author: Borden, J.

text:
    Mary Stitzer v. Rinaldi’s Restaurant et al.
    (6172)
    Borden, Daly and Norcott, Js.
    Argued May 10—
    decision released August 2, 1988

      Jason M. Dodge, with whom, on the brief, was Douglas L. Drayton, for the appellants (defendants).

      Edward T. Dodd, Jr., for the appellee (plaintiff).
   Borden, J.

The defendants appeal from a decision of the compensation review division granting an award to the plaintiff for surgical scars on her neck and hip pursuant to General Statutes § 31-308 (d). The sole issue on appeal is whether the compensation review division erred in concluding that the plaintiffs scars which resulted from spinal surgery are compensable. We find no error.

The facts relevant to this appeal are undisputed. On September 11, 1981, the plaintiff, while employed by the named defendant, sustained a compensable injury to her neck which was diagnosed as a cervical disc injury. On January 5,1983, the plaintiff underwent an anterior C4-C5 discectomy and fusion. The fusion required that a piece of bone from her hip be removed and grafted on the indicated vertebral bodies. The cervical fusion surgery and bone graft left surgical scars on the claimant’s hip and on the front portion of her neck.

The plaintiff sought an award under General Statutes § 31-308 (d) for both scars. The commissioner determined that neither scar was compensable. The compensation review division reversed that decision, concluding that the “spinal surgery” exclusion of § 31-308 (d) precludes compensation only for “scars resulting directly from an incision on the back” and that “[njeither of the scars here . . . derived from an incision on the back.” This appeal followed.

The defendants argue that the decision of the review division is contrary to the clear language of General Statutes § 31-308 (d), which provides that “no compensation shall be awarded ... for any scar resulting from . . . any spinal surgery.’’Claiming that this language is unambiguous, the respondents urge us to rely upon that well established principle of statutory interpretation which requires “that statutory language is to be given its plain and ordinary meaning. . . . [I]f the language of the statute is clear, it is assumed that the words themselves express the intention of the legislature and there is no room for judicial construction of the statute.” (Citations omitted.) Mazur v. Blum, 184 Conn. 116, 118-19, 441 A.2d 65 (1981). We do not agree.

“ ‘The objective of statutory construction is to give effect to the intended purpose of the legislature.’ State v. Delafose, 185 Conn. 517, 521, 441 A.2d 158 (1981). Although it is axiomatic that, where the statutory language is clear and unambiguous, construction of the statute by reference to its history and purpose is unnecessary; Manchester v. Manchester Police Union, 3 Conn. App. 1, 6, 484 A.2d 455 (1984); that axiom only applies in full force ‘[wjhere . . . the language of a statute is . . . absolutely clear’ on its face and where no ambiguity is disclosed by reference to its background. (Emphasis in original.) Anderson v. Ludgin, 175 Conn. 545, 552-54, 400 A.2d 712 (1978). Where such absolute clarity is lacking and such an ambiguity is disclosed, the court must look to the language of the statute, its history, purpose, objective and underlying policy. Id. What appears to be clear statutory language should not be read to arrive at an ‘ambiguous or unreasonable result’ or to ‘defeat a legislative intent which becomes evident when the statute is read in the light of its history and purpose.’ State v. Delafose, supra, 522.” Shelby Mutual Ins. Co. v. Della Ghelfa, 3 Conn. App. 432, 437-38, 489 A.2d 398 (1985), aff'd, 200 Conn. 630, 513 A.2d 52 (1986).

The background to the disfigurement provisions of General Statutes § 31-308 (d) discloses ambiguity in the “spinal surgery” exclusion. “The portion of the statute authorizing an award for disfigurement had its origin in the enactment of § 1328e of the 1939 Cumulative Supplement, which amended § 5237 of the 1930 Revision of the General Statutes (providing compensation for partial incapacity) by authorizing an award ‘for any serious and permanent disfigurement of the face, neck, head or hands.’ In 1943, by the enactment of § 698g of the 1943 Supplement, the disfigurement provision was amended by adding ‘forearms’ after ‘head.’ With these amendments (and other amendments unrelated to the disfigurement provision), § 5237 was carried into the 1949 Revision of the General Statutes as § 7431. ... [That provision] became § 31-162 of the 1958 Revision, but it was amended by § 7 of No. 580 of the 1959 Public Acts, which added after the word ‘hands’ the words ‘upper arms and legs below the knees.’ The sections of the entire compensation act were rearranged and renumbered in 1961 so that § 31-162, as amended in 1959 and, in a respect immaterial to this appeal, in 1961, [was] designated § 31-308.” Rivera v. I.S. Spencer’s Sons, Inc., 154 Conn. 162, 165, 223 A.2d 808 (1966). Although the enumeration of specific body parts in the disfigurement compensation provision placed Connecticut’s compensation law “[a]t the most restrictive end of the spectrum”; 2 Larson, Workmen’s Compensation Law § 58.32, p. 10-344.140; “[i]t is obvious that the course of these various amendments was to increase the portions of the body embraced in the disfigurement provision and that this purpose was accomplished by the enumeration of additional specific portions of the body in line with the method followed in the drafting of the original disfigurement provision. . . . [T]he broadening of the disfigurement provision, by successive amendments, to include additional enumerated portions of the body has tended to follow the increasing exposure of modern dress. Finoia v. Winchester Repeating Arms Co., 130 Conn. 381, 384, 34 A.2d 636 [1943]; Dombrowski v. Fafnir Bearing Co., 148 Conn. 87, 92,167 A.2d 458 [1961].” Rivera v. I.S. Spencer’s Sons, Inc., supra, 165-66.

Public Acts 1967, No. 67-842 amended General Statutes § 31-308 and replaced the enumeration of compensable body parts with an all-inclusive coverage of “scar[s] on, any part of the body” but excluded those “resulting from a hernia operation or any spinal surgery.” While the disfigurement coverage of § 31-308 was changed from a provision of enumerated inclusions to one of enumerated exclusions, nothing in the 1967 amendment or its legislative history indicates that the coverage of § 31-308 was intended to diminish. In fact, the legislative history reflects an intent to continue the trend of broadening the compensability for disfiguring scars. The only references to the “spinal surgery” exclusion in the legislative history accompanying the 1967 amendment to § 31-308 referred to this exclusion as covering “scars which are disfiguring... due to an operation on the back”; 12 H.R. Proc., Pt. 9, 1967 Sess., p. 4039, remarks of Representative Paul Pawlak, Sr.; and an “operation for a . . . back injury.” 12 S. Proc., Pt. 5, 1967 Sess., p. 2259, remarks of Senator Anthony P. Miller. In 1975, Public Act 75-48 changed the “hernia operation” exclusion to “an inguinal hernia operation” exclusion in order to permit recovery for scars resulting from chest hernias, thereby making the disfigurement provision consistent with the “previous practice” of allowing compensation for “visible scars.” 18 H.R. Proc., Pt. 3, 1975 Sess., p. 1292, remarks of Representative Joseph S. Coatsworth.

Thus, it appears from the history of § 31-308, as amended, that the “spinal surgery” and “inguinal hernia operation” exclusions were intended to be narrow provisions designed to add other parts of the body to the coverage of the statute and thus to continue, in a different form, the long established compensation exclusion for disfigurement of body parts which are not “ordinarily exposed.” Finoia v. Winchester Repeating Arms Co., supra, 384; see also Dombrowski v. Fafnir Bearing Co., supra, 92 (“either frequently or usually exposed to view”). Nowhere in the statute itself or in the 1967 legislative comments on the “spinal surgery” amendment was there any mention of eliminating scars on the front of the neck, an “ordinarily exposed” part of the clothed body which had been included in our state’s workers’ compensation disfigurement provision since 1939.

Further ambiguity in the “spinal surgery” exclusion, as it applies to a scar on the front of the neck from spinal fusion surgery, is evident in light of changing medical practice. Anterior incisions on the neck for cervical disc surgery were not generally known in 1967. Only recently has the frontal approach been widely utilized. IB R. Gray & L. Gordy, Attorneys’ Textbook of Medicine (3rd Ed.) Para. 10A.75 (2), p. 10A-68. Thus, in 1967, when the legislature excluded “any scar resulting from . . . any spinal surgery,” it did not contemplate that its exclusion would have any impact on a claimant seeking compensation for scarring on the front of her neck.

Reference to the background of § 31-308 (d), therefore, discloses that the “spinal surgery” exception requires judicial construction in order not to “ ‘defeat a legislative intent which becomes evident when the statute is read in the light of its history and purpose.’ ” Shelby Mutual Ins. Co. v. Della Ghelfa, supra, 438, quoting State v. Delafose, supra, 522. Given the statutory language, the legislative history, and the state of medical arts in 1967, we hold that, through enactment of the “spinal surgery” exclusion in General Statutes § 31-308 (d), the legislature intended to eliminate scarring benefits for scars, resulting directly from an incision on the back in the course of spinal surgery, but did intend to continue to compensate employees for scars which are disfiguring or distracting from the personal appearance of the individual. Since neither of the scars involved here resulted directly from an incision on the back during spinal surgery, the review division properly concluded that the plaintiff should be compensated for the scars pursuant to General Statutes § 31-308 (d).

There is no error.

In this opinion the other judges concurred.

       The named defendant is the plaintiff’s employer. The defendant Continental National American Group is the employer’s workers’ compensation insurer.

       General Statutes § 31-308 (d) provides in relevant part: “In addition to compensation for total or partial incapacity or for a specific loss of a member or use of the function of a member of the body, the commissioner may award such compensation as he deems just ... for any permanent significant disfigurement of, or permanent significant scar on, any part of the body . . . but no compensation shall be awarded when such disfigurement was caused solely by the loss of or the loss of use of a member of the body for which compensation payments are provided by the terms of subsection (b) of this section or for any scar resulting from an inguinal hernia operation or any spinal surgery. ” (Emphasis added.)

       Public Acts 1967, No. 67-842 also amended § 31-308 by, inter alia, deleting the requirement that the disfigurement be “serious.”

       An “inguinal hernia” is a hernia, or a protrusion of an internal bodily organ outside the confines of its body cavity, which consists of a rupture in the inguinal canal, a passage in the region of the groin. 4A R. Gray & L. Gordy, Attorneys’ Textbook of Medicine (3rd Ed.) Paras. 222.01, 222.11 (1), 222.11 (2), 222.30, 222.40. “The most common hernias are the abdominal hernias and of these the most common is known as the indirect inguinal hernia . . . .” Id., Para. 222.01, p. 222-4.

       Public Acts 1979, No. 79-376 inter alia, divided General Statutes § 31-308 into subsections, placing the disfigurement provision into subsection (d). Public Act 79-376 also added the requirement that compensable permanent disfigurement or scarring be “significant.”


source: Caselaw Access Project

author: Bieluch, J.

license: Public Domain

text:
    Paul Elis v. Maurice Rogers, Jr.
    (5671)
    Daly, Bieluch and Foti, Js.
    Argued February 16—
    decision released August 2, 1988

      Richard J. Pober, for the appellant (plaintiff).

      David Pinciaro, with whom, on the brief, was Frank Toro, Jr., for the appellee (defendant).
   Bieluch, J.

The plaintiff appeals from the judgment rendered in favor of the defendant in this action for the foreclosure of a mortgage. The plaintiffs principal claim of error is that the trial court erred in allowing testimony relating to a setoff against the underlying mortgage note even though a defense of setoff was not specially pleaded in the defendant’s answer. We find this claim to be unavailing and our conclusion thereon dispositive of the appeal. We find no error.

The facts relevant to this appeal are as follows. On November 1, 1978, the defendant, a real estate salesman and broker, became affiliated as an independent contractor with the plaintiff’s commercial real estate agency, Paul Elis & Company. Pursuant to the “independent contractor agreement” entered into by the defendant and the plaintiff’s agency, the defendant’s sole compensation was the receipt of commissions based upon his sales and leases. By October, 1982, the defendant had received extensive drawings against future commissions. The plaintiff then asked the defendant to secure his indebtedness before any further monies would be advanced. On October 21, 1982, the defendant signed a promissory note for $15,000 at 20 percent interest, payable in one installment upon maturity one year later. This note was secured by a first mortgage deed executed in California on property owned by the defendant in Orange, Connecticut. In December, 1982, the plaintiff sold his business, and the mortgage note and deed were assigned to Elis Central Investments, a personal investment account of the plaintiff and his former wife.

On February 22,1985, the plaintiff, claiming that the principal and interest due on the note had not been paid, brought a foreclosure action on the mortgage securing the note. In response to the plaintiffs demand for disclosure of defense, the defendant himself, not through his attorney, on April 16, 1986, filed the following disclosure of defense: “The Defendant, Maurice Rogers, has reason to believe and does believe that there exist bona fide defenses to the Plaintiffs action and these following defenses will be made by the Defendant: 1. The Defendant has satisfied the debt due to the Plaintiff; and 2. set off of mutual debts pursuant to Connecticut General Statutes Section 52-139.” (Emphasis added.) Although anticipated by such disclosure of defense, these defenses were not thereafter pleaded. The subsequent answer filed by the defendant consisted only of admissions and denials of the allegations in the plaintiffs complaint.

This matter was tried before the court on November 13,1986. The plaintiff testified that substantial payments, in the form of offsets against commissions owed the defendant, had been made against the mortgage note. The only issue before the court was the balance due and owing on the note. On the basis of the testimonial and documentary evidence before it, the court concluded that the note had been fully paid by the earned commissions credited against the defendant’s note, the method of payment chosen by the parties. Judgment was thereupon rendered for the defendant, and this appeal followed.

The controlling issue in this appeal is the plaintiff’s contention that the trial court erred in considering the defendant’s claimed setoff without its having been pleaded by the defendant. The plaintiff’s claim fails in several respects.

The plaintiff bases his argument on the fallacious premise that an issue of setoff was involved in this case. No setoff was pleaded or implicated here. “The law of setoff is governed by General Statutes § 52-139. The relevant portion of that statute provides: ‘(a) In any action brought for the recovery of a debt, if there are mutual debts between the plaintiff or plaintiffs, or any of them, and the defendant or defendants, or any of them, one debt may be set off against the other.’ (Emphasis added.) A condition precedent to the application of § 52-139 is that the defendant’s claim arise from a debt due by the plaintiff. See Savings Bank of New London v. Santaniello, 130 Conn. 206, 211, 33 A.2d 126 (1943). It is the defendant’s burden to demonstrate its right of setoff by affirmatively and adequately alleging such a claim in the pleadings. Practice Book § 168; Peters Production, Inc. v. Dawson, 182 Conn. 526, 528, 438 A.2d 747 (1980).” Petti v. Balance Rock Associates, 12 Conn. App. 353, 362, 530 A.2d 1083 (1987).

The defendant did not affirmatively allege the existence of any debt due and owing him from the plaintiff. As the trial court noted in its oral decision, the defendant was not making a specific claim for commissions owed; the defendant’s contention was rather that the commissions he was due “should have been applied to the note and this note has been fully paid.” The defendant’s defense of payment, and his claim as to the method of payment on the note, was not a defense of setoff.

A defense of payment, even though nonpayment is alleged by the plaintiff, must be specially pleaded. Practice Book § 164. To the extent that the defendant’s claim of payment was a defense, it properly should have been pleaded as such. Although the defendant did not specially plead this defense, however, evidence relating to the method of payment on the note was admitted without objection by the plaintiff. Not only did the plaintiff fail to object to the admission of such evidence, which included his own business records, but the trial record reveals that it was the plaintiff who initially introduced evidence that the method of payment of the mortgage note was by crediting earned commissions towards the defendant’s debt. Any defect in the pleading is therefore deemed to have been waived. Lake Williams Beach Assn. v. Gilman Bros. Co., 197 Conn. 134, 140-41, 496 A.2d 182 (1985); Damora v. Christ-Janer, 184 Conn. 109, 112, 441 A.2d 61 (1981).

After consideration of the testimony of both parties to this action, as well as a review of the documentary evidence submitted, the court found that the plaintiff had not proven his case. “ ‘ “Our review of the trial court’s factual findings is limited solely to the determination of whether they are supported by the evidence or whether, in light of the evidence and pleadings in the whole record, they are clearly erroneous. Practice Book § 4061. . . . The function of an appellate court is to review, and not retry, the proceedings of the trial court.” . . . Petti v. Balance Rock Associates, [ supra, 357].’ Licari v. Blackwelder, 14 Conn. App. 46, 51, 539 A.2d 609 (1988).” (Citations omitted.) Lembo v. Schlesinger, 15 Conn. App. 150, 153-54, 543 A.2d 780 (1988). We review the trial court’s factual findings to ensure that they could have been found “ ‘legally, logically and reasonably.’ . . . Licari v. Blackwelder, supra, 52.” (Citations omitted.) Lembo v. Schlesinger, supra, 154. Our review of the record discloses ample support for the court’s findings.

There is no error.

In this opinion the other judges concurred.

       Practice Book § 236 provides that in any action to foreclose a mortgage, as well as in other specified cases, in which an attorney appears for the defendant, the plaintiff may at any time require such attorney to present to the court, to become a part of the file, “a writing signed by kirn stating whether he has reason to believe and does believe that there exists a bona fide defense to the plaintiffs action and whether such defense will be made, together with a general statement of the nature or substance of such defense.” (Emphasis added.) We note that the disclosure of defense filed in this case was not presented and signed by the attorney for the defendant and was, therefore, not in compliance with this procedural rule. The purpose of requiring that counsel certify to the existence of a “bona fide defense” to a foreclosure action, and to the other actions specified in the rule, where defenses are limited in number and scope, is self-evident.


author: Stoughton, J.

text:
    In re Clifton B. et al.

    (6392)
    Bieluch, Stoughton and Norcott, Js.
    Argued April 19—
    decision released August 2, 1988

      Eban Burns, for the appellants (respondents).

      Judith Merrill Earl, assistant attorney general, with whom, on the brief, were Joseph I. Lieberman, attorney general, Robert W. Garvey, assistant attorney general, and Wendy Kemp, law student intern, for the appellee (commissioner of children and youth services).

      Phillip Block, for the minor children.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Stoughton, J.

The respondent parents appeal from the denial of their purported “petition for new trial” and from the subsequent denial of their motion for a stay of execution of the decision of the trial court and for rights to visit their two minor children, pending their appeal. No motion for review of the denial of this motion was filed. We find error in the form of the judgment.

On September 3, 1986, the department of children and youth services (DCYS) filed petitions seeking to terminate the rights of Gloria F. and Clifton B., Sr., in their two children, Clifton B., Jr., and Keona, pursuant to General Statutes § 17-43a. After a hearing attended by Gloria F., but not by Clifton B., Sr., the trial court found proven by clear and convincing evidence two of the pleaded grounds for terminating the rights of both parents. It found that, as parents of children who had been found by the Superior Court to have been uncared for in a prior proceeding, they had each failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the children, either parent could assume a responsible position in the life of either child. It also found that, whatever the relationship between Clifton B., Sr., and the children and between Gloria F. and the children, it did not rise to the level of a parent-child relationship. The trial court considered the six factors enumerated in General Statutes § 17-43a (d) and found it to be, by clear and convincing evidence, in the best interest of both children that parental rights be terminated so that the children might be placed in the permanent security of adoptive homes without waiting longer than the three years they had already been in foster care. By its judgment rendered on May 6, 1987, the trial court terminated the parental rights of Gloria F. and Clifton B., Sr., in and to their children, Clifton B., Jr., and Keona B.

On July 16, 1987, the respondents filed what they called a petition for new trial pursuant to General Statutes § 52-270, alleging as grounds (1) newly discovered evidence, (2) want of actual notice on the part of Clifton B., Sr., and (3) mistake. No appeal was taken from the judgment of May 6, 1987. The respondents claimed that a new trial was required (1) because the feelings of Clifton B., Sr., for his children came to light only after he realized that his parental rights had been terminated, (2) because Clifton B., Sr., was served by publication, not by personal service, and there was no evidence that he had actual notice of the time, place and nature of the termination hearings, and (3) because the respondents were not aware that the hearings could result in the total loss of their parental rights.

The parties have not addressed in their briefs the fact that the purported petition for a new trial was not instituted as a separate civil action. The trial ended on May 6,1987, and the purported petition for a new trial was filed on July 16, 1987, within the confines of the original proceeding for termination of parental rights, and not as a separate action. A petition for a new trial is properly instituted by a writ and complaint served on the adverse party; although it is collateral to the action in which the new trial is sought, it is by its nature a distinct and separate proceeding. State v. Asherman, 180 Conn. 141, 144, 429 A.2d 810 (1980). The respondents thus deprived the trial court of subject matter jurisdiction, and the court should have dismissed the petition. See State v. Servello, 14 Conn. App. 88, 101-102, 540 A.2d 378 (1988).

There is error in the form of the judgment, the order denying the petition for a new trial is set aside and the case remanded with direction to dismiss that petition.

In this opinion the other judges concurred.

       Practice Book § 4049 provides in pertinent part: “The sole remedy of any party desiring the supreme court to review an order concerning a stay of execution shall be by motion for review under Sec. 4053. ...” Practice Book § 4053 provides in pertinent part: “A motion to review an order concerning a stay of execution must be filed within five days from the issuance of notice of the order. ...”
      The petitioners did not file a motion for review of the denial of their “Motion For Stay Of Execution, And Allowance of Visitation, Pending Appeal.” The denial of the petitioner’s motion may be considered only on a motion for review, and we do not consider it in this appeal.

       “[General Statutes] Sec. 52-270. causes for which new trials may be granted, (a) The superior court may grant a new trial of any action that may come before it, for mispleading, the discovery of new evidence or want of actual notice of the action to any defendant or of a reasonable opportunity to appear and defend, when a just defense in whole or part existed, or the want of actual notice to any plaintiff of the entry of a non-suit for failure to appear at trial or dismissal for failure to prosecute with reasonable diligence, or for other reasonable cause, according to the usual rules in such cases. The judges of the superior court may in addition provide by rule for the granting of new trials upon prompt request in cases where the parties or their counsel have not adequately protected their rights' during the original trial of an action.”


author: Norcott, J.

text:
    Edward Somma et al. v. Jerome B. Gracey et al.
    (5120)
    Dupont, C. J., Daly and Norcott, Js.
    Argued November 17, 1987
    decision released August 2, 1988

      PaulE. Pollock, for the appellants-appellees (defendants).

      Richard A. Fuchs, for the appellees-appellants (plaintiffs).
   Norcott, J.

The defendants appeal from the judgment rendered on a jury verdict in favor of the plaintiffs in an action for legal malpractice. The defendants claim that the trial court erred (1) in submitting certain of the claims of negligence to the jury, and (2) in denying the defendants’ motion for judgment notwithstanding the verdict. In their cross appeal, the plaintiffs claim that the trial court erred (1) in instructing the jury that they could reduce the amount of the damage award to the plaintiffs if they found the plaintiffs to be comparatively negligent, and (2) in allowing the jury to reduce the amount of the damage award to Raymond Somma in the absence of any evidence of an agency relationship between Raymond Somma and Edward Somma. We find no error in either the appeal or the cross appeal.

This case involves the sale of a family business. In 1941, the plaintiffs’ father opened a small tool shop in Waterbury. The plaintiff Edward Somma began working at the tool shop when it opened. At the time, he was fourteen years of age. Edward Somma continued to work at the shop until 1944 when he went away to college. After spending some time in the Navy and finishing college, Edward went back to work at the family business in 1950. In 1952, Edward was joined in the family business by his brother, the plaintiff Raymond Somma.

The two brothers continued to work at the tool shop as employees until 1960 when their father died. Upon the father’s death, Edward Somma became president of the company and Raymond Somma became vice-president. At this time, the company employed approximately twenty people. In 1963, the brothers sold the company. The brothers were represented in the sale by the law firm of Reid and Riege. The Sommas first became acquainted with the firm in 1952, when they had consulted it about some estate matters.

In the years that followed the sale of the business, Edward Somma worked as an estate planner for an insurance company. In 1967, the plaintiffs opened a sign making company. When the company proved to be unprofitable, the plaintiffs dissolved the company. The plaintiffs were represented in the dissolution action by the law firm of Reid and Riege.

The plaintiffs then purchased another small company located in Waterbury. The plaintiffs were represented in this action by the law firm of Reid and Riege, particularly, Jerome Gracey. Thereafter, Edward Somma, acting without representation, sold his interest in this company, and he, along with his brother Raymond, repurchased the family business. The company’s name had been changed to Grodel, Inc.

In 1978, the plaintiffs were approached about the sale of Grodel, Inc. At that time, the plaintiffs owned 90 percent of the shares in the company, the other 10 percent having been purchased by other people. Following some preliminary talks with the prospective purchasers, the plaintiffs agreed to the sale. After receiving a letter of intent from the prospective purchasers, Edward Somma engaged the services of the defendants, Reid and Riege, P.C., and particularly Jerome Gracey, to represent the plaintiffs in the sale of the company.

After Edward Somma had consulted with Gracey on several occasions and after Gracey had taken some action on the matter, the sale was consummated on October 4, 1978. The terms of the sale were that Grodel, Inc., would be sold for a price of $2,182,000. This amount was to be paid over a period of years, with $109,022.72 to be paid at closing, $1,491,008.88 to be paid by a series of promissory notes, and $582,000 to be paid to Edward Somma pursuant to a consulting contract. As security for this sale, the purchasers pledged the stock they received in Grodel, Inc. Further, the promissory notes were guaranteed by an entity known as THFIT, Inc., a trust of the purchaser.

After the closing, the plaintiffs received the first payment due on the promissory notes, but the buyers thereafter defaulted. The plaintiffs, however, did not get their stock back as they believed they would, the company went into bankruptcy, and the plaintiffs suffered a financial loss. Within one year, the buyers of the company had misappropriated over $1,000,000 from the assets of the company. The plaintiffs thereafter instituted the underlying action for malpractice against the defendants.

I

The defendants’ first claim is that the trial court erred in submitting the following issues to the jury: (1) whether the defendants were negligent in failing to conduct, or advising the plaintiffs to conduct, an adequate investigation of the buyers; (2) whether the defendants were negligent in failing to conduct an audit or to request sufficient financial information about the buyers and their guarantees; and (3) whether the defendants were negligent in failing to advise the plaintiffs not to accept nonnegotiable promissory notes. We disagree.

The defendants’ claim is one of evidentiary sufficiency. “It is established law that it is error for a court to submit to the jury an issue which is wholly unsupported by the evidence. State v. Rose, 169 Conn. 683, 687, 363 A.2d 1077 [(1975)].” Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979). In determining whether the evidence is sufficient to support the submission of an issue to the jury, we must review the evidence produced by the plaintiff in the light most favorable to him. Hoyt v. Connecticut Company, 107 Conn. 160, 161, 139 A.2d 647 (1927). In a legal malpractice action, the plaintiff must produce expert testimony (1) that a breach of the professional standard of care has occurred, and (2) that the breach was the proximate cause of the injuries suffered by the plaintiff. Pearl v. Nelson, 13 Conn. App. 170, 173, 534 A.2d 1257 (1988); Campbell v. Pommier, 5 Conn. App. 29, 32, 496 A.2d 975 (1985). We find that the plaintiffs produced sufficient expert testimony to have these issues submitted to the jury.

The plaintiffs produced two witnesses who were qualified as experts in the field of business and corporate law. Each of the expert witnesses testified as to a lawyer’s standard of care in a business purchase situation. Each of the witnesses also testified that the defendants had breached that standard of care, and that the defendants’ breach was the proximate cause of the losses incurred by the plaintiffs. One of the expert witnesses specifically testified that the defendants had been negligent in allowing the security note to be nonnegotiable and in failing to conduct or failing to instruct the plaintiffs to conduct an investigation of the prospective purchasers. While this evidence was far from overwhelming on the issues of negligence in question, it was sufficient to support the submission of those issues to the jury. As we have noted before, “[a] party has the same right to submit a weak case as he has to submit a strong one . . . .” Strickland v. Vescovi, 3 Conn. App. 10, 16, 484 A.2d 460 (1984); see also Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 548, 447 A.2d 406 (1982).

II

The defendants’ second claim is that the trial court erred in failing to grant their motion for judgment notwithstanding the verdict. Specifically, the defendants contend that their motions should have been granted because the actions of the purchasers constituted a superseding, intervening cause which insulated them from liability. We disagree.

Our review of the trial court’s denial of the defendants’ motion for judgment notwithstanding the verdict is limited. “ ‘We must consider the evidence, including reasonable inferences which may be drawn therefrom, in the light most favorable to the parties who were successful at trial; Bleich v. Ortiz, 196 Conn. 498, 501, 493 A.2d 236 (1985); giving particular weight to the “concurrence of the judgments of the judge and the jury, who saw the witnesses and heard the testimony . . . . ” ’ Bound Brook Assn. v. Norwalk, 198 Conn. 660, 667, 504 A.2d 1047, cert. denied, 479 U.S. 819, 107 S. Ct. 81, 93 L. Ed. 2d 36 (1986), quoting Chanoskyv. City Building Supply Co., 152 Conn. 642, 643, 211 A.2d 141 (1965). The defendants] can prevail on this claim only if we find that the jury could not reasonably and legally have reached its conclusion. Bound Brook Assn. v. Norwalk, supra.” Aksomitas v. Aksomitas, 205 Conn. 93, 100, 529 A.2d 1314 (1987). In this case, the defendants claim that the actions of the buyers were a superseding cause as a matter of law and that the jury could not reasonably have concluded as it did.

The Restatement of Torts provides that “[t]he act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime . . . .” 2 Restatement (Second) Torts, § 448. The Restatement further provides, however, that the criminal acts of a third party will not constitute a superseding cause if “the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.” Id.

In this case, it is clear that the actions of the buyers were criminal in nature. It is also clear, however, that the defendants were aware that the plaintiffs, by entering into this contract for sale, might be subject to exactly the type of thievery that occurred. Attorney Gracey testified that he felt that the security offered by the buyers was insufficient to protect the plaintiffs’ interests. He further testified that one of the dangers of having insufficient security was that the plaintiffs would lose a great deal of money if the buyers were thieves. Accordingly, we find that the actions of the buyers did not constitute a superseding cause as a matter of law and that the trial court did not err in denying the defendants’ motion for judgment notwithstanding the verdict.

Ill

The plaintiffs’ first claim on cross appeal is that the trial court erred in instructing the jury on the defense of comparative negligence. Specifically, the plaintiffs claim that there was insufficient evidence to support the submission of this defense to the jury. Before we can rule on whether the evidence was sufficient, we must first resolve what appears to be an issue of first impression in this state; whether the defense of comparative negligence may be properly pleaded in an action for legal malpractice.

Other jurisdictions which have considered this issue have either directly or implicitly held that the defense of comparative or contributory negligence is available in an action for legal malpractice. Cicorelli v. Capobianco, 89 App. Div. 2d 842, 453 N.Y.S.2d 21 (1982), aff'd, 59 N.Y.2d 626, 449 N.E.2d 1273, 463 N.Y.S.2d 195 (1983); see Theobald v. Byers, 193 Cal. App. 2d 147, 13 Cal. Rptr. 864 (1961); R. Mallen & V. Levit, Legal Malpractice (2d Ed.) § 351. In so holding, the courts have recognized that the use of this defense has long been sanctioned in medical malpractice actions. See Cicorelli v. Capobianca, supra, 22, citing Dunn v. Catholic Med. Center of Brooklyn & Queens, 55 App. Div. 2d 597, 389 N.Y.S.2d 123 (1976). The courts have noted that there is nothing in the nature of a legal malpractice action which would preclude the use of this defense. Hansen v. Wightman, 14 Wash. App. 78, 538 P.2d 1238 (1975); see also annot., 45 A.L.R.2d 5, 17, 18.

We agree with the analysis of the other jurisdictions. In situations where the claim of malpractice sounds in negligence; see Shuster v. Buckley, 5 Conn. App. 473, 478, 500 A.2d 240 (1985); the defense of comparative negligence should be made available. Our own statute dealing with comparative negligence, General Statutes § 52-572h (b), provides that in causes of action based on negligence “[a]ny economic or noneconomic damages allowed shall be diminished in proportion of the percentage of negligence attributable to the person recovering . . . .” We see no basis for distinguishing between actions for legal malpractice and other claims sounding in negligence.

We must now determine whether there was sufficient evidence in this particular case to support the submission of the defense of comparative negligence to the jury. We find that there was.

In their complaint, the plaintiffs alleged that the defendants were negligent in several respects. Specifically, the plaintiffs alleged (1) that the defendants failed to conduct an adequate investigation of the buyers, and (2) that the defendants failed to inform the plaintiffs that they should not have gone through with the deal because there was inadequate security. At trial, the plaintiffs produced expert testimony that, indeed, the defendants had been negligent in those respects.

The defendants produced evidence, however, that they had not agreed to conduct an investigation of the buyers. Gracey testified that it was the plaintiffs’ responsibility to conduct the investigation of the buyers. Gracey further testified that any obligations he might have had in this area were satisfied when he informed the plaintiffs that if he were in their position he would do a more thorough check on the buyers.

The evidence produced by the defendants raised questions about the scope of the attorney-client relationship. An attorney-client relationship is established when the advice and assistance of the attorney is sought and received in matters pertinent to his profession. 7 Am. Jur. 2d, Attorneys at Law § 118. Once the relationship is established, the attorney “is bound to discharge his duties to his client with the strictest fidelity, to observe the highest and utmost good faith towards him, and to inform his client promptly of any known information important to him.” Id., § 120; Gay v. Heller, 252 F.2d 313 (5th Cir. 1958). It is axiomatic, however, that the duty of the attorney to act does not extend to the business of the client in general. Erickson v. Civic Plaza Nat. Bank, 422 S.W.2d 373 (1967). The obligation of the attorney is to provide the service for which he was hired. 7 Am. Jur. 2d, Attorneys at Law § 129.

In this case, the defendants testified that they were not engaged to conduct an investigation of the buyers. Although the plaintiffs disputed the extent of the representation, there was sufficient evidence to present to the jury the question of what the attorneys’ obligations were. R. Mallen & V. Levit, supra, § 659 (the scope of the attorney’s duty is a question of fact for the jury to determine). If the attorneys’ obligations did not include conducting an investigation of the buyers, then the attorneys could not have been negligent in that respect. The plaintiffs, then, would have been responsible for conducting the investigation, and it would have been their negligence in conducting that investigation which would have been partly responsible for the losses they incurred. At the same time, the jury could reasonably have found that the defendants were negligent in not telling the plaintiffs not to go through with the deal without more security. Accordingly, this is a situation in which both parties could have been found negligent in some respect and, therefore, the court did not err in instructing the jury on comparative negligence.

IV

The final claim of error relates solely to the plaintiff Raymond Somma. Raymond Somma claims that because the defendants did not allege the existence of an agency relationship between Edward and himself and because he was not involved in the hiring of the defendants, he could not have been held to have been comparatively negligent.

We find, however, that the issue of agency is not pertinent to this case. In their special defense, the defendants allege that both plaintiffs were negligent in failing to conduct an adequate investigation of the buyer, and it was on this theory that the case was tried to the jury. The court instructed the jury in accordance with the defendants’ allegations and the jury returned a general verdict finding the plaintiffs comparatively negligent. Accordingly, we find that the defendants had no obligation to plead the existence of an agency. See Practice Book § 109.

There is no error.

In this opinion the other judges concurred.


author: O’Connell, J.

text:
    Marian Misiurka v. Maple Hill Farms, Inc., et al.
    (5616)
    Spallone, O’Connell and Norcott, Js.
    Argued February 3—
    decision released August 2, 1988

      Zigniew S. Rozbicki, with whom was Albert Vasco, for the appellant (plaintiff).

      Scott Wilson Williams, for the appellee (intervening plaintiff).

      Thomas P. Barrett, for the appellees (defendants).
   O’Connell, J.

The plaintiff appeals from the trial court’s granting of the intervening plaintiff’s motion for apportionment of a judgment. The plaintiff’s employer intervened in the plaintiff’s personal injury action in order to recover monies it paid the plaintiff under the Workers’ Compensation Act, General Statutes §§ 31-291 through 31-355a. The plaintiff claims the trial court erred (1) in denying the plaintiff’s motion to dismiss the intervening complaint as untimely filed, (2) in granting the intervening plaintiff’s motion for apportionment of the stipulated judgment, and (3) in failing to award interest on the judgment from the date the judgment was rendered, rather than from two days after the motion for apportionment was decided. We find error in part.

The following facts are pertinent to the resolution of this appeal. On May 7,1982, the plaintiff was injured in a work related accident for which he received workers’ compensation benefits. On May 5,1984, he brought suit against the defendants alleging that their negligence was the cause of his injuries. On May 7, 1984, the plaintiff gave written notice of this lawsuit to his employer’s workers’ compensation insurance carrier but at no time gave written notice to his employer. The employer’s motion to intervene in the plaintiff’s lawsuit was granted on October 30, 1984. The plaintiff’s motion to dismiss the intervening complaint on the ground that it was filed beyond the thirty day time limit established by General Statutes § 31-293 was denied, and the case went to trial.

On October 3,1986, as a result of an oral stipulation between the plaintiff and the defendants, judgment was rendered in favor of the plaintiff in the amount of $130,000. The intervening plaintiffs counsel was absent from the courtroom, with the court’s permission, when the stipulation was presented to the court and judgment was rendered thereon.

On October 6, 1986, the intervening plaintiff filed a motion to apportion the judgment between itself and the plaintiff, pursuant to General Statutes § 31-293. The court granted the motion on October 27,1986, and apportioned the judgment so that the plaintiff would receive $94,334.40 and the intervening plaintiff, $35,665.60. At the same time, the court ordered that interest commence accrual two days later.

I

The plaintiff first claims that the trial court erred in denying his motion to dismiss the intervening complaint as untimely. He argues that because the intervening complaint was not filed within thirty days of receipt of notice of the suit by the intervening plaintiff’s workers’ compensation insurer, the employer lost his right to intervene pursuant to General Statutes § 31-293.

The precise matter at issue is whether notice to an employer’s insurance carrier constitutes notice to the employer, for purposes of General Statutes § 31-293. We hold that it does not.

We recognize that it is the policy of the courts to liberally construe the workers’ compensation act in order to further its general purpose; Kulis v. Moll, 172 Conn. 104, 109, 374 A.2d 133 (1976); and the general purpose of the act “is to compensate the worker for injuries arising out of and in the course of employment without regard to fault . . . .” Mingachos v. CBS, Inc., 196 Conn. 91, 97, 491 A.2d 368 (1985). Applying strict rules of statutory construction in the present case is compatible with the general purpose of the act, and despite otherwise liberal construction of the act, our Supreme Court has strictly interpreted its notice requirements. See, e.g., Simmons v. Holcomb, 98 Conn. 770, 777,120 A. 510 (1923).

The statute does not provide that notice may be served on the employer’s insurance carrier in lieu of serving notice on an employer. “ ‘Where a cause of action has been created by statute, strict compliance with the prescribed procedure has been deemed essential.’ ” Police Department v. Giordano, 3 Conn. App. 450, 452, 488 A.2d 1293 (1985), quoting Norwalk v. Van Dyke, 33 Conn. Sup. 661, 664, 366 A.2d 554 (1976). “[Section 31-293] is plain and unambiguous, leaving no room for construction. Accordingly, we cannot by construction read into this statute a provision . . . not clearly mandated therein. . . . [Section 31-293] must be applied as its words direct.” Lerman v. Levine, 14 Conn. App. 402, 409, 541 A.2d 523 (1988).

Failure to notify an employer of pending litigation pursuant to General Statutes § 31-293 allows an employer to enter the action at any point in the proceedings. See Lakewood Metal Products, Inc. v. Capital Machine & Switch Co., 154 Conn. 708, 710, 226 A.2d 392 (1967). Because, in the present case, the intervening employer was not properly notified of the action against the third party tortfeasor, the trial court properly denied the plaintiffs motion to dismiss the employer’s complaint.

II

The plaintiff next claims the trial court erred in granting the intervening plaintiff’s motion for apportionment. We decline to review this claim, as it was not properly preserved for appellate review. The plaintiff failed to state distinctly the reasons for his objection to the trial court, thereby denying the trial court an opportunity to re-examine its ruling at a time when it could still be modified and any defect cured. We will not promote a “ ‘Kafkaesque academic test’ by which [a trial judge] ‘may be determined on appeal to have failed because of questions never asked of him or issues never clearly presented to him.’ ” Zeller v. Mark, 14 Conn. App. 651, 654 n.4, 542 A.2d 752 (1988), quoting State v. Cosby, 6 Conn. App. 164, 174, 504 A.2d 1071 (1986). The plaintiffs failure to distinctly set forth the reasons for his objection at trial also deprived this court of an adequate record of the grounds for appealing this particular claim of error. See Keating v. Glass Container Corporation, 197 Conn. 428, 431, 497 A.2d 763 (1985).

Ill

The plaintiffs final claim of error is that the trial court erred in ordering interest to begin accrual two days after its decision on the apportionment motion, rather than from the date judgment was rendered. We agree.

General Statutes § 37-3b is dispositive of this claim. It provides in pertinent part that “[f]or a cause of action arising on or after October 1,1981, interest at the rate of ten percent a year, and no more, may be recovered and allowed in any action to recover damages for injury to the person, or to real or personal property, caused by negligence, computed from the date of judgment.” (Emphasis added.) Pursuant to this statute, the trial court was not required to award postjudgment interest, but, upon determining that interest was appropriate, the court had no discretion to start its accrual from any time other than the date of judgment. “ ‘ “It is a cardinal rule of construction that statutes are to be construed so that they carry out the intent of the legislature. This intent is to be ascertained from the language of the statute itself, if the language is plain and unambiguous. Hurlburt v. Lemelin, 155 Conn. 68, 73, 230 A.2d 36 [1967]; Landry v. Personnel Appeal Board, 138 Conn. 445, 447, 86 A.2d 70 [1952]. Where the legislative intent is clear there is no room for statutory construction.” ’ ” Johnson v. Manson, 196 Conn. 309, 314, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986).

There is error in part, the judgment is set aside as to the award of interest and the case is remanded with direction to render judgment in accordance with this opinion.

In this opinion the other judges concurred.

       The pertinent part of General Statutes § 31-293 provides: “If either such employee . . . brings such action against such third person, he shall forthwith notify [his employer] in writing ... of such fact and of the name of the court to which the writ is returnable, and [his employer] may join as a party plaintiff in such action within thirty days after such notification, and, if [his employer] fails to join as a party plaintiff, his right of action against such third person shall abate.” (Emphasis added.)

       The pertinent part of General Statutes § 31-293 provides: “If such employer and employee join as parties plaintiff in such action and any damages are recovered, such damages shall be so apportioned that the claim of the employer, as defined in this section, shall take precedence over that of the injured employee in the proceeds of such recovery, after the deduction of reasonable and necessary expenditures, including attorney’s fees, incurred by the employee in effecting such recovery.” (Emphasis added.)

       See footnote 1, supra.

       The trial court colloquy regarding the objection was as follows:
      “[Plaintiff’s Counsel]: Your Honor, with regard to the comments made by [counsel for the defendant], I agree to hold any amounts in dispute in escrow and there’s no question about that. I’m willing to place those funds in escrow that are disputed but as far as the motion is concerned, the motion isn’t proper for what its worth and I’m objecting to the motion that’s been filed.
      “The Court: Why is it improper?
      “[Plaintiff’s Counsel]: Well, it’s just improper, your Honor.
      “The Court: In what way is it improper?
      “[Plaintiffs Counsel]: Well, it’s a motion for apportionment of settlement.
      “The Court: That’s right.
      “[Plaintiff’s Counsel]: In accordance with 31-293.”
      We note that General Statutes § 31-293 expressly provides for apportionment of third party recoveries for the purpose of reimbursing workers’ compensation payments made by employers.

       This is a change from General Statutes § 52-349 which made interest an automatic incident of a judgment. Section 52-349 was repealed on July 14, 1983.


author: Foti, J.

text:
    Helen A. Spencer v. Zoning Board of Appeals of the Town of Stratford
    (6059)
    Daly, O’Connell and Foti, Js.
    Argued April 14—
    decision released August 2, 1988

      Frank P. Blando, with whom, on the brief, was Carl E. Watt, for the appellant (defendant).

      Gerald T. Weiner, for the appellee (plaintiff).
   Foti, J.

The defendant appeals from the judgment of the Superior Court sustaining the appeal of the plaintiff from a decision of the zoning board of appeals of the town of Stratford (board) denying a petition for two variances from the zoning district’s 7500 square foot area requirement for building lots.

The defendant claims that the court erred (1) in finding that the plaintiff had established an unusual hardship sufficient to warrant the requested variances, (2) in concluding that the board had abused its discretion in denying the variances because it had granted similar variances for other properties, and (3) in concluding that the variances would not adversely affect the comprehensive plan. We find the defendant’s first claim meritorious and, therefore, dispositive of this appeal.

The facts relevant to this appeal are not in dispute. In 1965, the plaintiff purchased the parcel of real property, which is the subject of this appeal, by warranty deed from her predecessor in title. The parcel, which is known as 66 First Avenue, is located in the town of Stratford, and is comprised of two adjacent lots, numbers 399 and 400, and totals an area of 12,500 square feet. At the time the plaintiff purchased the parcel there was, and still exists, a residential building on the parcel situated partly on lot 399 and partly on lot 400. In 1985, the plaintiff entered into an agreement to sell the entire parcel to Richard Romano. The sale was contingent upon the granting of two petitions for variances filed by Romano and signed by the plaintiff. The petitions envisioned the subdivision of the parcel, creating one lot of 6000 square feet with the existing building on it and a second lot comprised of 6500 square feet on which Romano intended to build a second building. Romano and the plaintiff sought variances waiving the 7500 square foot area requirement for each of the proposed lots. The court sustained the plaintiffs appeal from the decision of the board denying these petitions; the defendant brought this appeal from the decision of the court.

The defendant’s principal claim, and the claim that we find dispositive of this appeal, is that the court erred in finding that the plaintiff had established an exceptional or unusual hardship arising out of circumstances or conditions beyond the control of the plaintiff or her predecessor in title.

We note at the outset that “the authority of a zoning board of appeals to grant a variance under General Statutes § 8-6 (3) requires the fulfillment of two conditions: ‘(1) the variance must be shown not to affect substantially the comprehensive zoning plan, and (2) adherence to the strict letter of the zoning ordinance must be shown to cause unusual hardship unnecessary to the carrying out of the general purpose of the zoning plan.’ Smith v. Zoning Board of Appeals, 174 Conn. 323, 326, 387 A.2d 542 (1978).” Grillo v. Zoning Board of Appeals, 206 Conn. 362, 368, 537 A.2d 1030 (1988). If either condition is not fulfilled the zoning authority lacks the power to grant a variance. Nor does the trial court have the authority to order the zoning authority to grant such a variance.

“It is well settled that the hardship must be different in kind from that generally affecting properties in the same zoning district, and must arise from circumstances or conditions beyond the control of the property owner.” Smith v. Zoning Board of Appeals, supra, 327, quoted in Pollard v. Zoning Board of Appeals, 186 Conn. 32, 39, 438 A.2d 1186 (1982). “Where the hardship results from the voluntary act of the property owner, however, the zoning authority lacks the authority to grant a variance.” Able v. Zoning Board of Appeals, 172 Conn. 286, 289, 374 A.2d 227 (1977). A “[s]elf-inflicted or self-created hardship . . . is never considered proper grounds for a variance.” 2 Yokley, Zoning Law & Practice (3d Ed.) § 15-8, p. 159, quoted in Pollard v. Zoning Board of Appeals, supra, 40.

In Able v. Zoning Board of Appeals, supra, the purchaser of a .704 acre lot applied for a variance waiving the one acre area requirement for residential use. In directing judgment for the abutting property owners, our Supreme Court found that it was unnecessary to reach the board’s conclusion that the owner of the lot had suffered an unusual hardship as he had voluntarily assumed any hardship by his purchase of the lot which did not conform to the existing zoning regulations at the time of the purchase. Similarly, in Pollard v. Zoning Board of Appeals, supra, the court found that the zoning authority lacked the authority to grant a variance for a nonconforming lot, even though the nonconformity had resulted from an error committed by a surveyor. The Pollard court concluded that, because the survey had been conducted at the behest of the executrix for the benefit of the petitioners, the petitioners were deemed to have voluntarily assumed any hardship resulting from the failure of the property to conform to the zoning regulations.

In this case the plaintiff purchased the parcel in 1965 with the dwelling situated partly on both lots. There was sufficient notice in the land records at the time she purchased the property to alert her to the town’s square foot area regulations for residential use, and to the fact that her predecessor in title had built the dwelling on the parcel in such a way as to prevent a second dwelling from being built on the property without violating those regulations.

In Able, as in this case, the undersized lot was created by the predecessor in title of the applicant. Here, the applicant had adequate notice that any subdivision of the parcel would result in a lot of insufficient size to conform to the zoning regulations. We conclude that the plaintiff voluntarily assumed any hardship when she purchased the parcel.

The plaintiff argues that the hardship is a consequence of the town’s practice of taxing the parcel as two separate lots but refusing to allow her to use it as such. The facts of this case, however, belie this argument. The plaintiff purchased the parcel more than twenty years ago with the dwelling on it. During this twenty year period the plaintiff has had the enjoyment of a home located on the parcel so that advantage could be taken of both lots. The plaintiff now claims that the board’s refusal to grant a variance works an unusual hardship because the plaintiff must pay tax on both lots without having the right to build a second dwelling on the parcel. The plaintiff’s argument, though characterized as a hardship emanating from the taxation of the double lot, is little more than an argument that the zoning regulations prevent maximum economic utilization of the parcel.

It is undisputed in this case that the minimum area regulations are valid and embody the legitimate expectations of the community. Able v. Zoning Board of Appeals, supra, 291. Thus, the hardship resulting from any financial loss suffered by the applicant, because of the enforcement of the town’s zoning regulations, is not different in kind from that affecting the properties in that same zoning district. Green v. Zoning Board of Appeals, 4 Conn. App. 500, 503, 495 A.2d 290 (1985). “Personal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance.” Garibaldi v. Zoning Board of Appeals, 163 Conn. 235, 239-40, 303 A.2d 743 (1972), quoted in Pollard v. Zoning Board of Appeals, supra, 44. Nor is economic hardship a sufficient justification for granting a variance. Cowles v. Zoning Board of Appeals, 153 Conn. 116, 118, 214 A.2d 361 (1965).

We need not reach the defendant’s other claims of error as our conclusion that the court was without authority to find an exceptional or unusual hardship is dispositive of this appeal.

There is error, the judgment of the Superior Court is set aside and the case is remanded with direction to render judgment dismissing the appeal.

In this opinion the other judges concurred.


author: Dupont, C. J.

text:
    Frank P. Gionfriddo, Administrator (Estate of Kim Marie Gionfriddo), et al. v. Gartenhaus Cafe
    (5477)
    Dupont, C. J., Borden and Foti, Js.
    Argued February 9—
    decision released August 9, 1988

      Edward F. Hennessey, with whom were Kathleen C. Stone and, on the brief, Jennifer Karr Rashin, for the appellants (plaintiffs).

      Philip J. O’Connor and Henry C. Ide, with whom, on the brief, were Stephen M. Riley and Phyllis J. Trowbridge, for the appellee (defendant).
   Dupont, C. J.

This is an action against the defendant, a purveyor of alcoholic beverages, for damages claimed by the administrator of the estate of the decedent, a woman who was killed when her car was struck by a vehicle driven by an intoxicated driver. The driver had been served alcoholic beverages by the defendant.

The decedent was killed when a vehicle driven by Michael Gilliam traversed into the wrong lane of traffic on a highway and collided with the vehicle driven by her. Gilliam admitted that he had been intoxicated at the time of the accident and pleaded guilty to misconduct with a motor vehicle in violation of General Statutes § 53a-57. On the day of the accident, Gilliam arrived at the Gartenhaus Cafe at approximately 6:30 p.m. Gilliam testified that he had “probably ten [or] twelve” alcoholic drinks before leaving the Gartenhaus Cafe between 8:00 p.m. and 8:30 p.m. Gilliam further testified that he did not drink anything after leaving. He recalled driving a leased vehicle for about five to ten miles to a point near the scene of the accident but had no memory of the fatal accident, which occurred sometime between 9:30 p.m. and 9:45 p.m.

The plaintiff alleged four theories of liability in his complaint against the defendant. He claimed liability for the sale of alcohol to an intoxicated person in violation of the dram shop act; General Statutes § 30-102; liability for negligence, liability for creating a public nuisance on the highway, and liability based on wanton and reckless misconduct pursuant to Kowal v. Hofher, 181 Conn. 355, 362, 436 A.2d 1 (1980). The plaintiff has appealed from the judgment rendered in favor of the defendant subsequent to the decision of the trial court, Wright, J., granting the defendant’s motion to strike the negligence and nuisance counts from the plaintiff’s complaint. The plaintiff also appeals from the judgment rendered by the trial court, Corrigan, J., in favor of the defendant after a jury verdict on the dram shop and Kowal counts.

The plaintiff claims that Judge Wright erred (1) in striking the negligence count from the complaint, and (2) in striking the public nuisance count from the complaint. He also claims that Judge Corrigan erred (1) in refusing to charge the jury as requested with respect to the liability of the defendant under the Kowal doctrine, (2) in refusing to correct misconceptions in the defendant’s argument to the jury concerning the meaning of the term “intoxication” as an element of the dram shop act, (3) in recharging the jury on the definition of “intoxication,” and (4) in denying the plaintiffs motion to set aside the verdict.

The defendant argues that even if the plaintiff’s claims have merit, the judgments of the trial courts should be affirmed because the plaintiff has already obtained a judgment against other third persons and has already received full satisfaction for damages sustained by his decedent as determined by a jury.

Prior to the trial of this action against the defendant, the plaintiff brought a wrongful death action against Michael Gilliam and the lessor of the vehicle driven by Gilliam. The plaintiff was ultimately awarded judgment in the amount of $1,187,763, which judgment was satisfied in full by the defendants to that action. See Gionfriddo v. Avis Rent A Car, 192 Conn. 280, 472 A.2d 306 (1984) (Gionfriddo I). The present wrongful death action involves the same injuries sustained by the same decedent. By way of a motion for summary judgment and a motion in limine, the defendant in this case requested the trial court to bar the action on the ground that an injured party is entitled to only one satisfaction of judgment for a single harm. The trial court, citing Shut v. Hartford Accident & Indemnity Co., 142 Conn. 388, 114 A.2d 681 (1955), held that whether a party, who may be responsible for the same harm, is discharged is a question of intention of the parties, and refused to bar the present action on the ground that the plaintiff did not intend to release the defendant from any legal responsibility for the harm it might be found to have caused. The plaintiff claims that the Shut case applies to this case.

“[0]rdinarily the payment of a judgment against one of several persons who are jointly and severally liable for a single tort constitutes a complete satisfaction of the wrong and discharges the other from all further liability . . . .” Shut v. Hartford Accident & Indemnity Co., supra, 397, citing Ayer v. Ashmead, 31 Conn. 447, 452, 83 A.D. 154 (1863); see also Burkhardt v. Armour & Co., 115 Conn. 249, 161 A. 385 (1932); cf. Vincent v. McNamara, 70 Conn. 332, 39 A. 444 (1898); Atwater v. Tupper, 45 Conn. 144, 148 (1877) (in an action in trover, a satisfied judgment by one of several tortfeasors bars an action of trover against another); Sheldon v. Kibbe, 3 Conn. 214 (1819). At common law, no contribution exists between and among joint tortfeasors, and a plaintiff may elect to satisfy his damages against any culpable defendant. Fox v. Fox, 168 Conn. 592, 595, 362 A.2d 854 (1975); Rode v. Adley Express Co., 130 Conn. 274, 33 A.2d 329 (1943).

The rules regarding joint and several liability apply in this case if we can conclude that (1) the defendant purveyor of alcoholic beverages and the intoxicated driver, who was a defendant in the first action, are joint tortfeasors, (2) the judgment which was satisfied involved damages for the exact same injuries as involved in the present action, and (3) the determination by the factfinder on the issue of damages in the first action is entitled to govern the amount of damages involved in the present action under the doctrine of collateral estoppel. We conclude that all three of these conditions are satisfied in this case.

I

Joint Tortfeasors

Joint tortfeasors are “two or more persons who are liable to the same person for the same harm. It is not necessary that they act in concert or in pursuance of a common design, nor is it necessary that they be joined as defendants.” 2 Restatement (Second), Torts § 886A, p. 338, Comment b. The rules regarding joint tortfeasors are applicable'“to all torts, including not only negligence but also misrepresentation, defamation, injurious falsehood, nuisance or any other basis of tort liability.” Id. In Zucker v. Vogt, 200 F. Sup. 340, 344 (D. Conn. 1961), aff'd, 329 F.2d 426 (2d Cir. 1964), the court concluded that under Connecticut law the purveyor of alcohol and the intoxicated driver were joint tortfeasors. We agree with that conclusion on the basis that the independent acts of each, namely, the sale of an alcoholic beverage to an already intoxicated person and the voluntary consumption of alcohol to the point of intoxication prior to the operation of a motor vehicle, combine or coalesce to produce the same harm, in this case the death of the decedent. See Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 354-55, 493 A.2d 184 (1985) (purveyor of intoxicating liquors and intoxicated driver assumed to be joint tortfeasors); Laznovsky v. Furdanowicz, 22 Conn. Sup. 297, 300-301, 170 A.2d 734 (1961).

II

Just Damages

Having concluded that the defendant in this case is a joint tortfeasor, we must decide whether the rule of joint and several liability is applicable to all of the causes of action involved here. We conclude that it is applicable.

The principle of joint and several liability among joint tortfeasors is applicable not only in all tort theories of liability; 2 Restatement (Second), Torts § 886A; but is equally applicable to actions in trespass, contracts, ejectment, trover, and malicious prosecution. Sheldon v. Kibbe, supra, 222-23. Accordingly, this principle governs the plaintiffs claims with respect to negligence, wanton and reckless misconduct, and public nuisance.

We further conclude that this principle applies to the plaintiff’s dram shop action against the defendant. The dram shop act imposes a “tort liability” not a penal liability. Sanders v. Officers Club of Connecticut, Inc., supra, 348. Although it is designed to aid in the enforcement of state liquor laws as well as to protect the public, the main objective of the statute is to afford compensation for injuries to an individual. “While it may be said that in one sense the statute is penal, nevertheless it is primarily remedial because it gives a remedy enforceable by an individual in a civil action and allows the recovery of damages in an amount commensurate with the injuries suffered.” Pierce v. Albanese, 144 Conn. 241, 249-50, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S. Ct. 36, 2 L. Ed. 2d 21 (1957). This interpretation follows from the explicit limitation of General Statutes § 30-102 that damages properly recoverable constitute “just damages” not in excess of $20,000. “Just damages” means simply compensatory rather than exemplary or punitive damages. The damages involved in the present action are precisely those which were recovered in the prior action, namely, compensatory damages for the death of the decedent.

To allow the plaintiff to recover damages in the present action, then, would result in double damages, which would be contrary to sound principles of law and public policy. In justification of his bringing the second action, the plaintiff points to the suggestion by the court in Pierce v. Albanese, supra, 261, that the liability action against the purveyor of alcohol and the tort action against the operator of the motor vehicle should be tried separately. The reason that court gave in support of separate actions was that separate theories of liability were involved. This reason is no longer viable in light of the fact that since Pierce, common law tort actions against a server of alcohol have been recognized in Kowal and in Ely, supra. A server of alcohol and an operator of a motor vehicle have been joined in the same trial as joint tortfeasors. See, e.g., Ely v. Murphy, supra; Laznovsky v. Furdanowicz, supra. If a plaintiff chooses, as a tactical maneuver, to institute several actions, there can still be only one recovery for the harm incurred. If a plaintiff is awarded two or more judgments, he must then elect which judgment to satisfy. If one of the judgments is fully satisfied, then he is barred from bringing further action against the other joint tortfeasors. If one tortfeasor makes payment that partially satisfies a judgment in the first action, then that amount is credited against any liability found to exist in the second action against the other tortfeasors and operates as payment pro tanto. 2 Restatement (Second), Torts § 885(3); Laznovsky v. Furdanowicz, supra, 301.

III

Defensive Collateral Estoppel

In this case, the prior judgment rendered in Gionfriddo I, in the amount of $1,187,763 for compensatory damages as determined by a jury, has been satisfied in full by the defendants in that action. We conclude that the amount of damages awarded in Gionfriddo I resolved the issue of damages in the present case. As a result, once we have credited the amount paid by the other joint tortfeasors against the amount representing fair and just damages for the death of the decedent, no damages are owed by the defendant in this case and it is therefore discharged from all further liability.

“The effect of a judgment for or against one of several tortfeasors upon claims against others who were or may have been liable for the same harm or with reference to the same subject matter is determined by the principles of res judicata.” 2 Restatement (Second), Torts § 884. The rules of discharge and credit of payments pro tanto, pertaining to other joint tortfeasors upon the satisfaction of a judgment by one of several tortfeasors, involve the application of the principles relevant to claim preclusion and issue preclusion.

The doctrines of res judicata and collateral estoppel protect the finality of judicial determinations, conserve the time of the court, and prevent wasteful relitigation. Res judicata or claim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits. Collateral estoppel, or issue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit. This case addresses the question of whether collateral estoppel applies to the issue of damages determined by the jury in Gionfriddo I. The trial court agreed with the plaintiff that the doctrine of collateral estoppel is only applicable where mutuality of parties is present. We disagree.

For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment. State v. Ellis, 197 Conn. 436, 463, 497 A.2d 974 (1985); see also Restatement (Second), Judgments § 27.

These conditions are satisfied in this case. Gionfriddo I and the present action were both brought under the wrongful death statute, General Statutes § 52-555. That statute provides that the administrator of the decedent's estate may recover “just damages from the party legally at fault,” as “measured by the value to the decedent of his or her own life.” Foran v. Corangells, 153 Conn. 356, 216 A.2d 638 (1960). The question of what constitutes “just damages” in this case is, therefore, the same damage question presented to the jury in Gionfriddo I. The judgment awarding $1,187,736 to the plaintiff established that the plaintiff in that case, who is also the plaintiff in this case, obtained a final judicial determination of the value of the decedent's damages.

The principles of collateral estoppel always apply where both of the parties in the second action were present in the first action. It has not yet been squarely decided in this state whether the doctrine of collateral estoppel applies where only the party against whom estoppel is sought to be used was present in the first action.

In his brief, the plaintiff avers that “Connecticut law defines collateral estoppel as ‘that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim.’ In re Juvenile Appeal, 190 Conn. 310 [316, 460 A.2d 1277] (1983).” (Emphasis added.) The requirement that both of the parties be the same is the requirement of mutuality. The doctrine of mutuality of parties thereby effectively limits the scope of collateral estoppel. Under the mutuality doctrine, neither party may use a prior judgment as an estoppel against the other unless both parties were bound by the judgment. We note that in In re Juvenile Appeal, supra, both parties were before the court in the first suit, and, therefore, the question of mutuality of the parties was not in issue. In Brockett v. Jensen, 154 Conn. 328, 338, 225 A.2d 190 (1966), mutuality was held to be a requirement with respect to the offensive use of collateral estoppel principles. It has not been decided, however, whether the mutuality of parties is required in the defensive use of collateral estoppel principles.

Until recently, a majority of the jurisdictions required the element of mutuality. See discussion in Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326-27, 99 S. Ct. 645, 58 L. Ed. 2d 552 (1979). The element of mutuality was acknowledged in § 82 of the Restatement of Judgments. Connecticut cases also have cited the Restatement of Judgments in mandating mutuality between the parties. See, e.g., Brockett v. Jensen, supra, 338. We note that the Restatement (Second), Judgments § 29, following a general abrogation of the requirement by an increasing number of jurisdictions, does not require mutuality.

We believe for the reasons stated below, that, on the facts of this case, the mutuality requirement in the application of collateral estoppel principles should not apply. We emphasize that this case involves the defensive use of collateral estoppel principles. Defensive use of collateral estoppel occurs when a defendant in a second action seeks to prevent a plaintiff from relitigating an issue that the plaintiff had previously litigated in another action against the same defendant or a different party.

The first major assault on the mutuality doctrine occurred in Bernhard v. Bank of America, 19 Cal. 2d 807, 122 P.2d 892 (1942). Judge Traynor, writing for a unanimous court, stated: “The criteria for determining who may assert a plea of res judicata differ fundamentally from the criteria for determining against whom a plea of res judicata may be asserted. The requirements of due process of law forbid the assertion of a plea of res judicata against a party unless he was bound by the earlier litigation in which the matter was decided. ... He is bound by that litigation only if he has been a party thereto or in privity with the party thereto. . . . There is no compelling reason, however, for requiring that the party asserting the plea of res judicata must have been a party, or in privity with a party, to the earlier litigation.

“No satisfactory rationalization has been advanced for the requirement of mutuality. Just why a party who was not bound by a previous action should be precluded from asserting it as res judicata against a party who was bound by it is difficult to comprehend.” (Footnotes omitted.) Id., 811-12.

Moreover, there are other good reasons for abrogating the mutuality rule. The United States Supreme . Court, in recognizing that Bernhard has had a significant impact on many state and federal decisions espedally where the prior judgment was invoked defensively, acknowledged the validity of Bernhard’s criticism, and reasoned that it is no longer tenable to afford a litigant more than one full and fair opportunity for judicial resolution of the same issue. “In any lawsuit where a defendant, because of the mutuality principle, is forced to present a complete defense on the merits to a claim which the plaintiff has fully litigated and lost in a prior action, there is an arguable misallocation of resources. . . . Permitting repeated litigation of the same issue as long as the supply of unrelated defendants holds out reflects either the aura of the gaming table or ‘a lack of discipline and of disinterestedness on the part of the lower courts, hardly a worthy or wise basis for fashioning rules of procedure.’ ” Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 329, 91 S. Ct. 1434, 28 L. Ed. 2d 788 (1971), quoting Kerotest Mfg. Co. v. C-O-Two Co., 342 U.S. 180, 185, 72 S. Ct. 219, 96 L. Ed. 2d 200 (1952).

We agree with the reasoning behind the abandonment of the mutuality requirement in cases involving defensive collateral estoppel. “In determining the validity of a plea of [collateral estoppel] three questions are pertinent: Was the issue decided in a prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits? Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?” Bernhard v. Bank of America, supra, 813. All of these questions must be affirmatively answered in this case. As a result, the plaintiff is estopped from relitigating the issue of compensatory damages. “Both orderliness and reasonable time saving in judicial administration require that this be so unless some overriding consideration of fairness to a litigant dictates a different result in the circumstances of a particular case.” Bruszewiski v. United, States, 181 F.2d 419, 421 (3d Cir.), cert. denied, 340 U.S. 865, 71 S. Ct. 87, 95 L. Ed. 2d 632 (1950). There are no overriding considerations of fairness to the plaintiff present in the case.

Thus, the damages awarded in Gionfriddo I govern the issue of damages in this case. As we noted earlier, a satisfaction of a judgment rendered against one tortfeasor, although not necessarily discharging the liability of other tortfeasors liable for the same harm; 2 Restatement (Second), Torts §§ 885 and 886; has the effect of diminishing the liability of the other tortfeasors. Id., § 885 (3). The adjudication of damages in Gionfriddo I had the effect of delimiting the plaintiff’s redress in this case. The payment in full of the judgment in Gionfriddo I had the effect of satisfying in full the plaintiff’s claim against the defendant in this case. A plaintiff may be compensated only once for his just damages for the same injury. From this maxim this plaintiff-cannot escape.

We conclude that the satisfaction of the earlier judgment bars the bringing of this action against the defendant and affirm the judgment on this ground. The defendant moved for summary judgment on the ground that the plaintiff was barred from bringing an action against it because the plaintiff had already received full compensation for the same loss. Although it was error for the trial court to deny the defendant’s motion for summary judgment, we affirm the subsequent judgment rendered in favor of the defendant.

There is no error.

In this opinion the other judges concurred.

       General Statutes § 30-102, known as the dram shop act, provides in relevant part: “If any person by himself or his agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured, up to the amount of twenty thousand dollars . . . . ” General Statutes § 30-102 created “a new tort liability which is based upon a specified course of conduct and the consequences of such conduct. Staples v. Lucas, 142 Conn. 452, 456, 115 A.2d 337 (1955). The delict defined by [the dram shop act] is not the sale of liquor to create a condition of intoxication. It is rather the sale of liquor to one who is already intoxicated. No causal relation between the sale and the injury is required. London & Lancashire Indemnity Co. v. Duryea, 143 Conn. 53, 59, 119 A.2d 325 (1955). To recover under the statute, a plaintiff must bring himself squarely within its provisions. Id., 57. In each case, therefore, the trier must decide as a question of fact: whether there was (1) a sale of intoxicating liquor (2) to an intoxicated person (3) who, in consequence of such intoxication, causes injury to the person or property of another.” Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 348-49, 493 A.2d 184 (1985).

       Both Kowal v. Hofher, 181 Conn. 355, 357-58, 436 A.2d 1 (1980) and Boehm v. Kish, 201 Conn. 385, 389, 517 A.2d 624 (1986), reaffirmed the rule that “there is no common law action in negligence against one who furnished, whether by sale or gift, intoxicating liquor to a person who thereby voluntarily became intoxicated and in consequence of his intoxication injured the person or property of himself or of another.” Kowal v. Hofher, supra, 357. “The reason underlying the rule is that the proximate cause of the intoxication was not the sale or furnishing of the liquor but the consumption of it by the purchaser or donee.” Id., 357-58. It was recently stated, however, in Ely v. Murphy, 207 Conn. 88, 93, 540 A.2d 54 (1988), that the “proposition that intoxication results from the voluntary conduct of the person who consumes intoxicating liquor assumes a knowing and intelligent exercise of choice, and for that reason is more applicable to adults than to minors.” The Ely court held that a minor’s “consumption of alcohol does not, as a matter of law, constitute the intervening act necessary to break the chain of proximate causation and does not, as a matter of law, insulate one who provides alcohol to minors from liability for ensuing injury.” Id., 95. Accordingly, the decision in Ely v. Murphy, supra, establishes that a person injured by a driver who had been served alcoholic beverages by another may sue the latter in common law negligence if the driver who was served intoxicating liquor was a minor for the purposes of the minimum legal drinking age in this state. Ely does not discuss whether a cause of action exists for the negligent service of alcohol to an adult, or whether a cause of action exists in nuisance against the server of alcohol to a minor or an adult. At least in cases involving the sale of alcohol to a minor, a person who is liable under the dram shop act may also be liable in common law negligence. The difference between the two causes of action is that liability under common law negligence requires a causal connection between the serving of the alcohol and the injury, whereas liability under the dram shop act does not. See footnote 1, supra. In common law negligence actions, recovery for compensatory damages is commensurate with the harm incurred and is theoretically unlimited in amount, whereas liability under the dram shop act is limited to an amount not greater than $20,000.

       Practice Book § 4013 (a) (1) provides that an appellee may file a timely preliminary statement of issues to “present for review alternate grounds upon which the judgment may be affirmed,” or to “present for review adverse rulings or decisions of the court which should be considered on appeal in the event the appellant is awarded a new trial . . . .”

       The defendant also argues that the judgment on the dram shop count should be affirmed because the defendant is entitled to a credit for the prior satisfaction, which credit would preclude the assessment of dram shop damages in this case. This claim is intimately intertwined with the defendant’s primary claim that the satisfaction of judgment by one or more of several joint tortfeasors bars a subsequent action against any other joint tortfeasor.

       The present case involves the issues of whether defensive collateral estoppel principles and whether the paramount principle of tort law that a plaintiff may be fully compensated only once for his injuries should be employed. Shut v. Hartford Accident & Indemnity Co., 142 Conn. 388, 114 A.2d 681 (1955), in contrast, involved the release of a joint tortfeasor when a judgment has been partially satisfied and the total amount of damages has been established in a prior suit against all of the joint tortfeasors. The question in Shut was whether the plaintiff, by accepting the partial payment from one of the tortfeasors, intended to release the other. The decision in Shut is simply inapposite to this case.

       An overwhelming majority of the states, including Connecticut, has abandoned the common law rule prohibiting contribution among joint tortfeasors either by legislative enactment or judicial adoption, or have substituted joint and several liability with apportioned liability so that there is no need for contribution. See cases collected in 2 Restatement (Second), Torts § 886A, pp. 197-98, reporter’s note. See also General Statutes § 52-572h (limitation of a person’s liability to his proportional share of recoverable damages and the exercise of a right of contribution). General Statutes § 52-572h, allowing for contribution, became effective on October 1, 1986. See Public Acts 1986, No. 86-338, § 17. At the time of the commencement of this case, however, no right of contribution existed among joint tortfeasors.

       The 2 Restatement (Second), Torts § 885 (3) provides: “A payment by any person made in compensation of a claim for a harm for which others are liable as tortfeasors diminishes the claim against the tortfeasors, at least to the extent of the payment made, whether or not the person making the payment is liable to the injured person and whether or not it is so agreed at the time of payment or the payment is made before or after judgment.” This rule applies when, as here, all of the parties are liable for the entire harm. Id., comment a, p. 333. This rule does not apply to joint tortfeasors who are liable only for proportionate shares of a harm. See Reilly v. DiBianco, 6 Conn. App. 556, 507 A.2d 106, cert. denied, 200 Conn. 804, 510 A.2d 192 (1986); Gutowski v. New Britain, 165 Conn. 50, 327 A.2d 552 (1973); see also Public Acts 1986, No. 86-338 § 3 (c).