text:
    Roy D. Young, Executor (Estate of Samuel Young), et al. v. Christopher Marx et al.
    (8905)
    (9090)
    Daly, J., Norcott and Cretella, Js.
    Argued December 10, 1990
    decision released February 12, 1991

      Sanford Dean Kaufman, with whom were Eric N. Wellman and, on the brief, Peter S. Vannucci, for the appellants (plaintiffs).

      Thomas J. Shortell, with whom, on the brief, were Katherine C. Callahan and Laura B. Frankel, for the appellee (named defendant).

      Thomas P. Weldy, for the appellee (defendant Kapetan, Inc.).
   Daly, J.

The plaintiffs instituted an action for negligence against the defendants. From a summary judgment rendered in favor of the defendant Christopher Marx and from a summary judgment rendered in favor of the defendant Kapetan, Inc., the plaintiffs filed separate appeals.

The plaintiffs are the owners and the lessee of a warehouse located at 8 Rose Hill Avenue, Danbury, in which the second floor collapsed. The second floor was an addition constructed by Kapetan utilizing the designs of an architect, John Cruet, and the structural expertise of an engineer, Marx. Kapetan substantially completed the floor on July 31, 1979, and it collapsed in September, 1986. The plaintiffs commenced this action on July 22 and 23, 1987.

Cruet filed a motion for summary judgment based on the statute of limitations, which the trial court, Hickey, J., denied.

The defendants, Marx and Kapetan, subsequently filed motions for summary judgment based on the statute of limitations which were granted by the trial court, Moraghan, J. The plaintiffs appeal from the judgments granting the latter motions, and claim that the trial court improperly granted the motions for summary judgment because it failed to follow the law of the case and incorrectly construed the statute of limitations. We disagree.

A judge is not bound to follow the earlier decisions of another judge in the same proceedings. If the same point of law is raised again in the proceedings before another judge, the question may be reconsidered if the court believes it was incorrectly decided earlier. Thus, the law of the case principle is a flexible concept, adaptable to the exigencies of different cases. “The adoption of a different view of the law by a judge in acting upon a motion for summary judgment than that of his [or her] predecessor in considering such a motion or some other pretrial motion is a common illustration of this principle. . . . From the vantage point of an appellate court it would hardly be sensible to reverse a correct ruling by a second judge on the simplistic ground that it departed from the law of the case established by an earlier ruling.” (Citations omitted.) Breen v. Phelps, 186 Conn. 86, 100, 439 A.2d 1066 (1982).

Summary judgment shall be rendered if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the movant is entitled to the judgment as a matter of law. Practice Book § 384. Because the parties do not dispute the chronology of this case, the sole legal issue is whether the injury occurred more than seven years after substantial completion of the addition. General Statutes § 52-584a. In the first summary judgment involving Cruet, the trial court determined that the collapse had occurred during the seventh year, while the second trial court held that injury occurred more than seven years after substantial completion.

General Statutes § 52-584a provides in part that “No action . . . shall be brought . . . more than seven years after substantial completion .... (b) Notwithstanding [the above] . . . an injury to property . . . which . . . occurred during the seventh year after such substantial completion . . . may be brought within one year after the date on which such injury occurred . . . but in no event . . . more than eight years after substantial completion . . . .” We agree with the second trial court that the injury must occur within the seven years, but the action may be brought in the eighth if the injury occurs in the seventh year.

Where legislative intent is clear, and the language used is unambiguous, there is no room for statutory construction. B. Holden & J. Daly, Connecticut Evidence § 50. When a statute does not define a term, however, it is appropriate to consult the common understanding expressed in the law and in dictionaries. Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 49, 523 A.2d 477 (1987).

Ballentine’s Law Dictionary (3d Ed.) defines during as “[throughout a period of time” and “[a] point of time within a period.” Webster, Third New International Dictionary defines during as “[throughout the continuance or course of” and “at some point in the course of.” The American Heritage Dictionary (New College Ed.) states that during means “[throughout the course or duration of,” “[wjithin the time of” and “at some time in.” Applying these definitions, we interpret the statute as stating that the injury must occur within seven years after substantial completion. Because the plaintiffs’ injury here occurred more than seven years after substantial completion of the addition, and not during the seventh year, we find that their complaint cannot comply with the statute of limitations. Therefore, we agree with the second trial court that summary judgment lies for the defendants.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs Sanford Haufman and Stanley Klein are also coexecutors of the estate of the decedent, Samuel Young. The plaintiff Fairfield Processing Corporation is the lessee of certain property owned by the coexecutors.

       The other, unnamed defendants are Kapetan, Inc., a general contractor, and John Cruet, a licensed architect.

       The defendant John Cruet and the plaintiffs have agreed to be bound by this decision.

       General Statutes § 52-584a provides in pertinent part: “(a) No action . . . shall be brought against any architect or professional engineer performing or furnishing the design, planning, supervision or observation of construction or construction of such improvement more than seven years after substantial completion of such improvement.
      “(b) Notwithstanding the provisions of subsection (a) of this section, in the case of such an injury to property . . . which injury occurred during the seventh year after such substantial completion, an action in tort to recover damages for such an injury or wrongful death may be brought within one year after the date on which such injury occurred . . . but in no event may such an action be brought more than eight years after the substantial completion of construction of such an improvement.” (Emphasis added.)


source: Caselaw Access Project

author: Norcott, J.

license: Public Domain

text:
    Ronald E. Martin et al. v. John Samulis
    (8813)
    Norcott, Foti and Cretella, Js.

      Argued December 3, 1990
    decision released February 12, 1991

      Judith D. Meyer, with whom, on the brief, were Robert L. Hirtle, Jr., and Dean B. Kilbourne, for the appellant (defendant).

      Robert A. Ziegler, for the appellees (plaintiffs).
   Norcott, J.

The defendant appeals from the judgment rendered, after a jury trial, in favor of the plaintiffs in a case involving the construction of a home in Farmington. The plaintiffs filed an action against the defendant construction manager which proceeded to trial on three counts alleging violations of Connecticut’s Unfair Trade Practices Act (CUTPA), breach of contract and libel. The defendant filed a counterclaim seeking moneys allegedly owed under the terms of the contract as a result of lost profits.

On appeal, the defendant challenges the trial court’s failure (1) to set aside the verdicts on the grounds that they were excessive and contrary to the evidence, (2) to charge the jury, as requested, under Secondino, and (3) to charge the jury regarding fraud as requested by the defendant. The defendant also claims that the trial court improperly charged the jury that a letter written by the defendant was libel per se.

From the evidence produced by the parties at trial, the jury could have reasonably found the following facts. The plaintiffs, Ronald E. Martin and Remco Contracting, Inc., were engaged in the construction business and related industries. In December of 1987, the plaintiffs contracted with the defendant, John Samulis, also known as John Casimir Samulis, for the construction of a house at 23 Valley View Drive in Farming-ton. Under the terms of the agreement, the defendant was to receive a weekly draw of $1100 plus 50 percent of the net profit on the house. The budget for the construction of the house was agreed upon at $150,000 with an additional $62,465 for additional costs and upgrades.

In May of 1988, serious problems arose between the parties that resulted in the termination of the defendant’s services in the following month. The plaintiffs contended that the defendant (1) had vacated his role as supervisor of the construction of the house, (2) had breached a part of the agreement by failing to develop a home in a Bolton subdivision for which the Farming-ton house was to have been a model for showing, (3) had improperly taken portions of Remco’s files concerning the Bolton and Farmington projects, and (4) had overrun the cost of the Farmington house by $80,000 attributable to kickbacks paid by the subcontractors to the defendant.

After he was fired, the defendant sent Martin a letter dated June 27,1988. The defendant also sent copies of the letter to all of the project suppliers and subcontractors. The letter alleged that Martin was in financial difficulty and accused him of attempting to obtain lien waivers without payment to subcontractors.

On December 22,1989, the jury returned verdicts in favor of the plaintiffs and awarded damages as follows: Count I (CUTPA), $7500; Count II (breach of contract), $20,000; Count IV (libel), $1 nominal damages. The jury also returned a plaintiffs’ verdict on the counterclaim. Additionally, the trial court awarded the plaintiffs punitive damages in the amount of $7500, attorney’s fees of $6779 and costs of $582. Thereafter, the trial court denied the defendant’s motion to set aside the verdicts as excessive and contrary to the evidence.

I

The defendant first argues that the trial court incorrectly refused to set aside the verdicts as excessive and contrary to the evidence. A trial court should proceed cautiously when faced with a motion to set aside a jury verdict. “A trial court’s decision to set aside a jury verdict raises serious issues because of a litigant’s constitutional right to have issues of fact and the assessment of damages determined by a jury. Palomba v. Gray, 208 Conn. 21, 25, 543 A.2d 1331 (1988); Mather v. Griffin Hospital, 207 Conn. 125, 138, 540 A.2d 666 (1988).” Gold v. University of Bridgeport School of Law, 19 Conn. App. 379, 380, 562 A.2d 570, cert. denied, 213 Conn. 801, 567 A.2d 832 (1989). Furthermore, a trial court should not set aside a verdict where it is apparent that there is evidence in the record on which the jury might reasonably base their conclusion; a verdict should, however, be set aside where the record clearly reveals that manifest injustice would result from the verdict. Palomba v. Gray, supra, 24. Against these standards, we find that the trial court in this case did not abuse its discretion in refusing to set aside the verdicts.

The defendant seems to claim that the evidence at trial was insufficient to support the verdicts. The essence of this argument appears to rest on the defendant’s claim that the jury based its verdicts on evidence of a series of checks that had no relationship to the Valley View Drive construction project. Our review of the record, however, supports the conclusion that the evidence was relevant and was submitted to the jury for whatever weight the jury might accord to it. At trial, Martin testified that the checks were related to the Valley View Drive project. It is “the province of the jury [to] determine the credibility of the witnesses and the weight to be accorded their testimony . . . .” Kubec v. Foremost Foods Co., 179 Conn. 486, 487, 427 A.2d 391 (1980). From Martin’s testimony it is clear that the jury could have reasonably concluded that the checks admitted into evidence supported the plaintiffs’ claims regarding the Farmington house. Therefore, the defendant’s insufficiency claim must fail.

The defendant also appears to argue that the verdicts were excessive merely because the jury should have returned verdicts in his favor. There is no merit to this claim.

A claim that a verdict is excessive raises a question of law; Vandersluis v. Weil, 176 Conn. 353, 358, 407 A.2d 982 (1978); and on appeal the determinative inquiry is whether the verdict so shocks the conscience as to compel a reviewing court’s conclusion that it was due to partiality, prejudice or mistake. Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 544, 562 A.2d 1100 (1989).

The verdicts in this case were clearly within the province of the jury and fell within the “necessarily uncertain limits of [fair and] just damages.” Birgel v. Heintz, 163 Conn. 23, 28, 301 A.2d 249 (1972). The jury awarded the plaintiffs far less than the $80,000 in claimed kickbacks and overruns alleged in the complaint. Furthermore, pursuant to its authority under General Statutes § 42-110q (a), the trial court added $7500 in punitive damages to the jury’s award in the same amount for the CUTPA claim. Thus, the jury only awarded a total of $27,501 of a total judgment of $41,780, which included attorney’s fees and costs of $582 also set by the trial court. The jury’s verdicts can hardly be considered to “shock the conscience” under our standards of law. Indeed, given the evidence before the jury regarding the libel count, the argument that a nominal award of one dollar is excessive warrants no further discussion.

II

The defendant next claims that the trial court improperly refused to give a requested Secondino jury instruction with regard to the subcontractors who did not testify about the alleged kickbacks. The well established Secondino rule provides that “ ‘[t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause.’ ” Secondino v. New Haven Gas Company, 147 Conn. 672, 675, 165 A.2d 598 (1960). The party seeking the Secondino adverse inference instruction bears the burden of showing that he is entitled to it. Shelnitz v. Greenberg, 200 Conn. 58, 73, 509 A.2d 1023 (1986). That party must demonstrate that the witness (1) is available, (2) is one whom the party would naturally produce, and (3) has material or substantial testimony that is not cumulative or inferior to that which was offered. Secondino v. New Haven Gas Co., supra; C. Tait & J. LaPlante, Connecticut Evidence (2d Ed.) § 11.5.4 (f). All of these requirements must be strictly complied with. Fontaine v. Coyle, 174 Conn. 204, 209-12, 384 A.2d 616 (1978).

Initially, we note that our review of the record reveals that the defendant made no showing at trial that all the subcontractors on the Valley View Drive project were available as witnesses. Indeed, the defendant could have easily fulfilled this requirement as the evidence revealed that he hired and controlled all of the subcontractors. The defendant, as the party to benefit from the inference, has produced nothing in the record to demonstrate that all of the subcontractors were available as witnesses. See Schelnitz v. Greenberg, supra. Because the defendant merely invoked the Secondino rule through his requested instruction but provided us with nothing further on the record as to the availability of the witnesses, we are not persuaded that he has demonstrated that the Secondino charge is warranted. See Taylor v. American Thread Co., 200 Conn. 108, 112, 509 A.2d 512 (1986). “The Secondino charge . . . should not be given unless there is a sufficient foundation to do so.” Schelnitz v. Greenberg, supra, 75.

Ill

The defendant next challenges the court’s instruction regarding the claim of libel. We begin by again noting that the jury awarded the plaintiffs only a nominal award of one dollar on the libel count. A plaintiff’s verdict with a nominal damages award ordinarily suggests that the jury found that despite the defendant’s liability, the plaintiff failed to prove damages. Malmberg v. Lopez, 208 Conn. 675, 681-82, 546 A.2d 264 (1988). As such, nominal damages “ ‘exist only in name and not in amount.’ Sessa v. Gigliotti, 165 Conn. 620, 622, 345 A.2d 45 (1973), and cases cited therein.” CEUI v. CSEA, 183 Conn. 235, 252, 439 A.2d 321 (1981). Because the defendant, in effect, prevailed on this count insofar as only nominal damages were awarded against him, the trial judge’s inartful instruction on the question of libel per se could have resulted in only harmless error.

The defendant also claims, however, that the court’s instruction on libel per se tainted the verdict on the CUTPA count because libel was also incorporated into that count. In order for this court to determine whether the trial court’s instruction on the CUTPA count was legally correct and sufficient to support the jury’s verdict on that count, we would need the transcript of the charge itself. This is so because it well may be that the trial court adequately instructed the jury as to the elements of CUTPA and in so doing properly charged them that they could find that the libelous letter constituted a violation of CUTPA. However, the defendant has again failed to provide this court with a sufficient record to fully review his claim of error. It is the defendant’s burden as the appellant to provide this court with an adequate record for review. Bieluch v. Bieluch, 199 Conn. 550, 551, 509 A.2d 8 (1986). Accordingly, we need discuss the merits of this third claim no further.

IV

The defendant’s final claim requires little discussion. The claim that the trial court improperly failed to charge the jury that the plaintiffs had to prove fraud by clear and convincing evidence is a curious one, since the plaintiffs never specifically alleged fraud in their complaint nor was it ever an issue at trial. The defendant’s suggestion on appeal that the plaintiffs' claims in Count II (breach of contract) are tantamount to claims of fraud is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs withdrew two additional counts against the defendant on December 22, 1989.

       The defendant has not challenged that part of the jury’s verdict in favor of the plaintiff on the counterclaim.

       Although it is not clear from the record how the court’s award of $14,279 was apportioned, the parties agree in their briefs that $7500 is attributable to punitive damages and $6779 to attorney’s fees.

       The plaintiffs correctly point out that the defendant has not raised an evidentiary claim as to the admission of the checks.

       Paragraph 5 (c) of the CUTPA count sets forth in pertinent part: “The Defendant, John Samulis, in writing, to the Plaintiffs subcontractors, suppliers and bankers, falsely accused the Plaintiffs of having financial difficulties . . . .”


author: Foti, J.

text:
    Mary Lou Matey v. City of Waterbury et al.
    (8964)
    Dupont, C. J., Spallone and Foti, Js.
    Argued December is 1990
    decision released February 12, 1991

      Michael J. Belzer, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Charles Overend, assistant attorney general, for the appellant (second injury and compensation assurance fund).

      Laurence V. Parnoff, with whom, on the brief, was David A. Scalzi, for the appellee (plaintiff).
   Foti, J.

This is an appeal by the state second injury and compensation assurance fund (fund) from the denial of its motion to intervene and motion to open and set aside the denial.

This case is related to Matey v. Estate of Dember, 210 Conn. 626, 556 A.2d 599 (1989), and the facts underlying both actions are as follows. The plaintiff, Mary Lou Matey, was injured in a two car accident in Waterbury on August 9, 1984. At the time of the accident, she was a home health care worker employed by an elderly woman, Sarah Dember, who died shortly after the accident. Although Matey was acting in the course of her employment at the time of the accident, her employer did not carry workers’ compensation insurance. On July 8, 1985, Matey filed a claim for workers’ compensation benefits and sent a copy of the claim to the attorney representing the estate of Sarah Dember. The state treasurer participated in the formal hearing on behalf of the fund because of its potential liability under General Statutes § 31-355. The workers’ compensation commission found the fund liable, and on appeal the compensation review division affirmed the commissioner as to liability but remanded the case for further proceedings to determine the appropriate level of benefits. This remand required the taking of new evidence. On appeal, our Supreme Court dismissed the matter; Matey v. Estate of Dember, supra; for lack of a final judgment because the remand order required the agency to conduct further evidentiary proceedings.

While the workers’ compensation matter was pending, the present complaint was filed by the plaintiff against the municipal defendants which claimed that the city of Waterbury had not properly maintained and designed the intersection where the accident occurred. On November 14,1988, the fund filed a motion to intervene which the trial court, Flynn, J., denied on May 3, 1989. A motion to open and set aside the denial to intervene was denied by the court, Langenbach, J., on February 21,1990. On March 12,1990, the fund filed this appeal. At no time did the fund file a motion to stay proceedings pending appeal. On December 4,1990, the plaintiff filed a withdrawal of her action with the clerk of the Waterbury Superior Court.

As a preliminary matter, we must first determine whether this appeal has become moot by reason of the withdrawal.

Initially, we point out that the fund was never a party to this action and that the automatic stay of “proceedings to enforce or carry out the judgment” effected by the filing of an appeal; Practice Book § 4046; is inapplicable. Further, no application was made pursuant to Practice Book § 4047 to stay the order of the trial court where there is no automatic or other statutory stay available.

A plaintiff may withdraw any action as of right before the commencement of a hearing on the merits thereof; General Statutes § 52-80; and does not need the permission of the court for cause shown if a hearing on an issue of fact has not commenced. Barra v. Ridgefield Card & Gift Gallery, Ltd., 194 Conn. 400, 404, 480 A.2d 552 (1984). Such a withdrawal, the right of which is absolute and unconditional; Housing Authority v. Hird, 13 Conn. App. 150, 157, 535 A.2d 377, cert. denied, 209 Conn. 825, 552 A.2d 433 (1988); may, in a matter where a party has been denied a request to intervene, cause that party’s appeal from such denial to become moot. Commissioner of Revenue Services v. Estate of Culpeper, 4 Conn. App. 249, 250, 493 A.2d 297 (1985). The court, however, “has continuing jurisdiction to determine any claim of a vested right acquired during the pendency of an action and prior to its withdrawal, but . . . it must first reinstate it on the docket before granting the relief sought.” Lytwinick v. Lytwinick, 21 Conn. Sup. 497, 498, 157 A.2d 494 (1959). There is no reason why the trial court does not have jurisdiction to restore a case that has been voluntarily withdrawn to the active docket, just as it can open a judgment or restore to the docket a case that has been erased. Lusas v. St. Patrick’s Roman Catholic Church Corporation, 123 Conn. 166, 170, 193 A. 204 (1937).

The fund claims that it has a vested right to join in this action to seek reimbursement, which it acquired during the pendency of this action and prior to its withdrawal. The trial court cannot proceed with it further, unless it is restored to the docket. The question to be determined, therefore, is whether the fund had the right to intervene, which right was injuriously affected by the plaintiff’s withdrawal. See Bristol v. Bristol Water Co., 85 Conn. 663, 673, 84 A. 314 (1912). Although this analysis appears to put the cart before the horse, it is not illogical under the circumstances. If the fund had been allowed to intervene, the plaintiff would not have been allowed to withdraw without the fund’s agreement. An improper denial of that right prevented the fund as a party to the action from so objecting. This determination requires us to address the merits of the appeal.

The fund argues on appeal that General Statutes § 31-352 authorizes it to join in an action when it has paid, or by award has become obligated to pay, compensation out of the fund. The fund admits that it has only a potential obligation to pay benefits, but it points to a line of cases that supports the proposition that such a potential obligation is sufficient to allow intervention. The plaintiff objected to the motion to intervene claiming that the fund had “no standing to intervene because it had not yet become obligated to pay any benefits to or on behalf of Mary Lou Matey.” Although the court failed to disclose its reasoning in denying the motion to intervene and refusing to open and set aside, we must conclude that it acted on the basis of the plaintiffs objection, as no claim of untimeliness was made, nor does the record support such a claim.

We need not determine whether a potential obligation to pay benefits under General Statutes § 31-352 gives the fund a right to intervene because the record discloses that the fund had an actual obligation to pay benefits to Matey. In the initial compensation benefit action, the workers’ compensation commissioner found that the fund was liable for benefits to Matey. On appeal, the compensation review division affirmed the determination of liability remanded the matter “ ‘only on the specific issue of the equivalent monetary value of the weekly room and board.’ ” Matey v. Estate of Dember, supra, 629. In dismissing the appeal as premature on April 11,1989, the Supreme Court did not disturb the compensation review division’s affirmation of liability of the fund to pay benefits. Therefore, the fund had a current obligation to pay benefits, and not a merely potential one, as of the date that the trial court denied the fund’s motion to intervene on May 3,1989. The fund had become obligated to pay compensation, pursuant to General Statutes § 31-352, and was entitled to “join in an action” in order to seek reimbursement from a third party, in this case the municipal defendant.

The judgment is reversed and the case is remanded with direction to grant the motion to intervene subject to the exercise of the court’s discretion in allowing the restoration of this matter to the active docket.

In this opinion the other judges concurred.

       The denial of a motion to intervene is a final judgment for purposes of appealability if the would-be intervenor has a colorable claim of a right to intervene. Winslow v. Lewis-Shepard, Inc., 216 Conn. 533, 536, 582 A.2d 1174 (1990). Such a colorable claim has been made pursuant to General Statutes § 31-352.

       General Statutes § 31-355 provides: “(a) When an award of compensation shall have been made under the provisions of this chapter against an employer who fails or is unable to pay the medical and surgical aid or hospital and nursing service required under section 31-294 or any type of compensation for disability, or both, whether for total or partial disability of a permanent or temporary nature, death benefit, funeral expense, dependency allowance, or any adjustment in compensation required by this chapter, hereafter referred to as ‘the compensation’ and whose insurer fails or is unable to pay the compensation, such payments shall be made and compensation provided from the second injury and compensation assurance fund established in section 31-354. Upon finding by the commissioner of such failure to pay compensation, he shall give notice to the treasurer of such award, directing the treasurer to make payment from said fund. The employer and the insurer if any shall be liable to the state for any such payments made out of said fund or which the state has by award become obligated to make from said fund, together with cost of attorneys’ fees as fixed by the court. If reimbursement is not made, or a plan for payment to the fund has not been agreed to by the treasurer and employer, within ninety days of any such payment from the fund, the attorney general shall bring a civil action, in the superior court for the judicial district where the award was made, to recover all amounts paid by the fund pursuant to such award, plus double damages together with reasonable attorney’s fees and costs as taxed by the court. Any amount paid to the treasurer by such employer or insurer after the filing of such action but prior to its completion shall be subject to an interest charge of eighteen per cent per annum, calculated from the date of original payment from the fund. Any recovery made under this section, including any recovery for costs or attorney’s fees, shall be paid into the fund. Any administrative or other costs or expenses incurred by the attorney general in connection with carrying out the purposes of this section, including the hiring of necessary employees, shall be paid from the fund. The treasurer shall adopt regulations, in accordance with the provisions of chapter 54, which describe what constitutes a proper and sufficient ‘plan for payment to the fund’ for the purposes of this subsection.
      “(b) Notwithstanding the provisions of subsection (a) of this section, whenever the employer’s insurer has been determined to be insolvent, as defined in section 38-275, such payments shall be the obligation of the Connecticut Insurance Guaranty Association pursuant to the provisions of chapter 687.”

       In addition to the city of Waterbury, the other named defendants are the board of police commissioners, the superintendent of police, and the traffic engineer of the city of Waterbury.

       No reasons were given. The plaintiff’s objection to the motion to intervene stated that “intervention is not authorized by Section 31-355.” The fund did not seek an articulation.

       Reasons for the denial were not given. The fund did not seek an articulation.

       General Statutes § 31-352 provides: “The provisions of section 31-293 shall apply to any such payments and the treasurer is authorized to bring an action, or join in an action as provided by said section, when he has paid, or by award has become obligated to pay, compensation out of the fund.”

       The plaintiff’s motion to dismiss the appeal because of mootness is denied.


text:
    Morton Samose v. Hammer-Passero Norwalk Chiropractic Group, P.C. et al.
    (8537)
    Dupont, C. J., Spallone and Norcott, Js.

      Argued October 4, 1990
    decision released February 12, 1991

      William F. Gallagher, with whom were Robert L. Hirtle and, on the brief, John R. McGrail and Robert P. Borquez, for the appellants (named defendant et al.).

      Carl A. Secóla, Jr., for the appellee (plaintiff).
   Norcott, J.

This case involves a chiropractic malpractice action tried to a jury. The defendants appeal from the judgment rendered on the verdicts in favor of the plaintiff against the defendants Warren Hammer, a chiropractor, and the Hammer-Passero Norwalk Chiropractic Group, P.C., also known as both the Nor-walk Chiropractic Group, P.C., and the Chiropractic Center (hereinafter the Group ). The defendants claim that the trial court improperly refused to direct judgment or to set aside the verdict and failed to direct a verdict for the defendants (1) because the plaintiff failed to establish which defendant chiropractor caused his injury, (2) because the plaintiff failed to establish the risks and alternative courses of treatment of which he should have been informed by the defendants, (3) because the plaintiff failed to prove causation on his action for lack of informed consent, and (4) because the court failed to set aside the verdict as excessive. We affirm the trial court’s judgment.

From the evidence presented at trial, the jury could have reasonably found the following facts. On July 17, 1986, the defendant Hammer performed an adjustment on the plaintiff’s back. The defendant Passero performed a second back adjustment on the plaintiff on the following day. Passero testified that the adjustment he performed involved only “soft tissue manipulation” by hand. During the ensuing week, the plaintiff’s back condition worsened and he ultimately had to undergo surgery for the removal of two extended disc fragments and the decompression of his spine.

The plaintiff brought an action for damages for the injuries he allegedly sustained as a result of the defendants’ chiropractic malpractice and for their alleged performance of both chiropractic manipulations without his informed consent. At the conclusion of the plaintiff’s case-in-chief, the trial court denied the defendants’ motion for a directed verdict in which they alleged that the plaintiff had failed to prove causation. The jury then returned a general verdict in favor of the plaintiff against Hammer and the Group for $472,483.27. Thereafter, those defendants moved to set aside the verdict and for judgment notwithstanding the verdict on the grounds that (1) there was no evidence presented at trial on causation and (2) the verdict was excessive. The trial court denied the defendants’ motions and this appeal ensued.

I

On appeal, the defendants first challenge the trial court’s refusal to direct a verdict for them. They claim that the plaintiff’s evidence at trial failed to establish certain elements that are essential to a successful malpractice action.

“ ‘A directed verdict is not favored but is justified if, on the evidence, the jury could not reasonably and legally reach any other conclusion than that embodied in the verdict as directed.’ Kegel v. McNeely, 2 Conn. App. 174, 177, 476 A.2d 641 (1984); Buckley v. Lovallo, 2 Conn. App. 579, 583, 481 A.2d 1286 (1984). ‘On reviewing the action of the trial court in first directing and thereafter refusing to set the verdict aside, the evidence must be considered in the light most favorable to the plaintiff. Johnson v. Consolidated Industries, Inc., 153 Conn. 522, 524, 218 A.2d 380 (1966); Yeske v. Avon Old Farms School, Inc., 1 Conn. App. 195, 201, 470 A.2d 705 (1984).’ Kegel v. McNeely, supra.” Campbell v. Pommier, 5 Conn. App. 29, 31-32, 496 A.2d 975 (1985). “The trial court’s action, in refusing to set aside a verdict, cannot be reviewed in a vacuum because such a motion seeks to deprive ‘a litigant in whose favor a verdict has been rendered of his constitutional right to have disputed issues of fact determined by a jury . . . .’ Jacobs v. Goodspeed, 180 Conn. 415, 417, 429 A.2d 915 (1980). This requires the examination of the evidential underpinnings of the verdict.” Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 544, 562 A.2d 1100 (1989). A review of the evidence in this case leads us to conclude that the defendants’ claim must fail.

In order to prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury. Pisel v. Stamford Hospital, 180 Conn. 314, 334, 430 A.2d 1 (1980); see also Mozzer v. Bush, 11 Conn. App. 434, 438 n.4, 527 A.2d 727 (1987). It is clear from a review of the evidence that the jury could have reasonably found (1) that there was a national standard of care regarding spinal manipulation by chiropractors and (2) that the treatment of the plaintiff at the Group office on July 17 and 18,1986, deviated from that standard of care. Specifically, Jonathan McCullough, an expert witness on chiropractic medicine and a chiropractor himself, testified that the failure to take X rays of the seventy-six year old plaintiff, coupled with a subsequent spinal manipulation, was “a rather blatant deviation from the standard of accepted care” because of the “degenerative joint change” in the geriatric spine.

The defendants contend, however, that the plaintiff failed to prove which chiropractor, if either, caused his injury. The defendants further argue that there was no evidence presented at trial from which the jury could have determined which chiropractor was at fault or to what degree.

It is axiomatic that causation must be removed from the realm of speculation and conjecture. Doe v. Manheimer, 212 Conn. 748, 765, 563 A.2d 699 (1989); cf. Pisel v. Stamford Hospital, supra, 341-42. Our review of the evidence presented in this case, however, does not support the defendants’ claim that the jury could only have speculated as to which chiropractor caused the plaintiff’s injury. The plaintiff presented sufficient evidence from which the jury could have concluded that Hammer’s manipulation deviated from the standard of care and was causally connected to the plaintiff’s injury.

The theory of the plaintiff’s case was that the Group and its agents, Hammer and Passero, were jointly and severally liable for the acts that caused the plaintiffs injury. In support of this theory of recovery, the plaintiff presented evidence that on two successive days both Hammer and Passero manipulated the plaintiff’s back. The jury heard conflicting testimony as to the degree of force and type of spinal manipulations used on those occasions.

The plaintiff also presented the testimony of Charles Needham, a neurosurgeon who testified as an expert on causation. While the defendants are accurate in claiming that Needham would not say which chiropractor’s manipulation caused the plaintiff’s injury, it is disingenuous to suggest that Needham, nonetheless, did not testify that the injury was caused by “whatever chiropractor was involved.” In addition, the jury heard testimony regarding causation from the plaintiff, both defendant chiropractors and McCullough, a second expert witness. McCullough’s direct examination in particular is replete with testimony that Hammer’s manipulation ruptured the plaintiff’s disc and was thus responsible for the plaintiff’s injury.

Although the plaintiff premised his case solely on the theory of joint liability, the trial court’s charge allowed the jury to find that Hammer and Passero were jointly liable for the plaintiff’s injuries or individually liable for separate independent acts. See Reilly v. DiBianco, 6 Conn. App. 556, 507 A.2d 106, cert. denied, 200 Conn. 804, 510 A.2d 193 (1986). No special interrogatories were submitted to the jury in this case, and the jury returned a general verdict. The general verdict rule requires this court to presume that the jury found every issue in favor of the prevailing party. Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202, 520 A.2d 208 (1987). Thus, we must conclude that the jury in the present case, applying the trial court’s instructions to the evidence it believed to be the most credible, found that Hammer alone was responsible for the plaintiffs injury.

The defendants rely heavily on the case of Mozzer v. Bush, supra, and argue that the result in that case controls our decision in the present case. In Mozzer, the plaintiff sued to recover for personal injuries that she had allegedly sustained as a result of the malpractice of two defendant physicians who, she claimed, had not properly positioned and monitored her right arm during an operation, resulting in an ulnar neuropathy. In sustaining the trial court’s granting of a directed verdict in favor of the defendants, this court found that “[t]he plaintiff [had] presented no evidence as to what occurred during the surgical procedure and completely failed to identify any specific act of negligence on the part of any person.” (Emphasis added.) Id., 438 n.4. In the present case, in contrast, the plaintiff met his burden of presenting evidence as to what took place at the chiropractors’ offices and who acted on him on the dates in question. Mozzer is thus distinguishable from this case and does not control its outcome.

We conclude that there was sufficient evidence at trial from which the jury could have reasonably determined that Hammer alone was negligent and responsible for the chiropractic malpractice against the plaintiff. Because there was no question throughout the trial as to the principal-agent relationship between the Group and Hammer, the professional corporation was correctly held liable for the acts of its duly authorized agent.

II

The defendants next claim that the plaintiff failed to establish the risks and alternative courses of treatment about which they should have informed him, and that, therefore, the trial court improperly denied the defendants’ aforementioned motions. This claim requires little discussion. An examination of the record reveals that Needham, an expert witness, testified regarding the risks associated with the type of spinal manipulations performed on the plaintiff. If this testimony was accepted by the jurors as credible, they could reasonably have concluded that chiropractic spinal manipulation could result in “a spectrum of things,” especially on a seventy-six year old man with a “brittle spine.” It is clear from the evidence that there were risks associated with the types of manipulation involved here. The defendant chiropractors claimed that they failed to inform the plaintiff of risks or possible alternate courses of treatment simply because they considered their therapy to be without risk. We cannot accept the defendants’ contention that, under these circumstances, the plaintiff should have established more specifically those things within the “spectrum” referred to by Needham, things of which, by the defendant doctors’ own testimony, they would not have informed him because, in their opinion, none of them would occur. This claim is therefore without merit.

Ill

Similarly, the defendants’ third claim, that the plaintiff failed to establish causation as part of his action for lack of informed consent, must be rejected. In the second count of the plaintiff’s amended complaint, he alleged that “[t]he defendants failed to advise the plaintiff of all the risks of spinal manipulation and treatment in order for him to give his informed consent to the spinal manipulation and treatment.” (Emphasis added.) As previously discussed, the jury could reasonably have found from the evidence (1) that the injuries sustained by the plaintiff were caused by Hammer’s spinal manipulation, and (2) that, by their own admissions, neither chiropractor discussed with the plaintiff any potential risks associated with spinal manipulations. Additionally, the plaintiff testified on direct examination as follows:

“Q. Did [Hammer] ever discuss with you any potential risks associated with manipulation?

“A. No.

“Q. So he never—

“A. I would have walked out of the office if he did.”

In light of this evidence, we reject the defendants’ argument that the plaintiff failed to offer any evidence whatsoever on the element of causation as part of his action for lack of informed consent.

IV

The defendants’ final claim is that the trial court improperly failed to set aside the verdict as excessive. “The claim that the amount of a verdict is excessive raises a question of law and not of fact. Vandersluis v. Weil, 176 Conn. 353, 358, 407 A.2d 982 (1978).” Champagne v. Raybestos-Manhattan, Inc., supra, 556. On appeal, the determinative inquiry is whether the verdict so shocks the conscience as to compel a reviewing court’s conclusion that it was due to partiality, prejudice or mistake. Id.; see also O’Brien v. Seyer, 183 Conn. 199, 208, 439 A.2d 292 (1981). Our Supreme Court has reasoned that to survive a challenge based on excessiveness a verdict must fall “somewhere within the necessarily uncertain limits of just damages . . . .” Birgel v. Heintz, 163 Conn. 23, 28, 301 A.2d 249 (1972).

Where the trial court has denied a motion to set aside a verdict as excessive, we are limited to a determination of whether the court abused its discretion, and “its decision ‘can be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice or the mind is convinced that it is in fact entirely disproportionate to the injury. [W. Maltbie,] Conn. App. Proc., p. 151.’ . . .” (Citations omitted.) Champagne v. Raybestos-Manhattan, Inc., supra, 557.

The defendants claim that a $472,483.27 verdict is disproportionate to the injury sustained by this plaintiff, a man with a seven year life expectancy who, despite his claims of pain and suffering, still conducts his social and business affairs in virtually the same manner as before the injury. The defendants also note that the plaintiff claimed no lost wages in this action. Under these circumstances, the defendants argue that the verdict of almost one-half million dollars was excessive. We disagree.

We first note that the plaintiff introduced uncontroverted evidence that he suffers a 25 to 30 percent permanent partial disability as a result of his injury. Furthermore, the jury heard the testimony of the plaintiff’s wife that the plaintiff’s life-style, which once included many social activities and vacations, has been curtailed because of the resulting disability. She also testified that her observations of his everyday activities led her to conclude that “[tjhere’s an awful lot he can’t do. He’s always been a very active man and it’s just changed.” On the basis of this evidence, we cannot say or speculate as to how the jury arrived at its figure for damages. We can say, however, that the evidence was sufficient to support that award which, although generous, did not cross the line of impermissibility under our standards of review. The trial court did not abuse its discretion with respect to this verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       The jury returned a verdict in favor of the defendant Marino R. Passero, also a chiropractor. He is, therefore, not a party to this appeal.

       After the defendants’ oral motion for a directed verdict, the plaintiff unsuccessfully moved to reopen his case. The court, after reserving decision, denied the defendants’ motion as well.

       The trial court charged, in pertinent part, on the liability of the chiropractors as follows:
      “If you find that either Dr. Hammer or Dr. Passero or both violated the standard of proper chiropractic practice in one of these ways, and you further find that the plaintiff’s resulting damages came from the failure in any single one of these respects, or to put it another way, that one or more than one of these failures was a substantial factor in the production of the plaintiff’s injuries, then the plaintiff has prevailed on issues of negligence and of proximate causation and you must find for the plaintiff.” (Emphasis added.)
      The court also instructed the jury that “[ajlthough each defendant, Dr. Hammer and Dr. Passero, acted independently of the other so far as purpose or intent are concerned, if the negligence of each concurred and cooperated with the other in the production of a single and injurious result, that is the injury to Mr. Samose’s back, the plaintiff, Mr. Samóse, is entitled to recover from either party or both parties so concurring in the production of the injurious result.” (Emphasis added.)
      Although the plaintiff alleged only joint liability in his complaint, neither party objected to these instructions which, in effect, permitted the jury to find against either chiropractor on the basis of his individual liability. In addition, the defendant did not object to the admission of evidence presented by the plaintiff from which the jury could have reasonably concluded that Hammer alone caused the plaintiff’s injuries. Finally, neither party has argued on appeal that the court’s charge exceeded the boundaries of the plaintiffs complaint. Accordingly, as no challenge was made to the trial court’s actions either at trial or on appeal, the jury, in accordance with the court’s instructions and the evidence presented, properly found Hammer individually liable for the plaintiff’s injuries.


author: Dupont, C. J.

text:
    James C. Coste et al. v. Riverside Motors, Inc.
    (8963)
    Dupont, C. J., Daly and Foti, Js.
    Argued October 29, 1990
    decision released February 12, 1991

      Christopher C. Burdett, for the appellants (plaintiffs).

      Charles A. Deluca, with whom, on the brief, were Holly K. Dustin and llene J. Feldman, for the appellee (defendant).
   Dupont, C. J.

The plaintiffs appeal from a judgment rendered after the trial court granted the defendant’s motion to strike the plaintiffs’ complaint in its entirety. The sole issue on appeal is whether the plaintiff has alleged a cause of action in common law negligence for damages arising out of an automobile accident occurring after the plaintiff’s employer would not allow the plaintiff to leave work early to avoid traveling during a snowstorm.

The plaintiff’s complaint included a number of allegations. On January 19, 1987, the plaintiff was an automobile mechanic employed by the defendant, an automobile dealership. A snowstorm began about noon of that day, and shortly thereafter the defendant’s general manager released its office personnel because of “anticipated hazardous road conditions.” Several of the mechanics asked to leave as well, but the service manager would not allow the mechanics to leave until they finished their assigned work.

At 5:30 p.m. when the plaintiff left the defendant’s premises to drive home, the weather had worsened considerably. While driving down a hill, the plaintiff lost control of his car on the ice and snow covered road. His twenty year old Austin Mini Cooper crossed the center line of the highway and crashed head-on into another vehicle and he was severely injured.

The plaintiff claims that the defendant was negligent in requiring him to stay at work, “in total disregard of his safety and well-being, thereby forcing him to drive to his home, a distance of approximately ten miles, under extremely hazardous conditions.” In its memorandum of decision granting the defendant’s motion to strike, the trial court held that the plaintiff could not establish proximate cause between “the employer keeping the employees at work during a snowstorm and an employee’s own negligence in losing control of his car.”

“A motion to strike challenges the legal sufficiency of the pleadings. In reviewing the granting of a motion to strike, we construe the facts alleged in the complaint in a light most favorable to the pleader.” Hughes v. National Car Rental Systems, Inc., 22 Conn. App. 586, 588, 577 A.2d 1132, cert. denied, 216 Conn. 817, 580 A.2d 57 (1990). “ ‘This includes the facts necessarily implied and fairly provable under the allegations. . . . It does not include, however, the legal conclusions or opinions stated in the complaint. . . .’ ” (Citations omitted.) Burns v. Gleason Plant Security, Inc., 10 Conn. App. 480, 482, 523 A.2d 940 (1987). If facts provable under the allegations would support a defense or a cause of action, the motion to strike must be denied. Stradmore Development Corporation v. Commissioners, 164 Conn. 548, 550-51, 324 A.2d 919 (1973). In order to reverse the judgment of the trial court, therefore, this court must find that the allegations of the plaintiff’s complaint, if proven, would constitute negligence of the defendant.

The elements of a cause of action for negligence are duty, breach, causation and damages. Doe v. Manheimer, 212 Conn. 748, 755, 563 A.2d 699 (1989). The elements of duty and breach require that a defendant’s conduct constitutes fault in the performance of a duty owed to a plaintiff. Id., 754 n.2. Here, the alleged fault of the employer is the refusal to give the plaintiff permission to leave work early, thereby requiring the plaintiff to drive to his home under extraordinarily hazardous conditions. The implication of the delict is that an employer has a duty to ensure an employee a safe trip home or a duty to prevent an employee from driving in hazardous weather. Although we know of no case, statute or principle of common law that places such a duty on an employer, we need not reach the issue because we conclude that legal causation has not been sufficiently alleged.

In order for legal causation to exist, actual cause or cause in fact, as well as proximate cause, must be present. Doe v. Manheimer, supra, 757; Hughes v. National Car Rental Systems, Inc., supra, 589. Actual cause requires allegations that state that the particular injury would not have occurred in the precise way that it did occur without the defendant’s conduct. Most cases focus their discussion on proximate cause, and assume that cause in fact exists. Cardona v. Valentin, 160 Conn. 18, 273 A.2d 697(1970); Vastola v. Connecticut Protective System, Inc., 133 Conn. 18, 47 A.2d 844 (1946). Doe v. Manheimer, supra, is one of the cases that does discuss actual cause or cause in fact. There, the defendant, a landowner, impliedly admitted that his conduct was a cause in fact or the actual cause of the plaintiff’s injuries and the trial court found that the defendant’s conduct was the actual cause. Doe v. Manheimer, supra, 760. The parties and the court, therefore, agreed that the rape committed by an unknown rapist would not have occurred where it actually did had the defendant removed his overgrown bushes that shielded the rapist from view. Further, the court acknowledged that the jury could have found that the rapist who caused the plaintiff’s harm premeditated that his assault would occur in the exact location in which it did occur. Id.

Here, the plaintiff’s allegation is that his injuries and damages were the “direct and proximate result of the negligence of the defendant.” Even if the plaintiff’s complaint could be interpreted to allege actual cause, we conclude that his allegations are insufficient for proof of proximate cause. “In determining proximate cause, the point beyond which the law declines to trace a series of events that exist along a chain signifying actual causation is a matter of fair judgment and a rough sense of justice.” Boehm v. Kish, 201 Conn. 385, 391-92, 517 A.2d 624 (1986). Functionally, proximate cause is defined as an actual cause that is a substantial factor in the resulting harm. Doe v. Manheimer, supra, 757; Boehm v. Kish, supra, 391; Coburn v. Lenox Homes, Inc., 186 Conn. 370, 383, 441 A.2d 620 (1982). The fundamental inquiry in the substantial factor test is “ ‘ “whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence.” Merhi v. Becker, [164 Conn. 516, 521, 325 A.2d 270 (1973)]; see Palsgraf v. Long Island R.[R.] Co., [248 N.Y. 339, 354, 162 N.E. 99 (1928)].’ ” Doe v. Manheimer, supra, 758. The determination of proximate cause is ordinarily a question of fact for the trier; it becomes a question of law only when “the mind of a fair and reasonable person could reach only one conclusion . . . .” Hughes v. National Car Rental, Inc., supra, 590. The question should be submitted to the trier of fact if there is room for reasonable disagreement. Id.

Common sense and a wealth of experience tell us that accidents brought on by cars skidding on ice and snow covered roads are within the “scope of the risk” created by driving in a snowstorm. This does not mean, however, that such accidents are within the scope of the foreseeable risk created by the defendant’s conduct. Accidents and crimes occur for a myriad of reasons, including the vagaries of the weather and the vagaries of the conduct of criminals, but that does not make the risk of an accident or a crime reasonably foreseeable by a defendant whose conduct may have played some part in the accident or crime. See Doe v. Manheimer, supra, 762. The plaintiff cannot establish with any degree of certainty that the intervening event, the hazardous condition of the road, was within the scope of the risk created by the defendant’s conduct. Cardona v. Valentin, supra, 24-25.

The allegations of the complaint must equate to a damage to the plaintiff that is not overly remote to the conduct of the defendant and establishes a causal relationship between the harm and the conduct that is not conjectural. Wu v. Fairfield, 204 Conn. 435, 439, 528 A.2d 364 (1987); W. Prosser & W. Keeton, Torts (5th Ed.) § 43. The plaintiff alleges that the defendant refused the mechanics’ request to “leave work early,” instead requiring the mechanics to stay “until they had completed their assigned work.” The plaintiff’s complaint is riddled with proximate cause gaps because the allegations of the complaint leave breaks in the chain of causation.

Conjecture exists as to whether the harm to the plaintiff would have ensued had the plaintiff completed his assigned work earlier, and, therefore, could have 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. The defendant’s conduct is too inconsequential to the ultimate harm to the plaintiff, considering the many other variables, to rise to the level of proximate cause.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs’ complaint was brought in two counts, the first alleging negligence, the second, loss of consortium. Issues relating only to the first count are the subject of this appeal. As used in this opinion, the word plaintiff refers to the named plaintiff.

        Doe v. Manheimer, 212 Conn. 748, 563 A.2d 699 (1989), did not resolve the issue of whether the defendant owed the plaintiff a duty to exercise reasonable care although it recognized that actionable negligence requires proof of a breach of a duty owed. The court found it unnecessary to resolve the issue because it concluded that the plaintiff had not proved proximate cause as a matter of law. Many of the cases that discuss the elements of actionable negligence assume that a breach of duty exists but do not discuss those elements. Cardona v. Valentin, 160 Conn. 18, 273 A.2d 697 (1970); Robinson v. Southern New England Telephone Co., 140 Conn. 414, 101 A.2d 491 (1953).

       Recently courts have recognized expanded types of employment related torts such as wrongful discharge; Sheets v. Teddy’s Frosted Foods, 179 Conn. 471, 427 A.2d 385 (1980); negligent misrepresentation; D’Ulisse-Cupo v. Board of Directors of Notre Dame High School, 202 Conn. 206, 520 A.2d 217 (1987); negligent infliction of emotional distress; Collins v. Gulf Oil Corporation, 605 F. Sup. 1519 (D. Conn. 1985); Morris v. Hartford Courant Co., 200 Conn. 676, 681-82, 513 A.2d 66 (1986); intentional infliction of emotional distress; Brown v. Ellis, 40 Conn. Sup. 165, 484 A.2d 944 (1984); and negligent hiring, which holds an employer liable for the criminal, violent, or wrongful acts of his employees, including those that occur after working hours and away from the employer’s place of business. Cramer v. Housing Opportunities Commission, 304 Md. 705, 501 A.2d 35 (1985); see Ray v. Schneider, 16 Conn. App. 660, 548 A.2d 461, cert. denied, 209 Conn. 822, 551 A.2d 756 (1988).


author: Spallone, J.

text:
    State of Connecticut v. Richard L. Clark
    (8750)
    Dupont, C. J., Spallone and O’Connell, Js.

      Argued December 10, 1990
    decision released February 12, 1991

      Lauren Weisfeld, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      Leon F. Dalbec, Jr., deputy assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Patrick J. Clifford, senior assistant state’s attorney, for the appellee (state).
   Spallone, J.

The defendant, Richard Clark, was charged with the crime of murder in violation of General Statutes § 53a-54a. Prior to trial, the defendant filed a motion to suppress certain inculpatory statements that he had made to two police officers. After a hearing, the trial court, Purtill, J., denied the defendant’s motion. The state then filed a substitute information charging the defendant with one count of manslaughter in the first degree in violation of General Statutes § 53a-55 (a) (l). The defendant pleaded nolo contendere to the substitute information, reserving the right to appeal the denial of his motion to suppress. The defendant was thereafter sentenced to a term of sixteen years imprisonment. The defendant brings this appeal, pursuant to General Statutes § 54-94a and Practice Book § 4003, challenging the decision of the trial court denying his motion to suppress the inculpatory statements. Specifically, the defendant claims that the trial court improperly found that the defendant’s waiver of his Miranda rights was made voluntarily, knowingly and intelligently. We affirm the decision of the trial court.

At the hearing on the motion to suppress, the trial court was presented with the following evidence. On May 2,1988, officers of the New Haven police department responded to reports of a shooting at Sylvan Avenue in New Haven. Upon their arrival, they found that the victim, Owen Keefe, had been shot in his chest. The victim died a short time later.

Police investigation of the incident implicated the defendant in the shooting. On May 4,1988, Detective Joseph Green and Officer Leroy Deasc visited the defendant’s home to interview him. The defendant, who was sixteen years old at the time, and his older brother were outside of their home when the detectives arrived. Green and Deasc, who were in an unmarked vehicle and in plain clothes, identified themselves as police officers and the defendant identified himself as Richard Clark. The defendant then told the officers that, prior to their arrival, he was preparing to turn himself in because he had heard that the police wanted to talk to him. The officers asked the defendant whether he would be willing to go to the police station with them. He agreed to do so. The officers then asked the defendant’s brother if he wanted to accompany the defendant to the police station. He did not want to do so. The defendant was not handcuffed at any time nor did the officers display their weapons at any time. No words were exchanged during the ten minute ride to the police station.

At the police station, the defendant accompanied the detectives to an interview room. Before any questions were asked, Deasc read the Miranda rights to the defendant. The defendant was then handed a form containing those rights and asked to read it. After the defendant had read the Miranda rights, he proceeded to initial each particular warning. The waiver portion of the document was then read to the defendant and he read this portion of the document himself. The defendant asked no questions while reading the document, at no time asked for an attorney, and did not indicate to the officers that he wanted to remain silent. The defendant appeared to understand the questions asked concerning the Miranda rights, was articulate in his conversation, and did not appear to the officers to be under the influence of alcohol or drugs. The defendant signed the waiver form, agreeing to answer questions and to make a statement. The officers did not ask the defendant if he wanted a parent present during questioning nor did the defendant ask for one to be present.

After the Miranda waiver was executed, the officers began taking a formal statement from the defendant. A short time later, the officers brought in a tape recorder and placed it on the table in full view of the defendant. At the beginning of the recorded statement, the officers once again advised the defendant of his Miranda rights. The defendant then proceeded to give a statement to the officers. In his statement, the defendant admitted that he had shot the victim. Upon completion of the defendant’s statement, the officers sent the recorded statement to be transcribed. While the tape recording was being transcribed, the officers brought the defendant some food. The defendant was advised that he was going to be arrested for murder before the transcript of the recording was presented to him. The officers then followed the same procedure employed earlier in again advising the defendant of his Miranda rights. Deasc read those rights to the defendant, the defendant read them himself, the defendant initialed each particular warning, Deasc read the waiver portion of the document to the defendant, the defendant read the waiver portion of the form himself and then signed the waiver. After the execution of this second waiver form, the defendant read and signed his transcribed statement.

The defendant’s mother, Cora Clark, testified at the suppression hearing that she was at work when her daughter called and told her that the defendant had been arrested. Mrs. Clark testified that she called the police station, was told that her son was there, and told the officer on the phone that she would come right down to the station. According to Mrs. Clark, when she arrived at the police station she did not identify herself as the defendant’s mother, nor did she state that the defendant was not to be questioned. She was told that the defendant had been arrested for murder and that she could not see him. Mrs. Clark then went home. She did not attempt to contact an attorney for her son.

The defendant also testified at the suppression hearing. According to the defendant, he agreed to talk to the police officers because he believed that they were going to let him go after he was questioned. He also testified that he had asked the officers to call his home and ask for his mother, but that the officers ignored this request. The defendant further testified that he was a junior in high school, was an average student and had no trouble reading.

On appeal, the defendant claims that any waivers of his Miranda rights were invalid because he did not voluntarily, knowingly and intelligently waive those rights. He also claims that the statements he gave the police were involuntary. We disagree.

“To be valid, a waiver must be voluntary, knowing and intelligent. Miranda v. Arizona, 384 U.S. 436, 475, 478, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); State v. Gonzalez, 206 Conn. 213, 217, 537 A.2d 460 (1988); State v. Boscarino, 204 Conn. 714, 743, 529 A.2d 1260 (1987). The state has the burden of proving by a preponderance of the evidence that the defendant voluntarily, knowingly and intelligently waived his Miranda rights. State v. Hernandez, 204 Conn. 377, 395, 528 A.2d 794 (1987); State v. Chung, 202 Conn. 39, 48, 519 A.2d 1175 (1987); State v. Smith, 200 Conn. 465, 481, 512 A.2d 189 (1986). Whether a purported waiver satisfies those requirements is a question of fact that depends on the circumstances of the particular case. North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S. Ct. 1755, 60 L. Ed. 2d 286 (1979); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 2d 1461 (1938); State v. Boscarino, supra; State v. Chung, supra.” State v. Northrop, 213 Conn. 405, 417, 568 A.2d 439 (1990). “Although the issue is therefore ultimately factual, our usual deference to the fact-finding by the trial court is qualified, on questions of this nature, by the necessity for a scrupulous examination of the record to ascertain whether such a factual finding is supported by substantial evidence.” State v. Harris, 188 Conn. 574, 579-80, 452 A.2d 634 (1982); State v. Hernandez, 204 Conn. 377, 395-396, 528 A.2d 794 (1987).

After a careful review of the record, we conclude that the state has met its burden of proof. The defendant was read his Miranda rights, read those rights himself, initialed each of them, told the detective that he understood those rights, signed the waiver form, had no difficulty reading, was articulate, and was not under the influence of alcohol or drugs. Accordingly, there was ample evidence to support the trial court’s ruling that the state had sustained its burden of proving by a preponderance of the evidence that the defendant voluntarily, intelligently and knowingly waived his Miranda rights.

The defendant’s next claim is that his statement was not given voluntarily. He points to two factors that he claims impinged on the voluntariness of his incriminatory statement. The first factor is the defendant’s claim that he and his mother were not allowed to see each other at the police station and the second is that the defendant’s claim that he relied on alleged promises by the police that he could go home after making a statement. We agree with the trial court that under all of the circumstances the state met its burden of proving voluntariness.

“Irrespective of Miranda, and the fifth amendment itself, due process of law prohibits the state from using an involuntary confession at trial. Brown v. Allen, 344 U.S. 443, 475, 73 S. Ct. 397, 97 L. Ed. 469 (1953); State v. Shifflett, [199 Conn. 718, 727, 508 A.2d 748 (1986)].” State v. Barrett, 205 Conn. 437, 451, 534 A.2d 219 (1987). “The state must also prove the voluntariness of the defendant’s statements by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 489, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); State v. Barrett, [supra]; State v. Chung, [202 Conn. 39, 53, 519 A.2d 1175 (1987)].” State v. Northrop, supra, 419. “ ‘ “The [traditional] test of voluntariness is whether an examination of all of the circumstances shows that the conduct of police was such as to overbear the defendant’s will to resist and bring about a confession, not freely self-determined.” ’ ” State v. Gonzalez, 206 Conn. 213, 221-22, 537 A.2d 460 (1988). The voluntariness of a confession must be determined by the trial court as a preliminary question of fact. Sims v. Georgia, 385 U.S. 538, 87 S. Ct. 639, 17 L. Ed. 2d 593 (1967); State v. Shifflett, 199 Conn. 718, 727, 508 A.2d 748 (1986). On review, this court undertakes a scrupulous examination of the record to ascertain whether the trial court’s factual finding is supported by substantial evidence. State v. Madera, 210 Conn. 22, 48-49, 554 A.2d 263 (1989); State v. Gonzalez, supra, 223; State v. Shifflett, supra, 730.

The defendant’s assertion that his confession was involuntary because he was not allowed to see his mother before making his statement is without merit. The defendant’s testimony that he had asked the police to call his mother upon his arrival at the police station was refuted by the testimony of the two detectives. The defendant’s mother testified that when she arrived at the police station she never identified herself and there was no indication that any officer connected the defendant’s mother’s phone call with the subsequent appearance of a woman at the station. Similarly, there was no indication that the officers who interviewed the defendant knew that the defendant’s mother had tried to see him. Furthermore, even if the defendant’s testimony had been credited, the denial of a request to see one’s mother will not, in and of itself, render a statement involuntary. State v. Whitaker, 215 Conn. 739, 749, 578 A.2d 1031 (1990).

The second ground on which the defendant rests his claim that his confession was not voluntary is also without merit. During the suppression hearing, the defendant testified that when he got into the detective’s vehicle on the way to the police station the officers told him that they just wanted to ask him a few questions and then they would let him go. The defendant claims that this alleged comment constituted a promise intentionally and effectively suborning his incriminatory statements and causing his confession. See State v. Perry, 195 Conn. 505, 518, 488 A.2d 1256 (1985). We disagree.

The defendant’s testimony was refuted by the testimony of the two officers who stated that no conversation took place in the vehicle. The trial court could quite properly have found the officers’ testimony more credible. State v. McCarthy, 197 Conn. 247, 258, 496 A.2d 513 (1985). Moreover, even if the defendant’s testimony were credited, such a statement would not constitute a promise of leniency. When the defendant accompanied the police officers to the station house, he was not under arrest. The defendant told the officers that he was planning to tell the police what had happened and that he intended to turn himself in. As Deasc testified, the defendant was free to leave the station at any time until he confessed to shooting the victim. Until that point in time, the officers could have reasonably expected that the defendant would have continued to have been free to leave after answering a few questions. Certainly, we do not find that such a statement made under these circumstances would constitute such coercive police activity that it would render the defendant’s confession not “voluntary” within the meaning of the due process clause of the fourteenth amendment.

The judgment is affirmed.

In this opinion the other judges concurred.

       “[General Statutes] Sec. 53a-55. manslaughter in the first degree: class B felony, (a) A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or (2) with intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he committed the proscribed act or acts under the influence of extreme emotional disturbance, as provided in subsection (a) of section 53a-54a, except that the fact that homicide was committed under the infludence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subsection; or (3) under circumstances evincing an extreme indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person. ...”

        Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 602, 16 L. Ed. 2d 694 (1966).


author: Heiman, J.

text:
    Alice Freeman v. Alamo Management Company et al.
    (9006)
    Spallone, Daly and Heiman, Js.

      Argued December 13, 1990
    decision released February 12, 1991

      Joseph Procopio, with whom was Thomas R. Frizzell, for the appellants (defendants).

      Thomas W. Calkins, with whom, on the brief, was Nicholas W. Rosa, for the appellee (plaintiff).
   Heiman, J.

The defendants appeal from a judgment rendered in favor of the plaintiff on both the plaintiffs complaint and the defendants’ counterclaim. On appeal, the defendants claim that the trial court improperly (1) doubled the plaintiff’s damage award, (2) failed to enunciate the appropriate standard of proof in awarding double damages, (3) misconstrued the interaction of the damages provisions of General Statutes § 42-110a et seq., the Connecticut Unfair Trade Practices Act (CUTPA), and General Statutes § 47a-46, the entry and detainer act, (4) awarded damages in excess of the valuations the plaintiff had placed on the same property-in a separate bankruptcy proceeding, and (5) made a de facto award of punitive damages despite its finding that the defendants’ behavior did not warrant punitive damages.

The trial court found the following facts. On October 15, 1987, the plaintiff conveyed title to a three-family house located at 123-125 Pearl Street, Waterbury, to the defendant Alamo Management Company (Alamo). The plaintiff had occupied the first floor apartment. Before the closing, she attempted to enter into a use and occupancy agreement with Alamo because she was unable to find another apartment. Although this agreement never materialized, she remained in possession of the first floor apartment after the closing. She moved some of her belongings to a storage area, but left the balance of her appliances and personal property on the premises while she looked for a larger storage unit.

Alamo entered into an agreement to sell the premises to a third party. The new buyer had a mortgage commitment on November 26, 1987. On Saturday, November 28,1987, the defendant Dwayne Boise, acting as an agent of the defendant Alamo, forcibly entered the plaintiff’s apartment and began to remove her property. When the plaintiff arrived, Boise refused to allow her to enter the apartment. Her appliances were set aside so that she could pick them up the following Monday, but her other personal property was strewn about the yard or thrown in a dump truck for disposal.

The trial court also found (1) that because the plaintiff’s original possession of the premises was rightful, the only proper mode of eviction available to the defendants was that of summary process, (2) that the plaintiff had not abandoned the premises, (3) that the defendant Boise violated General Statutes § 47a-43 (a) (3) when he forcibly entered the plaintiff’s apartment, removed her personal property, and disposed of it, (4) that the plaintiff was entitled to double damages pursuant to General Statutes § 47a-46 in the amount of $14,000, (5) that the defendants’ actions violated CUTPA, (6) that, although the plaintiff was not entitled to the damages found under General Statutes §§ 47a-43 (a) (3) and 47a-46, and CUTPA, it would award the plaintiff reasonable attorney’s fees and her taxable costs, and (7) that the defendants’ behavior did not warrant punitive damages.

The defendants first claim that the trial court misconstrued General Statutes § 47a-4-6 by holding that the statute required a mandatory award of double damages once entry and detainer is found. To support this claim, the defendants direct our attention to the transcript of a hearing on the plaintiff’s motion to set attorney’s fees. At this hearing, the court stated that “the statute required me to award $14,000.”

The memorandum of decision filed by the trial court constitutes the judgment on the case. Practice Book § 4059. The content and intention of the court is determined by a review of all parts of the judgment. Lashgari v. Lashgari, 197 Conn. 189, 196-97, 496 A.2d 491 (1985).

The memorandum of decision in the present case states that “Section 47a-46 . . . permits a plaintiff who has proved a case under 47a-43 to recover double damages,” that “[djamages may be awarded,” and that “[t]he amount to be awarded must be left to the sound judgment of the trier. ” Clearly, the court realized that the award of double damages was discretionary and not mandatory. We cannot glean a contrary intention from a random phrase uttered by the court during a hearing on a motion that was unrelated to the issue of the doubling of damages.

The defendants’ next claim is that because the award of double damages is an extraordinary remedy, the trial court was obligated to apply a standard of clear and convincing evidence as the plaintiff’s burden of proof.

The defendants further contend that because the trial court failed to enunciate the standard of proof that it applied in awarding double damages, we must assume that it applied a lower standard of proof, that is, proof by a fair preponderance of the evidence.

On these two premises, the defendants posit that the issue of the award of double damages must be remanded to the trial court for the application of the proper standard of proof and a determination of whether the damages should be doubled. We agree.

The facts that are relevant to a determination of this issue are as follows. The final amended complaint in this case was in three counts. In the first count, the plaintiff pleaded facts alleging a violation of General Statutes § 47a-43 (a) (3). The gravamen of a violation of § 47a-43 (a) (3), as applicable here, is that the defendants entered the dwelling unit of the plaintiff and removed or detained her personal property. The second count of the complaint, based on a conversion theory, realleges a violation of § 47a-43 (a) (3) and then alleges failure to return the personality so removed. The third count realleges a violation of § 47a-43 (a) (3) as a factual predicate for the invocation of a claim of a CUTPA violation pursuant to § 42-110a et seq. Thus, all of the factual claims of the case have as their foundation allegations of a violation of § 47a-43 (a) (3).

The trial court held that the defendants incurred liability because the facts supported a conclusion that the plaintiff was rightfully in possession of the premises, and that the defendants entered and removed the plaintiff’s personal property, disposing of a portion of it in violation of General Statutes § 47a-43 (a) (3).

The issue of what standard of proof should be required for double damages pursuant to General Statutes § 47a-46 appears to be one of first impression. The statute itself is silent with respect to the standard of proof required to support an award of double damages.

The degree of proof required is often related to the nature of the remedy sought, the proof of willful, wrongful and unlawful acts or to justify areas of result that are serious. “ ‘[CJlear and convincing proof is a standard frequently imposed in civil cases where the wisdom of experience has demonstrated the need for greater certainty, as where this high standard is required to sustain claims which have serious consequences or harsh or far-reaching effects on individuals, to prove willful, wrongful and unlawful acts, to justify an exceptional judicial remedy, or to circumvent established legal safeguards . . . .’ ” Schaffer v. Lindy, 8 Conn. App. 96, 104, 511 A.2d 1022 (1986).

The genesis of the statutes relating to entry and detainer is a desire to protect the peace of a neighborhood, as a matter of public policy. “By enactments dating back to colonial times, our legislature has proscribed the use of self-help remedies in obtaining possession of demised premises. Orentlicherman v. Matarese, 99 Conn. 122, 125-26, 121 A. 275 (1923). A colonial enactment from 1722, for example, established fines and a cause of action to remedy ‘any Forceable Entry made into any lands, tenements or other Possessions ... or of any wrongful detainer of any lands, tenements, or other possessions, with force and strong hand.’ 6 Colonial Records of Connecticut 1717-1725, p. 343; see also General Statutes § 47a-43 (‘Complaint and procedure: Forcible entry and detainer’). These legislative enactments were designed to ‘protect . . . peaceable possession . . . from disturbance by any but lawful and orderly means’; Orentlicherman v. Matarese, supra, 126; and to protect the ‘peace of the neighborhood.’ (Emphasis omitted.) Dutton v. Tracy, 4 Conn. 79, 86 (1821).” Daddona v. Liberty Mobile Home Sales, Inc., 209 Conn. 243, 257, 550 A.2d 1061 (1988). The violation of the statutes relating to entry and detainer constitutes a violation of the public policy of this state. Id.

Based on the origins of entry and detainer, it is clear that its violation involves willful, wrongful and unlawful acts. See Orentlicherman v. Matarese, supra, 126. Further, a statute that exposes a defendant to double damages creates a remedy with serious consequences to an individual. Schaffer v. Lindy, supra.

“ ‘A standard of proof allocates the risk of error between the litigants and indicates the relative importance of the ultimate decision. Addington v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 1808, 60 L. Ed. 2d 323 (1979). For example, the “proof beyond a reasonable doubt” standard implies that the party on whom that burden is imposed should bear almost the entire risk of error. Id. at 423-24, 99 S. Ct. at 1808. In contrast, the “preponderance of the evidence” standard indicates that the litigants should share equally the risk of error, id. at 423, 99 S. Ct. at 1808, because the interests at stake have roughly equal societal importance. Santosky v. Kramer, 455 U.S. 745, 787, 102 S. Ct. 1388, 1411-12, 71 L. Ed. 2d 599 (1982) (Rehnquist, J., dissenting). Proof by “clear and convincing” evidence is an intermediate standard generally used in civil cases involving allegations of fraud or some other quasi-criminal wrongdoing, or when particularly important individual rights are involved. Addington, 441 U.S. at 424, 99 S. Ct. at 1808.’ United States v. Schell, 692 F.2d 672, 676 (10th Cir. 1982) (preponderance of the evidence standard, constitutional in ‘dangerous special offender’ proceeding to enhance defendant’s criminal sentence).” Cookson v. Cookson, 201 Conn. 229, 234, 514 A.2d 323 (1986).

Accordingly, we conclude that, before a trial court may double an award of damages pursuant to General Statutes § 47a-46, the underlying violation of General Statutes § 47a-43 (a) (3) must have been established by clear and convincing evidence, and that, if the evidence satisfies only the fair preponderance standard, damages cannot be doubled.

The trial court’s memorandum of decision in this case does not set out the standard of proof employed by the court in arriving at its decision to double the damages awarded. When a memorandum of decision of the trial court is silent as to the standard of proof employed, it will be assumed that the one ordinarily applied in most civil actions, that of a fair preponderance of the evidence, was used. Manaker v. Manaker, 11 Conn. App. 653, 660, 528 A.2d 1170 (1987); Schaffer v. Lindy, supra, 105; Kavarco v. T.J.E., Inc., 2 Conn. App. 294, 297, 478 A.2d 257 (1984).

In its memorandum of decision, the trial court neither stated nor implied that it was applying the proper standard of proof. Under these circumstances “it is impossible for an appellate court to determine whether the trial court, had it applied the required standard of proof, would still have rendered judgment as it did.” Kavarco v. T.J.E., Inc., supra. Therefore, a new trial is necessary, limited to the issue of whether double damages should be awarded pursuant to General Statutes § 47a-46. See Schaffer v. Lindy, supra.

The defendant next claims that the trial court improperly awarded attorney's fees and costs pursuant to General Statutes § 42-110g in addition to its award of double damages pursuant to General Statutes § 47a-46. We do not agree.

In its memorandum of decision, the trial court concluded that the actions of the defendants violated the plaintiffs rights under CUTPA, pursuant to General Statutes § 42-110a et seq. On the basis of that violation, the court awarded reasonable attorney’s fees and costs. The defendants do not attack the conclusion of the trial court that a CUTPA violation had been established, but posits that its failure to award damages under CUTPA precluded the trial court from awarding attorney’s fees.

The public policy underlying CUTPA is to encourage litigants to act as private attorneys general and to engage in bringing actions that have as their basis unfair or deceptive trade practices. Hernandez v. Monterey Village Associates Limited Partnership, 17 Conn. App. 421, 425, 553 A.2d 617 (1989). In order to encourage attorneys to accept and litigate CUTPA cases, the legislature has provided for the award of attorney’s fees and costs. Gill v. Petrazzuoli Bros. Inc., 10 Conn. App. 22, 33, 521 A.2d 21 (1987); see also Chrysler Corporation v. Maiocco, 209 Conn. 579, 593, 552 A.2d 1207 (1989). Once liability has been established under CUTPA, attorney’s fees and costs may be awarded at the discretion of the court. Ven Nguyen v. DaSilva, 10 Conn. App. 527, 530, 523 A.2d 1369 (1987).

The court properly awarded attorney’s fees and costs to the plaintiff.

The defendants next assert that the court improperly awarded damages to the plaintiff on the basis of both the doctrine of collateral estoppel and double recovery. We do not agree.

Certain additional facts are necessary for an understanding of these claims. The plaintiff had filed a petition in bankruptcy in January, 1987. In a schedule of exempt property, she set forth the value of her “household furniture, kitchen utensils and appliances” at $500. The plaintiff did not acquire any additional personal property after the date of her filing of the petition. From these facts, the defendants assert (1) that the plaintiff is collaterally estopped from asserting a value of goods in excess of the value set forth in the petition in bankruptcy, and (2) that, because the plaintiff had received a discharge in bankruptcy, she had already received a valuable consideration for the same goods. We are not persuaded.

In order successfully to assert a defense of collateral estoppel, the defendants must establish that the issue had been fully and fairly litigated in another proceeding, that the issue was actually decided and that the decision was necessary to the judgment. Virgo v. Lyons, 209 Conn. 497, 501, 551 A.2d 1243 (1988). Here, the defendants failed to establish any of these conditions and, thus, the court correctly refused to apply the doctrine of collateral estoppel.

The second prong of the claim is equally without merit. The record is devoid of any evidence that the plaintiff ever received a discharge in bankruptcy, although it does indicate that she did file a petition. In addition, no evidence was introduced to establish how a discharge in bankruptcy can be equated with the permanent loss of the goods that are the subject of this appeal. We find no fault with the court’s ruling in this regard.

Finally, the defendants’ last claim combines claims that have been previously discussed in this opinion and resolved. We have already determined that a partial new trial is required on the double damages issue and we have held that an award of attorney’s fees under CUTPA was proper. This fully answers the final claim of the defendants.

That part of the judgment awarding double damages is reversed, and the case is remanded for a new trial limited to the issue of whether double damages should be awarded pursuant to General Statutes § 47a-46. In all other respects the judgment is affirmed.

In this opinion the other judges concurred.

       The defendants in this action are the Alamo Management Company and Dwayne Boise, a real estate salesman and agent of the defendant management company.

       General Statutes § 47a-43 (a) provides in pertinent part: “When any person . . . (3) enters into any land, tenement or dwelling unit and causes damage to the premises or damage to or removal of or detention of the personal property of the possessor . . . the party thus ejected, held out of possession, or suffering damage may exhibit his complaint to any judge of the superior court.”

       General Statutes § 47a-46 provides: “when double damages allowable. The party aggrieved may recover in a civil action double damages and his costs against the defendant, if it is found on the trial of a complaint brought under section 47a-43 that he entered into the land, tenement or dwellng unit by force or after entry held the same by force or otherwise injured the party aggrieved in the manner described in section 47a-43.”

       General Statutes § 42-110g provides: “action for damages, class ACTIONS. COSTS AND FEES. EQUITABLE relief, (a) Any person who suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment of a method, act or practice prohibited by section 42-110b, may bring an action in the judicial district in which the plaintiff or defendant resides or has his principal place of business or is doing business, to recover actual damages. Proof of public interest or public injury shall not be required in any action brought under this section. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper.
      “(b) Persons entitled to bring an action under subsection (a) of this section may, pursuant to rules established by the judges of superior court, bring a class action on behalf of themselves and other persons similarly situated who are residents of this state or injured in this state to recover damages.
      “(c) Upon commencement of any action brought under subsection (a) of this section, the plaintiff shall mail a copy of the complaint to the attorney general and, upon entry of any judgment or decree in the action, shall mail a copy of such judgment or decree to the attorney general.
      “(d) In any action brought by a person under this section, the court may award, to the plaintiff, in addition to the relief provided in this section, costs and reasonable attorneys’ fees based on the work reasonably performed by an attorney and not on the amount of recovery. In a class action in which there is no monetary recovery, but other relief is granted on behalf of a class, the court may award, to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorneys’ fees. In any action brought under this section, the court may, in its discretion, order, in addition to damages or in lieu of damages, injunctive or other equitable relief.

        “(e) Any final order issued by the department of consumer protection and any permanent injunction, final judgment or final order of the court made under section 42-110d, 42-110m, 42-110o or 42-110p shall be prima facie evidence in an action brought under this section that the respondent or defendant used or employed a method, act or practice prohibited by section 42-110b, provided this section shall not apply to consent orders or judgments entered before any testimony has been taken.
      “(f) An action under this section may not be brought more than three years after the occurrence of a violation of this chapter.”