ct. 133, 107 L. Ed. 2d 93 (1989).

       “Waiver is the ‘intentional relinquishment or abandonment of a known right or privilege.’ Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); Advest, Inc. v. Wachtel, 235 Conn. 559, 569, 668 A.2d 367 (1995). ‘In general, federal and state constitutional and statutory rights can be waived.’ ” New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, 237 Conn. 378, 385, 677 A.2d 1350 (1996). Waiver can occur in different ways depending on the right or privilege being waived. See, e.g., State v. Patterson, 230 Conn. 385, 390, 645 A.2d 535 (1994) (holding that criminal defendant implicitly waived right to have trial judge present during voir dire by acquiescing when judge left courtroom and by asking judge to return only when judicial determinations needed), on appeal after remand, 236 Conn. 561, 674 A.2d 416 (1996); State v. Simino, 200 Conn. 113, 125-33, 509 A.2d 1039 (1986) (holding that criminal defendant waived right to be present in court during jury charge by voluntarily failing to attend trial); State v. Shockley, 188 Conn. 697, 707, 453 A.2d 441 (1982) (trial court, required to conduct inquiry of criminal defendant to ascertain whether waiver of right to jury trial knowingly, intelligently made); State v. Taylor, 63 Conn. App. 386, 402, 776 A.2d 1154 (discussing Practice Book § 44-3 and its requirements concerning court’s necessary inquiry as to whether criminal defendant has made knowing, voluntary, intelligent waiver of right to be represented by counsel), cert. denied, 257 Conn. 907, 777 A.2d 687 (2001); State v. Lugo, 61 Conn. App. 855, 861-62, 767 A.2d 1250 (discussing Practice Book § 39-19 requirements for acceptance of guilty plea and waiver of constitutional rights inherent in guilty plea), cert. denied, 255 Conn. 955, 772 A.2d 153 (2001); State v. Joyce, 45 Conn. App. 390, 407, 696 A.2d 993 (1997) (holding that where counsel for criminal defendant had consented to judge’s absence during voir dire, defendant waived right to judge’s presence), appeal dismissed, 248 Conn. 669, 728 A.2d 1096 (1999).

       Although a criminal defendant’s right to testify on his own behalf is constitutionally protected, our Supreme Court has held that a trial court is not under a duty to canvass a defendant concerning his waiver of that right. State v. Paradise, 213 Conn. 388, 405, 567 A.2d 1221 (1990). Certainly, we can discern no higher duty imposed on a court concerning a defendant’s waiver of a jury instruction concerning his or her decision not to testify.

       Rule 1.2 (a) of the Rules of Professional Conduct provides in relevant part: “A lawyer shall abide by a client’s decisions concerning the objectives of representation . . . and shall consult with the client as to the means by which they are to be pursued. ... In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testily.”


source: Caselaw Access Project

author: SCHALLER, J.

license: Public Domain

text:
    ROBERT F. LUDGIN v. COLLEEN A. MCGOWAN
    (AC 19744)
    Schaller, Flynn and O’Connell, Js.
    Argued March 30
    officially released July 17, 2001

      Kenneth J. Bartschi, with whom were Wesley W. Horton and, on the brief, Donald J. Cantor, for the appellant (plaintiff).

      Timothy Sheehan, with whom, on the brief, was Christopher D. Storm, for the appellee (defendant).
   Opinion

SCHALLER, J.

The plaintiff, Robert F. Ludgin, appeals from the judgment of the trial court dissolving his marriage to the defendant, Colleen A. McGowan. On appeal, the plaintiff claims that the court improperly (1) relied on the parties’ gross incomes rather than on their net incomes in fashioning the financial orders and (2) determined his child support payments by failing to comply with the child support guidelines and by failing to treat its parenting plan as a shared custody arrangement. We agree with the plaintiffs first claim and, accordingly, reverse the judgment in part without addressing the merits of his second claim.

The following facts and procedural history are necessary for a proper resolution of the plaintiffs appeal. The plaintiff, who is an attorney employed as a sole practitioner, and the defendant were married on November 13, 1988. During their marriage, the parties had one child born to them.

Claiming a breakdown in the marital relationship, the plaintiff brought this dissolution action by a complaint dated November 15, 1994. He sought joint custody of the parties’ minor child. The defendant, in response, filed a cross complaint in which she sought dissolution of the marriage, custody of the minor child, alimony, child support, an assignment of the marital home and equitable division of the marital assets.

At the hearing, the parties submitted evidence as to their incomes, both gross and net. The defendant’s income was easily discernable, as she was a salaried teacher employed by the Plymouth school district. The plaintiffs income, on the other hand, was more difficult to determine because he is a sole practitioner and had not yet filed his federal tax return at the time of the hearing. Consequently, the court heard a substantial amount of testimony with regard to his income.

On June 9,1999, the court rendered judgment dissolving the parties’ marriage, concluding that it had broken down irretrievably. The court, as part of the dissolution decree, ordered (1) the parties to share joint custody of their minor child, (2) the plaintiff to pay to the defendant $170 per week in child support and (3) the plaintiff to pay to the defendant $184 per week as periodic alimony for a term of four years. In its memorandum of decision, the court referred to the parties’ incomes, specifically, their gross incomes. This appeal followed.

The plaintiffs first claim is that the court improperly relied on the parties’ gross incomes rather than on their net incomes in fashioning the financial orders. We agree.

Before discussing the merits of the plaintiffs claim, we note our well settled standard of review applicable to a court’s decision regarding financial orders. “We review financial awards in dissolution actions under an abuse of discretion standard. ... In order to conclude that the trial court abused its discretion, we must find that the court either incorrectly applied the law or could not reasonably conclude as it did.” (Internal quotation marks omitted.) Lowe v. Lowe, 58 Conn. App. 805, 810, 755 A.2d 338 (2000). Mindful of those principles, we now turn to the issue of whether the court incorrectly applied the law by basing its financial orders solely on the parties’ gross incomes.

The defendant acknowledges, as she must, that the law governing this matter is clear. “[A] trial court must base periodic alimony and child support orders on the available net income of the parties. . . . Gross earnings is not a criterion for awards of alimony. It is the net income, which is available to the [plaintiff], which the court must consider.” (Citation omitted; internal quotation marks omitted.) Febbroriello v. Febbroriello, 21 Conn. App. 200, 202, 572 A.2d 1032 (1990); see also Collette v. Collette, 177 Conn. 465, 469, 418 A.2d 891 (1979).

Here, the court ignored this principle of law. In its memorandum of decision, the court repeatedly referred to and compared the parties’ gross incomes. It stated that “[t]he plaintiffs financial affidavit is not reflective of a regular weekly salary, but rather a computation of . . . gross income. The plaintiff testified that his . . . gross income for the year 1996 was $64,132 . . . for the year 1997 [it was] $65,455 . . . .” For the year 1998, the court computed that the plaintiffs gross income was $83,295, from which it determined that his gross weekly income for that year was $1600. The court then compared the difference between the plaintiffs and the defendant’s gross weekly incomes for 1998. It stated: “[T]he gross weekly income for the plaintiff is a little more than $200 more per week [than the defendant’s]

. . . .” Although the court had before it evidence of the parties’ net incomes, it appears that the court chose not to rely on such information. The court’s memorandum of decision is devoid of any mention of the parties’ net incomes. The court relied solely on the parties’ gross incomes in fashioning the financial orders. We conclude, therefore, that the court improperly designed its financial orders by relying on the parties’ gross incomes rather than on their net incomes.

In light of that conclusion, we need not address the plaintiff’s remaining claim regarding the child support payments. “The issues involving financial orders are entirely interwoven. The rendering of a judgment in a complicated dissolution case is a carefully crafted mosaic, each element of which may be dependent on the other.” (Internal quotation marks omitted.) Sunbury v. Sunbury, 210 Conn. 170, 175, 553 A.2d 612 (1989). Accordingly, we must reverse the judgment with respect to all financial orders.

The judgment is reversed as to the financial orders only and the case is remanded for a new hearing on all financial issues in accordance with law.

In this opinion the other judges concurred.

       The plaintiff also claims that the court; improperly designed the financial order by miscalculating his gross income for 1998. Because we agree with the plaintiffs other argument, we need not address that claim.

       Both parties submitted financial affidavits in which they stated their net income. The court failed to note such income and, instead, focused on the parties’ gross incomes.


author: FLYNN, J.

text:
    ELIZABETH MOJICA v. JOYCE BENJAMIN ET AL.
    (AC 20483)
    Lavery, C. J., and Flynn and O’Connell, Js.

      Argued April 24
    officially released July 17, 2001

      John T. Bochanis, for the appellant (plaintiff).

      Edward W. Mayer, Jr., with whom, on the brief, was Tracey M. Lane, for the appellees (named defendant et al.).

      Karen L. Karpie, for the appellee (defendant Carol Pulliam).
   Opinion

FLYNN, J.

The plaintiff, Elizabeth Mojica, appeals from the judgment of the trial court rendered after it denied her motion to set aside the jury’s verdict for the defendants, Carol Pulliam, Joyce Benjamin and Donald Benjamin. The plaintiff commenced this action against the defendants to recover damages for personal injuries she sustained in an automobile accident. On appeal, the plaintiff contends that (1) the verdict was against the weight of the evidence, (2) the court improperly admitted certain medical reports by an undisclosed expert witness and (3) the court improperly declined to charge the jury that the defendants had to take the plaintiff as they found her relative to a preexisting condition that resulted from a previous automobile accident. We disagree and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. The plaintiff was a passenger in Pulliam’s vehicle as Pulliam proceeded along Poplar Street in Bridgeport near its intersection with Maplewood Avenue. At about the same time, a vehicle that was being driven by Joyce Benjamin was exiting from a driveway along Poplar Street. Pulliam was traveling at approximately fifteen miles per hour when Joyce Benjamin’s vehicle, exiting from the driveway, struck Pulliam’s vehicle on the passenger side. Vehicles were parked on Poplar Street that impeded the view of drivers proceeding along the street and exiting driveways along the street. As a result of the collision, the plaintiff suffered injuries.

The plaintiff thereafter brought this action against the defendants on the theory of negligent operation of a motor vehicle. Each defendant denied the plaintiff’s allegations of negligence and that such negligence had caused her personal injuries. No special defenses were interposed against the plaintiff by any party, and no interrogatories were submitted to the jury. The juiy returned a general verdict in favor of all of the defendants.

Turning to the plaintiffs claims on appeal, we first note that we review the court’s denial of a motion to set aside the verdict under an abuse of discretion standard. The court is vested with wide discretion in such matters, and we will not disturb the court’s decision unless it has abused that discretion. Gosselin v. Perry, 166 Conn. 152, 168, 348 A.2d 623 (1974). Generally, the court should not set aside a verdict where the jury reasonably could have found as it did from the evidence before it. The court’s refusal to set aside a verdict is entitled to great weight, and every reasonable presumption should be indulged in favor of its correctness. Mather v. Griffin Hospital, 207 Conn. 125, 139, 540 A.2d 666 (1988). On appeal, the evidence in the record is to be considered in a light most favorable to the parties who prevailed at trial. Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 277, 698 A.2d 838 (1997).

I

The plaintiff first claims that the verdict in favor of the defendants was against the weight of the evidence. We disagree.

On the basis of our review of the record, we conclude that a reasonable jury could have found that Pulliam did not act negligently in the operation of her vehicle. Pulliam was operating her vehicle at fifteen miles per hour, a speed that the jury reasonably could have found not unreasonably fast. The evidence further showed that Joyce Benjamin’s vehicle struck Pulham’s vehicle as Joyce Benjamin was entering the street from a driveway. From such evidence, the jury reasonably could have concluded that Pulliam kept her vehicle under control. The jury also could have found that Pulliam kept a proper lookout because there was evidence that parked vehicles were obstructing the view of drivers proceeding along Poplar Street. From that evidence, the jury reasonably could have inferred that the view of even the most vigilant driver would have been obscured to the extent that a vehicle entering the street from a driveway could not be seen. Similarly, the jury could have found that Pulliam was not negligent in failing to apply her brakes or to turn out. The jury was entitled to believe Pulliam’s testimony that she never saw Joyce Benjamin’s vehicle, which was obscured by parked vehicles, until after it struck her vehicle and, thus, had no opportunity to brake or turn away in avoidance of the collision. See Opotzner v. Bass, 63 Conn. App. 555, 570, 777 A.2d 718 (“[w]here an issue is disputed, it is the jury’s job to weigh the evidence and to determine the credibility of conflicting testimony”), cert. denied, 257 Conn. 910, 782 A.2d 134 (2001). We conclude, therefore, that there was sufficient evidence for the jury to have found in Pulliam’s favor.

Our review of the record also leads us to conclude that a reasonable jury could have found that Joyce Benjamin was not negligent in the operation of her vehicle. The evidence before the jury, viewed in a light most favorable to sustaining the verdict, reveals that Joyce Benjamin inched her vehicle out of the driveway onto Poplar Street and that her view was partially blocked by parked vehicles. The jury reasonably could have found that such a slow speed was reasonably adapted to the circumstances, the manner of operation was in the exercise of reasonable control and consistent with a proper lookout, and because, under those circumstances, Joyce Benjamin did not see Pulliam’s vehicle, she should not reasonably have braked or turned away to avoid the collision.

The fact that a collision occurred did not require the jury to find that one or both drivers were negligent. The court, which had heard all of the testimonial evidence at trial, found in its memorandum of decision on the plaintiffs motion to set aside the verdict that the jury, under the circumstances, was neither “compelled” nor “required” to find against Joyce Benjamin or Pulliam. We agree. The plaintiff had the burden of proving such negligence, and the jury reasonably could have found, on the basis of the evidence presented, that she did not satisfy that burden. We conclude, therefore, that the court properly determined that the evidence was sufficient for the jury to decide as it did in rendering its verdict in favor of the defendants.

II

The plaintiff next claims that the court improperly admitted into evidence several medical reports by Donald S. Dworken, an orthopedic surgeon, who previously had treated the plaintiff. The plaintiff had sustained personal injuries in an accident in 1990 for which she brought an action after consulting Dworken. In that action, she claimed injuries to her neck and back, for which Dworken assigned a 7 to 8 percent permanent partial disability of the cervical spine, 7 percent permanent partial disability of the right shoulder and a 4 to 5 percent permanent partial disability of the lower back. The plaintiff contends that the medical reports were improperly admitted into evidence because the defendants had failed to disclose Dworken as an expert witness pursuant to Practice Book § 13-4 (4). The plaintiff further contends that she was prejudiced by the defendants’ late disclosure of the medical records on the eve of trial. We are not persuaded.

“Our standard of review for evidentiary matters allows the trial court great leeway in deciding the admissibility of evidence. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done.” (Internal quotation marks omitted.) Gilliard v. Van-Court Property Management Services, Ltd., 63 Conn. App. 637, 641, 777 A.2d 745 (2001).

Prior to trial, the defendants submitted standard discovery requests to the plaintiff that included, inter alia, a request for any medical reports by any health care providers who may have treated the plaintiff in the ten years preceding the alleged accident for any conditions that were in any way similar or related to the complained of injuries in the present action. The defendants’ request for production also requested written authorization from the plaintiff to copy, photograph or otherwise reproduce her medical records that were related to her claimed injuries and any injuries similar to those claimed in the action.

In a supplemental response to the defendants’ request, the plaintiff responded, in part, that Dworken had treated her for injuries suffered in an automobile accident in 1990. The plaintiff also provided Dworken’s treatment “notes,” but not any “reports.” The defendants thereafter subpoenaed Dworken’s treatment file of the plaintiff and, just days before trial, discovered the medical reports at issue in this appeal. Anticipating that the defendants would attempt to admit those reports, the plaintiff filed a motion in limine to preclude the defendants from introducing any of Dworken’s treatment notes or medical reports. The court conducted a thorough hearing on the plaintiffs motion at the conclusion of which the court denied the motion.

In its memorandum of decision denying the plaintiffs motion to set aside the verdict, the court found that “[c]ounsel for the plaintiff was unaware of those reports, as were the defendants, until the trial was in progress. Under such circumstances, the defendants cannot be faulted for failing to advise the plaintiff that they intended to utilize those medical reports when it was the plaintiffs obligation to provide those medical reports in the first instance and which was not done.” The court thereafter denied the plaintiffs motion.

At trial, the plaintiff renewed her objection to the admissibility of the medical reports and treatment notes. The court sustained the objection as to the notes, but overruled her objection as to the reports. The court reasoned that had the plaintiff complied with the defendants’ request for production asking for all medical reports, the defendants would have been in a position to disclose such information. As matters stood, however, because of the plaintiffs failure to comply fully with the defendants’ request, the defendants learned of Dworken’s medical reports only days before trial and only after the defendants had subpoenaed Dworken’s complete treatment file of the plaintiff.

We cannot say that under the circumstances, the court abused its discretion in admitting the medical records into evidence. See Ormsby v. Frankel, 255 Conn. 670, 675, 768 A.2d 441 (2001) (ruling on evidentiary matters will be overturned on appeal only where there is evidence of clear abuse of discretion). It was the plaintiffs failure to deliver to the defendants an authorization to release medical records in Dworken’s possession, including the medical reports at issue, coupled with the plaintiffs representation to the defendants that she was providing all of the records, which consisted only of “notes,” that deprived the defendants of any knowledge of the reports until they subpoenaed Dworken’s treatment file and learned of them shortly before trial.

The plaintiff cannot reasonably claim on appeal that the defendants’ untimely disclosure caused her to suffer prejudice when she substantially contributed to the complained of delay. Our conclusion is further buttressed by the admission of the plaintiffs counsel that the plaintiff was required to disclose Dworken’s medical reports pursuant to the defendants’ standard production request and, yet, did not do so because counsel’s letter to Dworken merely requested his “treatment notes.” See Collens v.New Canaan Water Co., 155 Conn. 477, 496, 234 A.2d 825 (1967) (relevant, material admissions by counsel admissible against client). Discovery is an equitable procedure rather than a common-law procedure; Lieberman v. Reliable Refuse Co., 212 Conn. 661, 672, 563 A.2d 1013 (1989); and should be guided by the old equitable maxim that a loss ought to fall on the person who caused it. Home Ins. Co. v. Aetna Life & Casualty Co., 35 Conn. App. 94, 104, 644 A.2d 933 (1994). We therefore conclude that under the circumstances of this case, the court properly allowed the defendants to submit Dworken’s medical reports into evidence.

Ill

Finally, we address the plaintiffs claim that the court should have given the jury her requested instruction that the defendants had to take the plaintiff as they found her, an instruction commonly referred to as “the eggshell plaintiff’ charge. We do not agree.

“Our standard of review concerning claims of instructional error is well settled. [J]ury instructions must be read as a whole and . . . are not to be judged in artificial isolation from the overall charge. . . . The whole charge must be considered from the standpoint of its effect on the jurors in guiding them to a proper verdict .... The trial court must adapt its instructions to the issues raised in order to give the jury reasonable guidance in reaching a verdict and not mislead them.” (Citations omitted; internal quotation marks omitted.) Mauro v. Yale-New Haven Hospital, 31 Conn. App. 584, 592-93, 627 A.2d 443 (1993).

The court did not charge the jury as requested, but rather provided the following relevant instruction: “[There has] also been evidence with respect to some [spinal] stenosis and opinions expressed to that with respect to the doctor as to where it came from. The plaintiff is entitled to reasonable — fair, just and reasonable compensation for any injuries if they were caused by the negligence of the defendants, even though the injury, or the effects thereof, might be more serious because of the plaintiffs background; thus, if you find any negligence on the part of any defendant is a substantial factor in producing the injuries to the plaintiff, the plaintiff would be entitled to compensation for those injuries. If you find that any negligence on the part of the defendants was not a substantial factor in producing any such injuries, the plaintiff would not be entitled to compensation for any such injuries.”

We must emphasize that there is a distinction between, on the one hand, cases in which a plaintiff claims that an allegedly negligent defendant has aggravated an injury or lighted up previous but dormant injuries and, on the other hand, those cases in which a plaintiff alleges that the defendant has actually caused all of the complained of injuries. In her complaint, the plaintiff asserted that “[a]s a direct result” of the defendants’ negligence, she sustained injuries to her back and neck. She did not plead that the defendants’ alleged negligence aggravated or lighted up any prior injuries. In fact, the plaintiff testified that although she was injured in an automobile accident in 1990, she had recovered from those injuries. When asked by defense counsel whether she was claiming the same injuries as she had in the action related to the 1990 accident, the plaintiff replied, “[n]o, but this one here is worse.”

As with the evidence in the record, the closing argument of the plaintiffs counsel was consistent with the theory that the plaintiffs injuries were caused by the May, 1993 accident. Counsel argued to the jury, in relevant part, that “the defendants would like to have you believe that the injuries she suffered from this May 22, 1993 incident are related somehow to the 1990 incident .... Dr. [Paul] Carpenter, on the other hand, indicates that the injuries to her body, to the low back and to the neck, are directly related to this incident, directly related to the May 22, 1993 incident. I think, after listening to the evidence, you could reasonably conclude that the injuries were related to this May 22, 1993 incident.”

Our law regarding the giving of an eggshell instruction was epigrammatically summed up in Olkowski v. Dew, 48 Conn. App. 864, 868, 713 A.2d 264, cert. denied, 246 Conn. 901, 717 A.2d 239 (1998), wherein Judge Dupont, writing for the court, stated: “In this case, the plaintiffs concede that the aggravation of a preexisting injury was not a theory of the amended complaint, but rely on the case of Bruneau v. Quick, 187 Conn. 617, 633, 447 A.2d 742 (1982), in support of the position that they were entitled to the preexisting injury charge despite the fact that the aggravation of a preexisting injury was not a theory of the case. In Bruneau, the defendant claimed that the trial court improperly provided the jury with a preexisting injury or ‘take the plaintiff as you find him’ charge because the aggravation of a preexisting injury was not a theory of the plaintiffs case and there had been ‘ “absolutely no testimony which suggested that this condition . . . had been aggravated.” . . .’ Id. In Bruneau, the trial court determined and our Supreme Court affirmed that there was, in fact, evidence from which the jury reasonably ‘ “could find or infer that the effect on this particular [p]laintiff of some of the claimed injuries may be different in degree because she had a [preexisting] condition than if she didn’t.” ’ Id., 634.” Olkowski v. Dew, supra, 868-69.

In the present case, the plaintiff did not plead that the defendants’ alleged negligence aggravated any preexisting injuries. She testified that she had recovered from the injuries sustained in the 1990 accident prior to being injured in the 1993 accident between Pulliam and Joyce Benjamin. Additionally, the evidence presented at trial indicated that the “vast majority” of the plaintiffs spinal stenosis was the direct result of the 1993 accident. The record does not disclose whether the plaintiff had the condition prior to the 1993 accident. The court, therefore, was not required to charge in exactly the way the plaintiff requested. The charge, as given, adequately permitted the jury to consider whether the injuries caused by the defendants’ alleged negligence were made more severe by virtue of the plaintiffs earlier injuries and that the defendants would still be hable for them. We therefore reject the plaintiffs claim. The court acted well within its discretion when it refused to set aside the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       We note that the plaintiff brought this action against Donald Beryamin as the owner of the vehicle that was driven by Joyce Benjamin.

       In light of our conclusion that there was sufficient evidence for the jury to decide, as it did, that Joyce Beiyamin was not negligent in the operation of her vehicle, we further conclude that the jury properly determined that Donald Benjamin, as the owner of Joyce Benjamin’s vehicle, was not liable for the plaintiffs injuries.

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

       The plaintiff requested the following' charge: “The plaintiff is entitled to recover full and complete compensation for all her injuries and damage, and the effects caused by or proximately resulting from the Defendants’ neglect. This is so even though her injuries and effects thereof were more severe and serious and were prolonged permanently or longer than would otherwise have been because of her pre-existing condition of health at the time of the accident. There has been testimony in this case to the effect that the Plaintiff has a prior iryury to her neck and back which may have been aggravated or lighted up by this incident and which caused her damages.
      “In other words, the Defendants take the Plaintiff as they find her. The Defendants are chargeable with all the results of the injuries proximately caused by their neglect or flowing from their negligence and the Defendants cannot now excuse these results by saying that the Plaintiff had a preexisting condition which would make her suffer more and longer or cause her to be more severely injured.” (Citations omitted.)

       On direct, examination by her attorney, the plaintiff testified in relevant part:
      “Q. Ms. Mojica, prior to this accident, did you ever injure your neck or back, prior to May 22, 1993?
      “A. Yes.
      “Q. All right. When was that?
      •‘A. In 1990.
      “Q. And what caused the injury to your neck and back?
      “A. An accident.
      “Q. What type of accident?
      “A. A car accident.
      * ** *
      “Q. You obviously have experienced the injury from the 1990 incident and 1993; are they different?
      “A. Yes, they are.
      “Q. And how are they different, Ms. Mojica?
      “A. Dr. Dworken was treating me for my shoulders and once in awhile when I had a headache.
      “Q. All right. Did he also treat you for your back and neck, though?
      “A. A little bit; and I believe the top part of my back.
      “Q. All right.”
      The plaintiff then explained how her injuries sustained in the May 22, 1993 accident, the subject of the present action, differed from those sustained in the 1990 accident:
      “A. I have more — I have damage to my lower back, all right? And with the headaches, that’s injuries to my neck, which is worse than what I had with Dworken. Dworken was just my shoulder; he treated my shoulders mostly. And I had a cortisone shot in my right shoulder.
      “Q. All right. Okay, so he treated mostly your shoulder, you indicate, right?

        “A. Right.
      “Q. But he did treat your neck and back some also, Dr. Dworken?
      “A. Right, yes; mm-hmm.
      “Q. All right. On the date that you were involved in the injury on May 22, 1993, did you have any type of pain or did you feel any type of symptoms from your injury of 1990?
      “A. I had lots of pain and my body was different.
      * ** *
      “Q. Okay. But, no; I guess what I’m asking is, on the date of this — in May of 1993, okay, did you have any pain from your old injury of 1990?
      “A. No.
      “Q. Okay. Had you recovered from that?
      “A. Yes. Yes.”
      On cross-examination by the defendants’ attorney, the plaintiff further testified in relevant part:
      “Q. Ms. Mojica, you testified earlier that you have no problems with your neck and back before this accident in 1993; is that right?
      “A. Right.
      “Q. But you did have a prior motor vehicle accident in 1990?
      “A. Yes, I did. . . .
      “Q. Okay. And Dr. Dworken’s reports . . . [indicate] that he treated you for your neck, back and shoulders.
      “A. Right.
      “Q. Okay. And isn’t it true at that time you already have problems with sitting, squatting and bending, kneeling?
      “A. Not that much.
      “Q. Okay. Well did you have a permanent injury from the 1990 accident?
      “A. Not that I know of, no.
      * * *
      “Q. Did you ever tell Dr. [Paul] Carpenter about the prior accident that you were involved in?
      “A. No, I didn’t at the time, no.
      “Q. Well, did you ever tell him?
      “A. I think probably later I told him, but I was so sick when I went to see him, I didn’t even think about my other one.
      * * *
      “Q. You didn’t think you had any permanent injury in the 1990 accident?
      “A. No.”


text:
    YAROSLAVA RANGEL ET AL. v. DOUGLAS PARKHURST ET AL.
    (AC 20426)
    Schaller, Flynn and O’Connell, Js.

      Argued February 23
    officially released July 24, 2001

      Gerald M. Beaudoin, for the appellant (named plaintiff).

      Andrew J. O’Keefe, with whom was Joseph M. Busher, Jr., for the appellees (named defendant et al.).
   Opinion

FLYNN, J.

The plaintiff Yaroslava Rangel appeals from the summary judgment rendered in favor of the defendants, Douglas Parkhurst and Judy Parkhurst. On appeal, the plaintiff argues that the trial court improperly (1) granted the defendants’ motion for summary judgment on the basis of its finding that the defendants were neither purveyors nor servers of alcohol to a minor and (2) determined that, as a matter of law, parents who know of and acquiesce in their minor child’s storage of alcoholic beverages in their home are not liable for damages subsequently caused by the intoxicated minor. We affirm the judgment of the trial court.

The following facts are relevant to our resolution of the plaintiffs appeal. The plaintiff brought this action seeking damages for injuries that she and her son, Emmanuel Rangel, sustained in a two car accident involving the defendants’ son, Michael Parkhurst (Michael). Michael was twenty years old at the time of the accident and, therefore, was not of legal drinking age. He had purchased beer from a package store two weeks prior to the accident. The defendants’ home has two refrigerators. One is in the kitchen, and one is in the basement. Michael stored the beer in the basement refrigerator until the morning of the accident, when he removed it from his parents’ home and engaged in a course of drinking and driving that culminated in the collision involving the plaintiffs automobile.

The plaintiff, in her revised complaint, alleged that Michael was a minor, age twenty, residing with his parents, the defendants. The plaintiff further alleged that (1) the defendants stored and made alcoholic beverages available to Michael, (2) the defendants knew or had reason to know that Michael’s consumption of alcohol outside the home involved the use and operation of an automobile they had “assisted” in making available to him, and (3) on May 16, 1995, Michael removed substantially all of the alcoholic beverages from the defendants’ basement refrigerator, and then, after drinking throughout the day and evening, operated his automobile. The plaintiff alleged that because Michael became impaired or intoxicated, his car collided with the plaintiffs car, causing the plaintiff personal injuries.

The plaintiffs complaint further alleges that the defendants were negligent in one or more of the following ways: “A. They stored and made available alcoholic beverages to their minor son; B. They assisted their minor son in obtaining and maintaining operation of an automobile when they knew or had reason to know he was operating same while impaired or intoxicated; C. They failed to instruct their minor son on the dangers of operating an automobile while impaired although they had ample opportunity to do so and had a special relationship enabling them to do so; D. They stored and made available alcoholic beverage to their minor son knowing or having reason to know he would be consuming same in public places; [and] E. The defendants delivered and gave alcohol to a minor for consumption at a time and place when said minor would not be accompanied by a parent or guardian, in violation of [General Statutes] § 30-86.”

On October 27, 1997, the defendants filed a motion for summary judgment, contending that (1) they did not owe a duty to the plaintiff and (2) there was no basis on which to proceed against them on theories of negligent service of alcohol to a minor, and negligent entrustment of a motor vehicle or vicarious liability. On April 7, 1998, the court, Martin, J., denied the motion, finding that “[a]n issue of material fact exists as to whether the defendants provided or made alcohol available to their minor child.”

The defendants filed a renewed motion for summary judgment, dated March 15, 1999, which the court, Parker, J., granted on December 7, 1999. In its memorandum of decision, the court found that “the [defendants’] knowledge of and/or acquiescence in Michael’s storage of the beer in their home may be a fact issue which is genuinely in dispute. That fact is not a material fact.” The court concluded that “the law is not as [the plaintiff] would have it; parents are not liable to third persons even though they knew of and acquiesced in the minor child’s keeping alcoholic beverages in their home.” The court further concluded that “[i]n no sense can the [defendants] be considered to have supplied or purveyed the offending beer to Michael.” The plaintiff thereafter appealed from the judgment of the court.

I

The plaintiff first claims that the court improperly granted the defendants’ motion for summary judgment on the basis of its findings that the defendants were not purveyors of alcohol nor had they served alcohol to a minor. The plaintiff argues that the defendants’ conduct falls within the broad interpretation of purveyor as discussed by our Supreme Court in Ely v. Murphy, 207 Conn. 88, 540 A.2d 54 (1988), and Bohan v. Last, 236 Conn. 670, 674 A.2d 839 (1996), because the defendants “affirmatively acted” when they made alcohol available to Michael by allowing him to store beer in their basement refrigerator. We disagree.

“Our standard of review of a court’s decision to grant a motion for summary judgment is well established. Practice Book § 384 [now § 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Tarzia v. Great Atlantic & Pacific Tea Co., 52 Conn. App. 136, 145, 727 A.2d 219 (1999), appeal dismissed, 254 Conn. 786, 759 A.2d 502 (2000).

“On appeal, [w]e must decide whether the trial court erred in determining that there was no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Avon Meadow Condominium Assn., Inc. v. Bank of Boston Connecticut, 50 Conn. App. 688, 693, 719 A.2d 66, cert. denied, 247 Conn. 946, 723 A.2d 320 (1998). . . . [0]ur review is plenary and we must decide whether [the trial court’s] conclusions are legally and logically correct and find support in the facts that appear in the record. . . . Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342 (1995). On appeal, however, the burden is on the opposing party to demonstrate that the trial court’s decision to grant the movant’s summary judgment motion was clearly erroneous. 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 567, 636 A.2d 1377 (1994).” (Internal quotation marks omitted.) Saunders v. Stigers, 62 Conn. App. 138, 145-46, 773 A.2d 971 (2001).

To recover on a theory of negligence, the plaintiff must establish that the defendants owed a duty to her and breached that duty. See Leavenworth v. Mathes, 38 Conn. App. 476, 479, 661 A.2d 632 (1995). “The existence of a duty is a question of law. . . . Only if such a duty is found to exist does the trier of fact then determine whether the defendants] violated that duty in the particular situation at hand.” (Citation omitted.) Shore v. Stonington, 187 Conn. 147, 151-52, 444 A.2d 1379 (1982).

Our Supreme Court in Ely v. Murphy, supra, 207 Conn. 89-90, addressed a situation in which parental social hosts actually provided alcohol to minors at a graduation “keg” party for a fee of $3. As a result, one of the minor guests, who was intoxicated, struck and killed another guest while driving his vehicle after leaving the party. Id., 90. The court concluded that “a social host or other purveyor of alcohol will be liable, to the minor served or to innocent third parties thereafter injured, if a court or a jury finds, as a matter of fact, a proximate cause relationship between the service of alcohol and the damages ensuing from the minor’s consumption of the alcohol.” Bohan v. Last, supra, 236 Conn. 677, citing Ely v. Murphy, supra, 97.

“At common law it was the general rule that no tort cause of action lay against one who furnished, whether by sale or gift, intoxicating liquor to a person who thereby voluntarily became intoxicated and in consequence of his intoxication injured the person or property either of himself or of another. The reason generally given for the rule was that the proximate cause of the intoxication was not the furnishing of the liquor, but the consumption of it by the purchaser or donee. The rule was based on the obvious fact that one could not become intoxicated by reason of liquor furnished him if he did not drink it. . . . [See] 45 Am. Jur. 2d, Intoxicating Liquors §§ 553-55; 48 C.J.S., Intoxicating Liquors § 430; 75 A.L.R.2d 833. . . .

“The proposition that intoxication results from the voluntary conduct of the person who consumes intoxicating liquor assumes a knowing and intelligent exercise of choice, and for that reason is more applicable to adults than to minors.” (Citation omitted.) Ely v. Murphy, supra, 207 Conn. 93.

The Ely court created a limited exception to the common-law rule that no cause of action in negligence arises from the furnishing of alcohol to intoxicated adults by holding that the consumption of alcohol by a minor does not “constitute the intervening act necessary to break the chain of proximate causation and does not, as a matter of law, insulate one who provides alcohol to minors from liability for ensuing injury.” Id., 95. In breaking with the common-law rule, the exception created by the Ely court left in place the requirement that the host actually purvey or supply the alcohol consumed. It did not, however, carve out an exception for adults who were not social hosts and who did not purvey the alcohol.

In Bohan, the patrons of a bar bought alcohol for a minor who was present at the bar. The alcohol purveyed by the patrons caused the minor to become intoxicated. Bohan v. Last, supra, 236 Conn. 675. The minor subsequently drove a car, while still intoxicated, resulting in a collision and the death of his passenger. Id. Our Supreme Court reaffirmed the principle of Ely by stating that “[i]n appropriate circumstances, a purveyor of alcohol to a minor is liable not because he has custodial control over, or a special relationship with, the minor, but because he has negligently [supplied] the minor with alcohol(Emphasis added.) Id., 679. The court held that “it is appropriate to limit the common law liability of purveyors of alcohol to those who knew or had reason to know that they were making alcohol available to a minor.” Id., 680. It further concluded that “[i]n appropriate circumstances, adults have a duty to refrain from negligently or intentionally supplying alcohol to minors, whether such adults act as social hosts in their homes or as purveyors in a bar, because minors are presumed not to have the capacity to understand fully the risks associated with intoxication.” Id., 681.

In the present case, it is undisputed that Michael purchased the beer that he consumed on the date of the accident. Moreover, as the court determined in its memorandum of decision, there was uncontroverted evidence that the defendants “had neither stored and made available alcoholic beverages to their minor son nor delivered and gave alcohol to” him. (Internal quotation marks omitted.) Even if we assume arguendo that the defendants knew that their son was storing beer in the family refrigerator, that fact is of no consequence because our case law does not impose liability on parents who know of and acquiesce in their minor child’s storage of alcoholic beverages in their home. There is no evidence that the defendants supplied or purveyed beer to Michael. Unlike the defendants in Ely and Bohan, the defendants in this case were neither purveyors of alcohol nor social hosts. They owed no legal duty to the plaintiff. The plaintiffs claim is unenforceable as a matter of law. The court, therefore, properly rendered summary judgment in favor of the defendants on those facts.

II

Citing Cowart v. Grimaldi, 46 Conn. Sup. 248, 746 A.2d 833 (1997), which relies on the substantial assistance doctrine in 4 Restatement (Second), Torts § 876 (1979), the plaintiff next claims that the court improperly determined that, as a matter of law, parents who know of and acquiesce in their minor child’s storage of alcoholic beverages in their home are not liable for damages caused by the intoxicated minor. We disagree.

Specifically, the plaintiff contends that social host liability extends to those who provide substantial assistance to a minor in the procurement of alcohol. Relying primarily on Cowart, the plaintiff argues that she has alleged affirmative acts by the defendants and that by those acts the defendants substantially assisted Michael in his negligent conduct. The plaintiff claims that the following are affirmative acts by the defendants: (1) their knowledge that their minor son stored beer in the refrigerator, (2) their failure to restrict his access to alcohol and (3) their warning against drinking in their house.

We first note that Cowart is not binding on this court. See Peabody N.E., Inc. v. Dept. of Transportation, 250 Conn. 105, 125, 735 A.2d 782 (1999). Furthermore, contrary to the plaintiffs contentions, Cowart is not analogous to the present case. In Cowart, the plaintiff alleged that one of the defendants had assisted the defendant driver, who was a minor, “by taking charge of him after he had become intoxicated at his place of employment. . . .” Cowart v. Grimaldi, supra, 46 Conn. Sup. 249. The plaintiff alleged that the defendant who took charge of the minor had driven him to the home of another defendant “to enable and assist [the minor defendant] to consume additional intoxicating liquor” and subsequently drove him to his car, knowing that he was intoxicated, “thereby substantially assisting and encouraging him to operate his” car while intoxicated. Id. Citing § 876 of the Restatement, the court stated that “a person may be liable to a third person for the tortious conduct of another if he knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so conduct himself.” (Internal quotation marks omitted.) Id., 251. Pursuant to the Restatement, liability may be imposed on a person who substantially enables an intoxicated person to become drunk and operate an automobile in that state. Consequently, the court held that the defendant who had taken charge of the minor defendant owed a legal duty to the plaintiffs decedent. Id., 252.

In contrast to Cowart, the affidavits in the present case do not show that the defendants substantially assisted or encouraged Michael in his negligent conduct by buying, providing or serving intoxicants to him, by enabling him to obtain more intoxicating liquor when they knew that he was drunk or by allowing him to enter an automobile to drive when they knew or should have known that he was intoxicated. The defendants did not substantially assist or encourage Michael in his negligent conduct. Even if the defendants knew of Michael’s storage of alcohol in their house, our case law does not impose liability for such knowledge. Only when a person is a social host or other purveyor of alcohol to a minor can such a person be held liable and, then, only if there is a causal connection between that service and the damages resulting from the minor’s consumption. Bohan v. Last, supra, 236 Conn. 681. Therefore, the court properly determined that parents are not liable to third persons even though they know of and acquiesce in their minor child’s storage of alcoholic beverages in their home. The plaintiff has not sustained her burden of showing that the court’s decision to grant the defendants’ motion for summary judgment was clearly erroneous.

The judgment is affirmed.

In this opinion the other judges concurred.

       The other plaintiff in this action is Emmanuel Rangel, the son of Yaroslava Rangel. Only Yaroslava Rangel has appealed from the judgment of the trial court. We therefore refer in this opinion to Yaroslava Rangel as the plaintiff.

       In this opinion, we refer to Douglas Parkhurst and Judy Parkhurst, the only original defendants who are parties to this appeal, as the defendants.

       Because the issues on appeal arise from the court’s granting of the defendants’ motion for summary judgment, we discuss, in light of paragraphs A through E of the plaintiffs complaint, those specifications of negligence, and the content of the affidavits, counteraffidavits and other documentation filed in support, of and in opposition to the motion for summary judgment.
      First, despite the allegations of paragraphs A and D of the complaint, the uncontradicted portions of the affidavits filed by the defendants indicate that they did not purchase the beer about which the plaintiff complains, nor did they store it as the plaintiff alleges.
      Second, it was not disputed before the court that Michael owned the automobile he was operating at the time of the collision with the plaintiffs automobile. Moreover, the plaintiff offered no evidence to establish that, allegation, found in paragraph B of the complaint, that the defendants assisted Michael in obtaining and maintaining the operation of an automobile when they knew or had reason to know that he either was impaired or intoxicated at the time of the collision.

        Third, despite the allegations of paragraph C of the complaint, our law does not recognize a duty in connection with assisting others in initially purchasing or maintaining an automobile. The plaintiffs complaint does not allege that the defendants either owned or maintained the automobile as a family car under the family car doctrine. See General Statutes § 52-182. The defendants, therefore, could have no liability under that theory.
      Fourth, despite the plaintiffs factual allegations in paragraph C of the complaint, there is no legal duty on the part of parents to third parties for failure to instruct a minor child about the dangers of motor vehicle operation while impaired. The duty, if any, that a parent or social host has arises not out of custodial control or the special relationship between parent and child, but from the negligent supplying of a substance to a class of persons who “are simply incompetent by reason of their youth and inexperience to deal responsibly with the effects of alcohol.” Ely v. Murphy, 207 Conn. 88, 94, 540 A.2d 54 (1988).
      Last, it was not disputed that the defendants neither gave nor delivered alcohol to Michael, despite the plaintiffs contrary allegation in paragraph E of the complaint.
      Consequently, the court was left with disputed evidence concerning the defendants’ knowledge of or acquiescence in Michael’s purchase of and subsequent storage of beer in their home.

       We note that the Webster Collegiate Dictionary (1999) defines “purvey” as “to supply usually as amatter of business.” Black’s Law Dictionary defines “supply” as “[t]o furnish with what is wanted . . . .” Black’s Law Dictionary (6th Ed. 1990).

       The affidavits of both defendants state in relevant part:
      “6. I did not make available any alcoholic liquor in a family refrigerator for my son Michael. . . .
      “9. At no time did I store a case of alcoholic beverage for my son Michael in the family refrigerator. . . .
      “12.1 did not deliver, give or purvey any alcohol to my minor son on the date of the subject accident.”
      In a March 4,1999 deposition, Michael testified in relevant part as follows:
      “Q. Did your parents ever purchase any alcohol for you to consume? Did they purchase any beer for you that you consumed on the day of your accident?
      “A. No.
      “Q. The alcohol that you drank on the day of your accident, was that alcohol that you had purchased for yourself at the Wells Fargo package store?
      “A. Yes. . . .
      “Q. Did [your parents] provide you or serve you or give to you any of the alcohol that you drank on the day of this accident?
      “A. No.”

       As to the issue of whether the defendants knew that Michael stored beer in the family refrigerator, the court discussed in its memorandum of decision Michael’s testimony in a 1996 deposition in another action that the plaintiff brought against him. The court stated: “Michael’s testimony in the 1996 deposition at least indicates his parents must have known he was keeping beer in the downstairs refrigerator. Whether his statements made in the 1996 deposition are sufficient to create a genuine issue of fact is problematic. Michael is not a party in this action. How, or whether, what he said in 1996 can be used substantively is a problem. However, for the purposes of this motion the court will assume that it is sufficient to create a genuine issue of fact.”

       Section 876 of 4 Restatement (Second), Torts (1979), provides: “Persons Acting in Concert. For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.”