author: LAVERY, C. J.

text:
    JOSEPH E. CELENTANO ET AL. v. IRA B. GRUDBERG ET AL.
    (AC 22656)
    Lavery, C. J., and Dranginis and Peters, Js.

      Argued December 3, 2002
    officially released April 8, 2003

      David Toro, with whom, on the brief, was John R. Williams, for the appellant (plaintiffs).

      David A. Leff with whom were Trisha Morris Porto and, on the brief, Ira B. Grudberg, for the appellees (defendants).
   Opinion

LAVERY, C. J.

This case concerns the failure of the plaintiffs to present expert testimony in a breach of contract action against their former attorney and his law firm, and the direction of a verdict by the trial court against the plaintiffs for their failure to present such testimony and for their failure to present evidence of damages. The dispositive issue in this appeal is whether the plaintiffs were required to present expert testimony to prove their breach of contract claim. Because we conclude that the plaintiffs’ breach of contract claim required expert testimony to establish the defendants’ standard of care and to assist the jury in determining whether the defendants’ actions complied with that standard, we affirm the judgment of the trial court.

The following facts and procedural history are necessary for the disposition of the plaintiffs’ appeal. This breach of contract claim arose out of an attorney-client relationship that was formed in December, 1987, between the plaintiffs, Joseph E. Celentano and Solid Waste Disposal, Inc. (Solid Waste), and the defendants, Ira B. Grudberg and his law firm, Jacobs, Grudberg, Belt and Dow. Celentano and Joseph Latella (Latella) were principals and owners of Solid Waste, a closely held corporation that operated landfills in West Haven. Latella and his son, Peter Latella, were principals in Latella Carting Company, Inc. (Latella Carting), a company that dumped refuse in the two landfills operated by Solid Waste. In 1985, Celentano and Latella entered into an agreement (1985 agreement) relating to the operation of the landfills.

At some point subsequent to the 1985 agreement, Celentano came to believe that he was being cheated at the landfills. Specifically, he believed that trucks operated by Latella Carting were dumping more refuse in the early mornings, before the opening of the scales, than was allowed under the 1985 agreement. In September, 1987, Celentano consulted with Grudberg regarding the possibility of pursuing a claim against certain individuals and entities with whom he was involved at the landfill, including the Latellas and Latella Carting. In December, 1987, Celentano again met with Grudberg and expressed his desire to proceed with a claim. On December 9, 1987, Grudberg sent a letter to Celentano, confirming their retainer agreement. Pursuant to that agreement, Celentano paid a $10,000 retainer to Grudberg.

The 1985 agreement contained an arbitration provision that provided that any disputes “arising subsequent to the date of [the] Agreement over the operation of Solid Waste or the interpretation of [the] Agreement shall be submitted to private arbitration and the parties agree that the independent arbitrator shall be Joseph Dobrowolski . . . .” Grudberg made a strategic decision to institute an action against individuals who were not parties to the 1985 agreement to gain information through the utilization of discovery procedures. He did that because he wanted to take depositions of certain individuals who might have had pertinent information rather than to “subpoena them in, cold turkey, as part of an arbitration . . . .” Grudberg encountered numerous obstacles and delays in his attempt to obtain depositions of the various individuals. Ultimately, he had to obtain a court order to compel the depositions of certain individuals. In September, 1990, the depositions were completed, and Grudberg withdrew the case. In January, 1991, more than two years after taking the plaintiffs’ case, Grudberg obtained a court order for arbitration. The arbitration was never completed.

In 1998, the plaintiffs filed the present action. In their complaint, the plaintiffs alleged that the defendants had breached their contract by (1) not obtaining a court order to compel arbitration for more than two years after the defendants were retained by the plaintiffs, and (2) never conducting the arbitration hearing and abandoning the plaintiffs’ claims on or after June 29, 1994.

The case was tried to a jury. At the conclusion of the plaintiffs’ case-in-chief, the defendants sought a directed verdict. The court granted the motion and directed the jury to return a verdict in favor of the defendants as a matter of law because it concluded that the plaintiffs had failed (1) to present expert testimony as to “[w]hether [Grudberg’s] conduct in the performance of his duties met the standard of attorneys doing work of this nature or was deficient” and (2) to adduce any evidence of damages. This appeal followed. Additional facts will be set forth as necessary.

Initially, we set forth our standard of review with respect to directed verdicts. “The standards for reviewing a challenge to a directed verdict are well known. Generally, litigants have a constitutional right to have factual issues resolved by the jury. . . . Directed verdicts [therefore] are historically not favored and can be upheld on appeal only when the jury could not have reasonably and legally reached any other conclusion. . . . We review a trial court’s decision to direct a verdict for the defendants] by considering all of the evidence, including reasonable inferences, in the light most favorable to the plaintiff[s]. ... A verdict may be directed where the decisive question is one of law or where the claim is that there is insufficient evidence to sustain a favorable verdict.” (Citations omitted; internal quotation marks omitted.) Vona v. Lerner, 72 Conn. App. 179, 186-87, 804 A.2d 1018 (2002), cert. denied, 262 Conn. 938, 815 A.2d 138 (2003).

On appeal, the plaintiffs claim that the court improperly directed the verdict in favor of the defendants. Specifically, the plaintiffs claim that the court improperly determined that they were required to present expert testimony to prove their breach of contract claim against the defendants. We disagree.

The plaintiffs argue that this is a simple breach of contract claim, not a malpractice claim based on negligence, and, therefore, expert testimony was not required. Alternatively, citing Davis v. Margolis, 215 Conn. 408, 576 A.2d 489 (1990), the plaintiffs argue that even if expert testimony ordinarily would be required in a case such as this, such testimony was not required here because “there [was] present such an obvious and gross want of care and skill that the neglect is clear even to a lay-person.” (Internal quotation marks omitted.) Id., 416 n.6.

The plaintiffs first argue that the court improperly determined that expert testimony was required to prove their breach of contract case. They argue that this is not a case in which they alleged incompetence or failure to meet a standard of care by the defendants, but that, instead, the only issue before the jury was “whether the defendant agreed to do a specific thing in exchange for consideration which was paid and then failed to do it.” Although the plaintiffs’ counsel conceded at oral argument that there was not an express contract between the parties, the plaintiffs, nevertheless, contend that the defendants “agreed, in exchange for a fee, to institute and to pursue to a conclusion a claim by the plaintiffs against certain persons and entities, and that they breached that contract by not pursuing the matter to a conclusion.”

It is well settled that an attorney may be subject to a claim for breach of contract arising from an agreement to perform professional services. See Mac’s Car City, Inc. v. DeNigris, 18 Conn. App. 525, 530, 559 A.2d 712, cert. denied, 212 Conn. 807, 563 A.2d 1356 (1989). In a claim such as this, “the client [usually] has the option to sue for either breach of an implied contract, negligence or both.” 1R. Mallen & J. Smith, Legal Malpractice (5th Ed. 2000) § 8.7, p. 820.

The difficulty with the plaintiffs’ argument is that a breach of contract action against an attorney, on the basis of an implied contract is, essentially, governed by the same principles as a negligence action, and both are predicated on the standard of care applicable to the attorney. See Wong v. Ekberg, 148 N.H. 369, 376, 807 A.2d 1266 (2002); Peters v. Simmons, 87 Wash. 2d 400, 404, 552 P.2d 1053 (1976); 1 R. Mallen & J. Smith, supra, § 8.7, pp. 819-20. Contrary to the plaintiffs’ position, an attorney does not, by agreeing to represent or to provide professional services to a client, impliedly contract to see the client’s claim through to conclusion. To read an attorney-client relationship to contain an implied promise to pursue a claim to conclusion would lead to bizarre and untenable results. There are conceivably many valid reasons why an attorney might decide, after taking a case, to not pursue it to conclusion.

By agreeing to take on the representation of a client, the attorney promises to exercise ordinary skill and care in the representation of the client. 1 R. Mallen & J. Smith, supra, § 8.7, p. 819; see also Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal. 3d 176, 181, 491 P.2d 421, 98 Cal. Rptr. 837 (1971); Harris v. Magri, 39 Mass. App. 349, 352, 656 N.E.2d 585 (1995); Gorski v. Smith, 812 A.2d 683, 703 (Pa. Super. 2002); Peters v. Simmons, supra, 87 Wash. 2d 404. Thus, an attorney, “by accepting employment to give legal advice or to render other legal services, impliedly agrees to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks which they undertake. . . . These principles are equally applicable whether the plaintiffs claim is based on tort or breach of contract.” (Citations omitted; internal quotation marks omitted.) Kirsch v. Duryea, 21 Cal. 3d 303, 578 P.2d 935, 146 Cal. Rptr. 218 (1978); Gorski v. Smith, supra, 703. In the absence of an express promise to see a claim through to conclusion, an attorney will breach the contract only if his performance fails to comply with the applicable standard of care.

To prove their claim, the plaintiffs were required to show that Grudberg’s performance constituted a breach of the applicable standard of care. “If the determination of the standard of care requires knowledge that is beyond the experience of an ordinary fact finder, expert testimony will be required.” Santopietro v. New Haven, 239 Conn. 207, 226, 682 A.2d 106 (1996). “The general rule is that where [an attorney’s] exercise of proper professional skill and care is in issue, expert testimony tending to establish the want of such skill and care is essential to recovery.” Bent v. Green, 39 Conn. Sup. 416, 420, 466 A.2d 322 (App. Sess. 1983). The rationale underlying that rule is that in most cases, the determination of an attorney’s standard of care, which depends on the particular circumstances of the attorney’s representation, is beyond the experience of the average layperson, including members of the jury and perhaps even the presiding judge. See id.; see also Wong v. Ekberg, supra, 148 N.H. 374 (“expert testimony is necessary to inform the jury regarding the skill and care ordinarily exercised by lawyers, a measure not ordinarily within the common knowledge of lay persons”).

“The only exception to this rule is where there is present such an obvious and gross want of care and skill that the neglect [to meet the standard of care] is clear even to a layperson.” Bent v. Green, supra, 39 Conn. Sup. 420; see also Davis v. Margolis, supra, 215 Conn. 416 n.6; Paul v. Gordon, 58 Conn. App. 724, 727, 754 A.2d 851 (2000). Thus, unless the defendants’ performance constituted such an obvious and gross want of care and skill as to fall within the exception to the expert witness requirement, the plaintiffs were required to present expert testimony to establish the proper standard of professional skill and care to which Grudberg was held and to assist the jury in evaluating his performance in light of that standard.

The plaintiffs argue that the exception to the expert witness requirement applies here because Grudberg’s performance constituted “such an obvious and gross want of care and skill that the neglect is clear even to a layperson.” The plaintiffs contend that Grudberg’s “neglect . . . consisted of doing nothing when something was required.” We disagree.

The following additional facts are relevant to our resolution of the plaintiffs’ claim. As previously stated, Grudberg, in his representation of the plaintiffs, was faced with a preexisting contract that contained an arbitration provision naming the arbitrator. He made a strategic decision to institute a separate action against individuals who were not parties to the 1985 agreement in order to pursue discovery. He encountered numerous obstacles and delays, not of his own making, in his attempts to obtain various depositions. After finally completing the depositions, in September, 1990, Grudberg moved forward with attempting to set up the arbitration. The arbitration opponents failed to respond to his demand for arbitration, requiring Grudberg to obtain a court order to compel the arbitration.

Grudberg then spent several months attempting, unsuccessfully, to set an arbitration date with the named arbitrator, Dobrowolski, who, apparently, would not schedule the arbitration unless all the parties were present and represented. Grudberg also communicated with various attorneys in an attempt to determine if the Latellas were represented and to move forward with the arbitration. Gradberg did not, however, seek to remove Dobrowolski as the arbitrator.

Late in 1991, Celentano told Gradberg that he was going to try to work things out with Latella directly. Gradberg ceased pursuit of the arbitration and took no further action to pursue arbitration until March, 1993, when he next heard from Celentano. Beginning in March, 1993, Gradberg again made attempts to get an arbitration date set. In July, 1993, Gradberg received a letter from Celentano, informing him that the “Latellas financial situation is so serious that, I know, for a fact, there are no monies available.” After receiving that letter, Gradberg, essentially, ceased pursuit of the arbitration.

This was not a case in which the defendant, after accepting the representation, did nothing. Rather, considerable evidence was presented at trial regarding the strategies Gradberg employed, the obstacles he encountered, the actions he took and did not take in his representation of the plaintiffs, and his reasons for taking or not taking those actions. Complicated legal and procedural issues were involved. Given the circumstances of Gradberg’s representation and the work that he did on behalf of the plaintiffs, members of a jury would be without the knowledge or ability to determine whether the choices Gradberg made and the actions he took met the standard of an attorney exercising that “degree of care, skill and diligence which other attorneys in the same or similar locality . . . would have exercised in similar circumstances.” Bent v. Green, supra, 39 Conn. Sup. 420. The court was correct when it determined that “[j]ury fact finders are without the training, experience and knowledge of an attorney. Therefore, they require expert testimony to decide whether defendant Gradberg’s abandonment of the claims were reasonable in light of his Ghent’s statement that a recovery would be essentially uncollectible and that the Latellas had nothing. And further, the jury would need the assistance of expert testimony ... as to whether Grudberg’s pursuit of arbitration through attorney Dobrowolski only . . . met the standard [of care]. And finally, whether defendant Grudberg’s reliance on plaintiff Celentano’s pursuit of Latella informally, [which ended up delaying the proceedings to a point where the Latellas lacked funds to pay a judgment against them], was a proper strategic decision.”

This was not a case in which the defendant’s want of care was so gross and obvious that his failure to comply with the standard of care was clear, even to a layperson. See, e.g., Paul v. Gordon, supra, 58 Conn. App. 727. Expert testimony was required to assist the jury in determining whether Grudberg’s performance complied with the requisite standard of care. We conclude that because the plaintiffs failed to present expert testimony on the issue of the standard of care applicable to Grudberg, the court properly directed the jury to return a verdict in favor of the defendants on the plaintiffs’ breach of contract claim.

The judgment is affirmed.

In this opinion the other judges concurred.

       For purposes of this opinion, when we refer to Grudberg, we incorporate Jacobs, Grudberg, Belt and Dow by reference, as Grudberg and his law firm are synonymous for purposes of this appeal.

       At some point subsequent to the 1985 agreement between Celentano and Latella relating to Solid Waste’s operation of two landfills, Joseph Latella assigned his interest in Solid Waste to his son, Peter Latella.

       One of the provisions of the agreement allowed Latella Carting to “deliver and dump at Solid Waste disposal sites no more than seven truckloads of solid waste per day prior to the opening of the scales at 7:00 a.m. each day.”

       According to the letter, the defendants, in addition to the $10,000 retainer, were to receive, on a contingency basis, 15 percent of any sums the defendants recovered on the plaintiffs’ behalf.

       Among those obstacles and delays were other attorneys’ scheduling problems, unrepresented individuals, motions to withdraw and deponents who failed to attend depositions.

       The plaintiffs also claim that the court improperly determined that they had failed to adduce evidence of damages. Because our resolution of the plaintiffs’ first claim is dispositive of this appeal, we need not address the plaintiffs’ second claim.

       We note that the plaintiffs have not alleged that the defendants failed to follow a specific instruction.

       We note that in practice, complying with the standard of care often will mean seeing a client’s claim through to conclusion. There are, however, situations in which an attorney may fail to pursue a claim to conclusion and yet still comply with the standard of care.

       In regard to the plaintiffs’ claim that the defendants breached their contract by not obtaining an order for arbitration nntil more than two years after accepting the representation, a claim that the plaintiffs’ do not appear to pursue on appeal, the court stated, and we agree, that “[ejxpert testimony is necessary to assist the trier of facts in determining whether the conduct of the defendants here in the preparation of the plaintiffs’ claim for arbitration and in the pursuit of the discovery procedure before a court order of arbitration was reasonable in terms of the timeliness of . . . the court order of arbitration. Issues such as delay occasioned by no-shows, other attorneys’ scheduling problems, unrepresented individuals, motions to withdraw, and the like are not circumstances or issues that laypeople know about or are aware of or have the cognizance to understand and appreciate as to what the law and the Practice Book provide, allow for or restrict.”


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    ARTHUR J. ROCQUE, JR., COMMISSIONER OF ENVIRONMENTAL PROTECTION v. SOUND MANUFACTURING, INC., ET AL.
    (AC 22551)
    Lavery, C. J., and Mihalakos and Hennessy, Js.
    Argued October 24, 2002
    officially released April 8, 2003

      James A. Wade, with whom were Richard M. Fil and, on the brief, Craig A. Raabe, for the appellants (named defendant et al.).

      Marjorie Allen Dauster, assistant state’s attorney, with whom were Tamberlyn E. C. Conopask, deputy assistant state’s attorney, and, on the brief, John M. Bailey, former chief state’s attorney, and Joy K. Fausey,
      former deputy assistant state’s attorney, for the appellee (intervenor division of criminal of justice).

      Mark P. Kindall, assistant attorney general, for the appellee (plaintiff).
   Opinion

HENNESSY, J.

The defendants Sound Manufacturing, Inc., and Brian E. Cote appeal from the order of the trial court granting the motions of the intervenor, the state division of criminal justice, to stay discovery and to quash subpoenas in a civil action brought against the defendants by the plaintiff, the commissioner of environmental protection. The plaintiff brought the underlying action for temporary and permanent injunctive relief to require Sound Manufacturing, Inc., Cote, Daniel Malchman and Charles Lavalle to comply with all provisions of Connecticut’s hazardous waste management program, and for the defendants to abate the alleged violations. The plaintiff also sought civil penalties and costs as allowed by statute.

On January 16, 2001, the division of criminal justice filed a motion to intervene and to be joined as a party in the underlying action for the limited purpose of filing a motion to stay discovery in this matter pending resolution of criminal actions against Cote, Malchman and Lavalle, and to quash subpoenas duces tecum directed to inspector Matthew Schroeder of the division of criminal justice and inspector David Stokes of the department of environmental protection seeking access to the files prepared by both investigators. The division of criminal justice sought to intervene pursuant to General Statutes § 52-108 and Practice Book § 9-19 to protect the integrity of the criminal prosecution and the information gathered during the criminal investigation. The defendants objected to the motion to intervene, the motion to stay discovery and the motions to quash the subpoenas duces tecum, arguing that the division of criminal justice is not authorized to intervene in this civil proceeding. The plaintiff supported the motions filed by the division of criminal justice.

On November 28,2001, the court held that the division of criminal justice could intervene in the underlying civil proceedings in the interest of justice to preserve the integrity of the criminal prosecution process. The court noted that the division of criminal justice sought to intervene for the limited purpose of staying discovery only while the criminal matters are pending. The court granted the division of criminal justice’s motion to intervene, to stay discovery and to quash the deposition subpoenas pending the disposition of the criminal prosecutions. The defendants appealed from that decision.

As a threshold matter, this court must determine if there is an appealable final judgment in this case. “The lack of a final judgment is a jurisdictional defect that mandates dismissal.” (Internal quotation marks omitted.) Kobyluck v. Zoning Board of Appeals, 70 Conn. App. 55, 58, 796 A.2d 567 (2002). “[Whenever a court discovers that it has no jurisdiction, it is bound to dismiss the case, without regard to [its] previous rulings.” (Internal quotation marks omitted.) Zoning Commissions. Fairfield Resources Management, Inc., 41 Conn. App. 89, 103, 674 A.2d 1335 (1996).

In State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), our Supreme Court set forth the test for determining when an otherwise interlocutory order or ruling of the Superior Court constitutes an appealable final judgment. “An otherwise interlocutory order is appealable in two circumstances: (1) where the order or action terminates a separate and distinct proceeding, or (2) where the order or action so concludes the rights of the parties that further proceedings cannot affect them.” Id.

The first prong of the Curdo test “requires the order being appealed to be severable from the central cause to which it is related so that the main action can proceed independent of the ancillary proceeding.” (Internal quotation marks omitted.) Douglas-Mellers v. Windsor Ins. Co., 68 Conn. App. 707, 714, 792 A.2d 899 (2002). In the present case, the motions to intervene, to stay discovery and to quash subpoenas were made within the context of the pending civil action. The underlying action has not terminated and the decisions are not severable; therefore, the first prong of the Curcio test has not been met.

The defendants argue that this appeal satisfies the second prong of the Curdo test. “The second test for finality . . . focuses not on the proceedings involved, but on the potential harm to the appellant’s rights. [An interlocutory order] will be deemed final for purposes of appeal only if it involves a claimed right the legal and practical value of which would be destroyed if it were not vindicated before trial. . . . The second prong of Curdo requires, therefore, the [appellants] to prove that the trial court’s order threatens the preservation of a right already secured to them and that that right will be irretrievably lost and the [appellants] irreparably harmed unless they may immediately appeal.” (Internal quotation marks omitted.) Rustici v. Malloy, 60 Conn. App. 47, 54-55, 758 A.2d 424, cert. denied, 254 Conn. 952, 762 A.2d 903 (2000).

The defendants do not argue that they will suffer irreparable harm, but instead focus on the authority of the division of criminal justice to intervene. They contend that the authority of the division of criminal justice is limited almost exclusively to criminal matters under General Statutes § 51-277, and therefore, the division of criminal justice cannot participate in the underlying civil action. The defendants fail to state what right they presently possess that has been so concluded that it cannot be affected by further proceedings. The defendants have no presently existing right to be free of an intervenor in the underlying matter. The court has the statutory authority pursuant to § 52-108 to permit intervention in a pending civil action, if the interests of justice so require. The second prong of the Curdo test has not been satisfied.

The defendants, citing Cassella v. Kleffke, 38 Conn. App. 340, 344, 660 A.2d 378, cert. denied, 235 Conn. 905, 665 A.2d 899 (1995), also argue that a decision may be immediately appealable when it challenges the power of the court to act. They claim that this appeal raises a question that falls within the exception to the final judgment rule that permits appeals when the appellant raises a colorable claim that the court lacked jurisdiction. See Solomon v. Keiser, 212 Conn. 741, 747, 562 A.2d 524 (1989); Connecticut Light & Power Co. v. Costle, 179 Conn. 415, 418, 426 A.2d 1324 (1980). Those cases concern the authority of a trial court to act. In Kim v. Magnotta, 249 Conn. 94, 102-104, 733 A.2d 809 (1999), our Supreme Court explored the recurrent difficulty of distinguishing between two kinds of challenges to a tribunal’s exercise of its statutory authority. On the one hand, a challenge may allege that a tribunal’s action exceeds its statutory authority. Id., 103. Such a challenge raises a jurisdictional claim. On the other hand, a challenge may allege that a tribunal’s action misconstrues its statutory authority. Such a challenge raises a claim of statutory construction that is not jurisdictional. See Amodio v. Amodio, 247 Conn. 724, 727-28, 724 A.2d 1084 (1999).

In the present case, the court has the authority under the provisions of General Statutes § 52-108 and Practice Book § 9-19 to permit intervention in a pending civil action. The defendants are challenging the court’s exercise of its authority. The court clearly has the authority to permit intervention in a civil action in the interests of justice and, therefore, the court had jurisdiction to consider the motion to intervene filed by the division of criminal justice. The issue raised in this case is whether the court properly exercised its power to permit the intervention; that claim does not implicate the subject matter jurisdiction of the court, but rather involves whether the court properly exercised its authority. Consequently, the court’s orders in this case are not immediately appealable.

The orders in the present case regarding the granting of the intervenor’s motions for a stay of discovery and to quash subpoenas duces tecum pending the disposition of the criminal proceedings are temporary orders limiting discovery. In Ruggiero v. Fuessenich, 237 Conn. 339, 347, 676 A.2d 1367 (1996), our Supreme Court stated that a petition for disclosure and release of certain records was, “for all intents and purposes, merely a discovery motion, the denial of which did not cause the plaintiffs to suffer an irretrievable loss of a right or an irreparable harm, and which can be rectified on appeal after a final judgment on the merits of [a civil action] if [the decision] is incorrect.” Id. In the present case, the defendants have not shown that any presently existing right that they possess has been so concluded that further proceedings in the still pending civil action cannot affect them. They have failed to show that they would suffer any irreparable harm if an immediate appeal is not permitted from the interlocutory orders at issue. Under the circumstances of this case, we conclude that the defendants have appealed from interlocutoiy orders that are not immediately appealable final judgments, and we therefore dismiss the appeal for lack of jurisdiction.

The appeal is dismissed.

In this opinion the other judges concurred.

       The other defendants in the underlying action, Daniel Malchman and Charles Lavalle, did not appeal. We therefore refer in this opinion to Sound Manufacturing, Inc., and Cote as the defendants.

       The criminal charges were brought under General Statutes § 22a-131a in September, 1998. Sound Manufacturing, Inc., was not charged criminally.

       The plaintiff previously filed a motion to dismiss this appeal for lack of jurisdiction, arguing that the appeal was taken from interlocutory orders that are not immediately appealable. The defendants opposed the motion to dismiss. This court denied the motion to dismiss on February 5, 2002. We are not bound by our prior denial of the motion to dismiss. The intervenor has raised the jurisdictional claim in its appellee’s brief. After a review of the case after full briefing and hearing, we have concluded that it is necessary to reconsider our jurisdiction. See Governors Grove Condominium Assn., Inc. v. Hill Development Corp., 187 Conn. 509, 511 n.6, 446 A.2d 1082 (1982), overruled on other grounds, Morelli v. Manpower, Inc., 226 Conn. 831, 834, 628 A.2d 1311 (1993); Groesbeck v. Sotire, 1 Conn. App. 66, 67-68, 467 A.2d 1245 (1983).

       General Statutes § 51-277 concerns the powers and duties of the division and provides: “(a) The division shall exercise all powers and duties with respect to the investigation and prosecution of criminal matters conferred upon or required of it by this chapter, or conferred upon or required of state’s attorneys, assistant state’s attorneys and deputy assistant state’s attorneys of the Superior Court by the common and statutory law of this state.
      “(b) The division shall take all steps necessary and proper to prosecute all crimes and offenses against the laws of the state and ordinances, regulations and bylaws of any town, city, borough, district or other municipal corporation or authority.
      “(c) The division, through the Chief State’s Attorney, shall participate on behalf of the state in all appellate, post-trial and postconviction proceedings arising out of the initiation of any criminal action whether or not the proceedings are denominated civil or criminal for other purposes.
      “(d) The Chief State’s Attorney and each deputy chief state’s attorney may sign any warrants, information, applications for grand jury investigations and applications for extradition; and (1) upon application made by a state’s attorney, and for good cause shown, after showing no other state’s attorney is available, the Chief State’s Attorney may be appointed by the Criminal Justice Commission to represent the state in criminal trials in lieu of any state’s attorney, assistant state’s attorney or deputy assistant state’s attorney in any judicial district, and (2) whenever the interest of the state will be furthered by so doing, the Chief State’s Attorney may represent the state in lieu of a state’s attorney for a judicial district in any investigation, criminal action or proceeding if the Chief State’s Attorney finds by clear and convincing evidence, misconduct, conflict of interest or malfeasance of a state’s attorney, provided, upon request of such state’s attorney, the Criminal Justice Commission, pursuant to regulations adopted in accordance with chapter 54, and after notice and hearing and good cause shown, may designate such state’s attorney to represent the state in such investigation, criminal action or proceeding. In any case where the Chief State’s Attorney indicates his intent to represent the state in lieu of a state’s attorney under this subsection, and such state’s attorney objects to such representation, upon the request of such state’s attorney the Chief State’s Attorney and the state’s attorney shall each prepare a written statement of their claims relative to such representation. Both statements shall be submitted to the commission to be considered by it at such hearing and shall become a permanent record which may be reviewed by the commission and used at the time of reappointment of the Chief State’s Attorney or such state’s attorney.”

       General Statutes § 52-108 provides in relevant part: “New parties may be added and summoned in, and parties misjoined may be dropped, by order of the court, at any stage of the action, as the court deems the interests of justice require.” See also Practice Book § 9-19.

       At oral argument, the defendants’ counsel noted that the corporate defendant was not being prosecuted in the criminal proceedings. That is a distinction without a difference. The corporation is a defendant in the underlying civil action and, if it is aggrieved, it may appeal from the discovery orders and order of intervention in this case once there is an appealable final judgment. It is also noted that the subpoenas are only quashed temporarily and that discovery will be permitted once the criminal charges have been resolved.


author: BISHOP, J.

text:
    ROBERT MORAN v. EASTERN EQUIPMENT SALES, INC., ET AL.
    (AC 22273)
    Foti, Dranginis and Bishop, Js.

      Argued January 16
    officially released April 8, 2003

      Scott L. Haworth, pro hac vice, with whom were James Somers and, on the brief, Christopher Lynch and Bonnie Schinagle, for the appellant (defendant Case Corporation).

      William T. Blake, Jr., for the appellee (plaintiff).
   Opinion

BISHOP, J.

The defendant Case Corporation (Case) appeals from the judgment of the trial court, rendered after a jury verdict, in favor of the plaintiff, Robert Moran. Case claims that the court improperly (1) refused to set aside the verdict on the basis of General Statutes § 52-577a, (2) refused to direct a verdict in favor of Case and grant its motion to set aside the verdict on the question of design defect, (3) refused to grant Case’s motion to set aside the verdict on the question of failure to warn, (4) admitted the testimony of the plaintiffs expert, (5) admitted as exhibits an operator’s manual and parts catalog, and (6) instructed the jury on the issues of warnings and proximate cause. We affirm the judgment of the trial court.

The jury could have reasonably found the following facts. On December 20, 1993, the plaintiff purchased a W24 wheel loader, manufactured by Case, from Eastern Equipment Sales, Inc. (Eastern). The purchase price was $12,000. Eastern and Case had a distribution agreement under which Eastern sold Case products and provided product support for Case products.

On January 8, 1994, while the plaintiff was working in a plaza removing snow with the W24, he moved a fuel truck next to the W24, removed the engine cover and placed it on the ground, and, with the W24’s engine still running, ran a hose from the fuel track to the fuel fill inside the W24’s engine compartment to refuel the W24. When he was finished, he replaced the cap on the fuel fill and returned the hose to the fuel track. He next reached down with his left hand to retrieve the engine cover while resting his right hand near the fuel fill. The plaintiff then slipped and his right hand went forward. Hearing a “thump, thump” noise, the plaintiff pulled his hand back, saw that his glove had been shredded and that he had sustained an injury. A coworker then took him to a hospital, where Paul Fischer, an emergency room physician, performed a procedure on the plaintiffs hand requiring the amputation of the right index finger while saving the right middle finger. Fischer later testified that the cause of the plaintiffs injury was contact with the W24’s engine fan blade.

The plaintiff subsequently brought an action against Eastern and Case under the Product Liability Act, General Statutes § 52-572m et seq. Case denied liability and asserted twelve special defenses, including numerous specifications of contributory negligence and misuse. The action was tried to the jury beginning on July 6, 2001. On July 17, 2001, the jury returned a verdict in favor of the plaintiff in the amount of $12,000 in economic damages and $200,000 in noneconomic damages. The jury assessed liability finding the plaintiff to be 25 percent responsible, Eastern to be 50 percent hable and Case to be 25 percent hable. The court rendered judgment thereon. On July 26, 2001, Case filed a motion to set aside the verdict, which the court denied on August 15, 2001. This appeal followed. Additional facts will be set forth as necessary.

I

Case’s first claim is that the court improperly refused to set aside the verdict against Case on the basis of § 52-577a. Specifically, Case claims that because it parted possession with the W24 more than ten years prior to the plaintiffs injury, the plaintiff was required to and failed to prove that the W24 was within its safe and useful life, as provided in § 52-577a (c), at the time of his injury. Case further contends that § 52-577a (c) provides five considerations for the court to determine whether a product is within its safe and useful life, and that the plaintiff failed to present proof as to any of those factors. We disagree.

“[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict . . . [is] the abuse of discretion standard. . . . In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court’s ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . . We do not . . . determine whether a conclusion different from the one reached could have been reached. ... A verdict must stand if it is one that a jury reasonably could have returned and the trial court has accepted.” (Internal quotation marks omitted.) Bolmer v. McKulsky, 74 Conn. App. 499, 510, 812 A.2d 869, cert. denied, 262 Conn. 954, 818 A.2d 780 (2003).

The issue of whether the plaintiffs injury occurred during the W24’s safe and useful life was posed to the jury in a special interrogatory asking: “Do you find that the accident of January 8, 1994, occurred during the useful safe life of the W24?” The jury answered in the affirmative. Therefore, we must determine whether the record supported the jury’s finding.

As a preliminary matter, we note that with respect to the factors set forth in § 52-577a (c), Case is incorrect in its suggestion that they are statutory requirements. Rather, the statute enumerates those factors as those a fact finder “may consider among other factors . . . .” General Statutes § 52-577a (c). The enumerated factors merely are guidelines to aid the fact finder in determining whether a product is within its safe and useful life.

The plaintiffs expert, O. John Zamparo, testified that wear and tear played no role in the plaintiffs injury. He asserted, rather, that the injury occurred because of a defect in the W24’s design. The design defect, he stated, was the location of the fuel fill in close proximity to an unguarded fan blade. Zamparo further testified that the design of the W24, with regard to the fan blade, was unchanged from its design on the date of manufacture.

Additionally, the plaintiff testified that prior to his injury, he had used the W24 for loading sand and salt. After his injury, he continued to use the W24 for such things as snow removal and loading trucks until the W24 sustained engine trouble, at which time the plaintiff parked it in an outdoor storage lot, not wanting to alter it due to this litigation.

Case’s expert, David H. Seaburg, an engineer employed by Case, testified that the W24 model was available with an hour meter and that a W24 with 6000 hours of indicated use would still be within its normal life expectancy. He further testified that he inspected the plaintiffs W24 in 1998 and found that its meter had a reading indicating less than 6000 hours of use. He claimed, however, that he did not believe the hour meter was working because of the low number of hours indicated on the meter. Finally, he acknowledged that he did not test the meter to verify his assumption that it was not functioning properly.

On the basis of the foregoing evidence, the jury reasonably could have concluded that the plaintiffs W24 was within its safe and useful life at the time of the plaintiffs injury. Consequently, we find no abuse of discretion on the part of the court in refusing to set aside the verdict against Case based on § 52-577a.

II

Case next claims that the court improperly refused either to direct a verdict in its favor or to set aside the verdict against it on the question of design defect. Specifically, Case argues that the plaintiff failed to sustain his burden of proof under § 52-572m et seq. on his claim that the W24 was defective in its design. We disagree.

“Our standard of review of a directed verdict is well settled. A trial court should direct a verdict for a defendant if, viewing the evidence in the light most favorable to the plaintiff, a jury could not reasonably and legally reach any other conclusion than that the defendant is entitled to prevail.” (Internal quotation marks omitted.) Beecher v. Greaves, 73 Conn. App. 561, 563, 808 A.2d 1143 (2002). “The trial court’s refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be given in favor of its correctness. ... In reviewing the action of the trial court in denying [a motion] ... to set aside [a] verdict, our primary concern is to determine whether the court abused its discretion and we decide only whether, on the evidence presented, the jury could fairly reach the verdict [it] did.” (Internal quotation marks omitted.) Mazzacane v. Elliott, 73 Conn. App. 696, 699, 812 A.2d 37 (2002).

Our Supreme Court thoroughly reviewed the topic of design defect strict liability claims in Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 694 A.2d 1319 (1997). In Potter, the court stated that “[products liability law has thus evolved to hold manufacturers strictly liable for unreasonably dangerous products that cause injury to ultimate users. Nevertheless, strict tort liability does not transform manufacturers into insurers, nor does it impose absolute liability. . . . [F]rom the plaintiffs point of view the most beneficial aspect of the rule is that it reheves him of proving specific acts of negligence and protects him from the defenses of notice of breach, disclaimer, and lack of privity in the implied warranty concepts of sales and contracts. . . . Strict tort liability merely reheves the plaintiff from proving that the manufacturer was neghgent and allows the plaintiff to estabhsh instead the defective condition of the product as the principal basis of liability.” (Citations omitted; internal quotation marks omitted.) Id., 210-11.

The court recognized that under the then existing test for design defect liability, the “consumer expectation” test, “a manufacturer is strictly hable for any condition not contemplated by the ultimate consumer that will be unreasonably dangerous . . . .” Id., 212. The court defined the term “unreasonably dangerous” to mean that “[t]he article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its [characteristics].” (Internal quotation marks omitted.) Id., 214-15, quoting 2 Restatement (Second), Torts § 402A, comment (i) (1965).

The court, additionally, incorporated a new test termed the “modified consumer expectation” test. That test evolved from a recognition “that there may be instances involving complex product designs in which an ordinary consumer may not be able to form expectations of safety. ... In such cases, a consumer’s expectations may be viewed in light of various factors that balance the utility of the product’s design with the magnitude of its risks. . . . Thus, the modified consumer expectation test provides the jury with the product’s risks and utility and then inquires whether a reasonable consumer would consider the product unreasonably dangerous.” (Citations omitted; internal quotation marks omitted.) Potter v. Chicago Pneumatic Tool Co., supra, 241 Conn. 219-20.

The court further provided guidelines as to when a trial court should employ the consumer expectation test or the modified consumer expectation test. “[W]e do not require a plaintiff to present evidence relating to the product’s risks and utility in every case. . . . There are certain kinds of accidents — even where fairly complex machinery is involved — [that] are so bizarre that the average juror, upon hearing the particulars, might reasonably think: Whatever the user may have expected from that contraption, it certainly wasn’t that. . . . Accordingly, the ordinary consumer expectation test is appropriate when the everyday experience of the particular product’s users permits the inference that the product did not meet minimum safety expectations. . . .

“Conversely, the jury should engage in the risk-utility balancing required by our modified consumer expectation test when the particular facts do not reasonably permit the inference that the product did not meet the safety expectations of the ordinary consumer. . . . Furthermore, instructions based on the ordinary consumer expectation test would not be appropriate when, as a matter of law, there is insufficient evidence to support a jury verdict under that test. ... In such circumstances, the jury should be instructed solely on the modified consumer expectation test we have articulated today.

“In this respect, it is the function of the trial court to determine whether an instruction based on the ordinary consumer expectation test or the modified consumer expectation test, or both, is appropriate in light of the evidence presented. In making this determination, the trial court must ascertain whether, under each test, there is sufficient evidence as a matter of law to warrant the respective instruction.” (Citations omitted; internal quotation marks omitted.) Id., 222-23.

Here, the court instructed the jury on the original consumer expectation test without objection from Case. Accordingly, our task is to determine whether a jury could have reasonably found that the W24’s design was dangerous “ ‘to an extent beyond that which would be contemplated by the ordinary consumer . . . ” Id., 214-15.

The jury heard the following evidence relevant to that determination. The plaintiffs hand slid into the engine area while he was refueling the W24 as the engine was running. He heard a “thump, thump” noise and, when he pulled his hand out, his fingers were injured. Zamparo testified that the fan blade was only seven inches from the fuel fill and that there was no guard to prevent the plaintiffs hand from coming into contact with the fan blade. Fischer testified that to a reasonable degree of medical probability, the plaintiffs injuries were more likely than not caused by the engine fan blade.

The jury could reasonably have concluded that the proximity of the unguarded fan blade to the fuel fill was the result of an unreasonably dangerous design. Consequently, the court did not abuse its discretion in refusing to direct a verdict in favor of Case or to set aside the verdict against Case based on the question of design defect.

Ill

Case next claims that the court improperly refused to grant its motion to set aside the verdict on the question of failure to warn. Case argues that the safety warnings distributed with the W24 were adequate to warn the plaintiff who, Case argues, was a sophisticated user. We are unpersuaded.

Claims premised on a failure to warn are based on General Statutes § 52-572q, which provides in relevant part: “(a) A product seller may be subject to liability for harm caused to a claimant who proves by a fair preponderance of the evidence that the product was defective in that adequate warnings or instructions were not provided, (b) In determining whether instructions or warnings were required and, if required, whether they were adequate, the trier of fact may consider: (1) The likelihood that the product would cause the harm suffered by the claimant; (2) the ability of the product seller to anticipate at the time of manufacture that the expected product user would be aware of the product risk, and the nature of the potential harm; and (3) the technological feasibility and cost of warnings and instructions, (c) In claims based on this section, the claimant shall prove by a fair preponderance of the evidence that if adequate warnings or instructions had been provided, the claimant would not have suffered the harm. . . .”

“The established rule in Connecticut is that [a] product may be defective because a manufacturer or seller failed to warn of the product’s unreasonably dangerous propensities. . . . Under such circumstances, the failure to warn, by itself, constitutes a defect.” (Citations omitted; internal quotation marks omitted.) Battistoni v. Weatherking Products, Inc., 41 Conn. App. 555, 562, 676 A.2d 890 (1996).

When Case first distributed the W24 in 1969, it provided a manual that warned against refueling the W24 when the engine is hot or running. The plaintiff testified, however, that when he purchased the W24 from Eastern, he did not receive a manual. He also testified that if he had received such a manual, he would not have refueled the W24 with its engine running, and, therefore, the accident would not have happened in the manner in which it had occurred. The plaintiff also stated that he had requested a copy of the manual from Eastern at the time of his purchase, but did not receive one until after the accident. When he finally received an operator’s manual, it was for the 1973 model W24, and it contained no relevant warnings.

The plaintiffs expert, Zamparo, testified that upon his examination of the W24, he determined that there were no warnings on the equipment itself with respect to the dangers posed by the unguarded fan blade. He further testified that because of the proximity of the fan blade to the fuel fill and the absence of a guard, there should have been warnings placed on the inside of the engine compartment regarding the danger of attempting to fuel the W24 with its engine running.

On the basis of that evidence, we believe that the jury reasonably could have found that the plaintiff proved that if there had been adequate warnings in place at the time of the incident, he would not have been injured. Accordingly, the court did not abuse its discretion in refusing to set aside the verdict against Case on that basis.

Also regarding the issue of warnings, Case contends that because the plaintiff was a sophisticated user, it had no obligation to warn him of the dangers of refueling the engine while it was running.

Section 52-572q (b) (2) recognizes that a sophisticated buyer may not need the same level of warning as an ordinary buyer would, and it directs that a fact finder may consider “the ability of the product seller to anticipate at the time of manufacture that the expected product user would be aware of the product risk, and the nature of the potential harm . . . This court further has recognized the sophisticated buyer defense to failure to warn claims. See Sharp v. Wyatt, Inc., 31 Conn. App. 824, 847, 627 A.2d 1347 (1993) (“ ‘when the supplier has reason to believe that the purchaser of the product will recognize the dangers associated with the product, no warnings are mandated’ ”), aff d, 230 Conn. 12, 644 A.2d 871 (1994).

The plaintiff testified that he was an experienced contractor and that he was familiar with various types of off-road equipment. He knew the W24’s engine contained moving parts and recognized that the fuel fill was in close proximity to the fan blade. The plaintiff further testified that the engine’s moving parts could be dangerous and that the parts would be moving only while the engine was running.

We do not believe that that testimony, in and of itself, mandates a conclusion that the plaintiff is a “sophisticated user.” His familiarity with off-road equipment did not necessarily instill in him the knowledge that this particular model loader would have an unguarded fan blade in close proximity to the fuel fill. Moreover, the factual determination of whether a purchaser is a sophisticated buyer must be viewed from the perspective of the manufacturer. In other words, the question for the jury was whether Case had reason to believe that the purchaser of its product would recognize the dangers associated with the product so as mitigate the duty of Case to warn. The record does not support Case’s contention that the jury could not reasonably have concluded that the plaintiff was entitled to the reasonable warning due an ordinary consumer.

IV

Case next claims that the court improperly admitted the opinion testimony of Zamparo, the plaintiffs expert. Specifically, Case claims that Zamparo failed to demonstrate any peculiar or special knowledge with regard to the W24, its design or usage and, as such, was not qualified to testify. We disagree.

“[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed. . . . Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Internal quotation marks omitted.) State v. Henry, 72 Conn. App. 640, 654, 805 A.2d 823, cert. denied, 262 Conn. 917, 811 A.2d 1293 (2002).

Section 7-2 of the Connecticut Code of Evidence provides that “[a] witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue.”

Our review of the record reveals no abuse of discretion on the part of the court in allowing Zamparo’s testimony. Zamparo is a professional engineer, licensed by the state of Connecticut, who holds a mechanical engineering degree with a concentration in the automotive area. He has worked for Chrysler and completed a two year graduate program during that employment, receiving his master’s degree in automotive engineering in 1957. Zamparo has been employed as an engineer for more than forty-eight years and has significant experience in product safety and machine design areas, including consultations involving off-road equipment. Those and other numerous credentials demonstrate that Zamparo can fairly be said to have a “ ‘special skill or knowledge directly applicable to a matter in issue’ State v. Henry, supra, 72 Conn. App. 654; that his “ ‘skill or knowledge is not common to the average person’ ”; id.; and that his “ ‘testimony [was] helpful to the court or jury in considering the issues.’ ” Id. The court did not abuse its discretion in admitting Zamparo’s expert testimony.

V

Case next claims that the court improperly admitted exhibits N, an operator’s manual, and M, a parts catalog, submitted by the plaintiff. Specifically, Case claims that because those exhibits were from a later year’s model and were different from those provided with the plaintiffs W24 at the time of its initial sale, they were irrelevant and their admission was prejudicial. We are not persuaded.

“The trial court’s ruling on the admissibility of evidence is entitled to great deference. . . . [T]he trial court has broad discretion in ruling on the admissibility ... of evidence. . . . The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion. . . . We will make every reasonable presumption in favor of upholding the trial court’s ruling, and only upset it for a manifest abuse of discretion. . . . Moreover, evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the defendant of substantial prejudice or injustice.” (Internal quotation marks omitted.) State v. Mazzeo, 74 Conn. App. 430, 434, 811 A.2d 775 (2003).

Outside of the jury’s presence, the court held a hearing to determine the admissibility of exhibits M and N, the parts catalog and operator’s manual the plaintiff purchased after his accident. During that hearing, Case stipulated that exhibit N was the operator’s manual for the W24, published by Case in 1973. Additionally, Case stipulated that exhibit M was the parts catalog for the W24, published by Case in 1975.

The court admitted exhibits M and N as admissions on the part of Case. The operator’s manual that accompanied the W24 when it was sold in 1969 had been admitted as exhibit three and contained a warning not to refuel the W24 while the engine is hot or running. Exhibits M and N did not contain any such warning. Case had asserted as a special defense that the plaintiff had misused the product, i.e., that he failed to obey the instructions provided to operators of the W24 and refueled the W24 without shutting off the engine. At trial, however, Case stipulated that exhibits M and N applied to the W24 on which the plaintiff was injured. The plaintiff offered exhibit M in response to the defense of misuse raised by Case on the ground that the absence of any warning in the 1973 manual was some evidence that Case no longer thought in 1973 that refueling the W24 with its engine running was dangerous. Under those circumstances, we believe the court did not abuse its discretion and ruled properly in admitting exhibits M and N.

VI

Case’s final claim is that the court improperly instructed the jury on the issues of warnings and proximate cause. Specifically, Case argues that the court abused its discretion in failing to charge the jury as to the plaintiffs burden under § 52-572q (c) and as to his burden of establishing proximate cause. We disagree.

“The principal function of a jury charge is to assist the jury in applying the law correctly to the facts which they might find to be established . . . and therefore, we have stated that a charge must go beyond a bare statement of accurate legal principles to the extent of indicating to the jury the application of those principles to the facts claimed to have been proven. . . .

“When reviewing the challenged jury instruction, however, we must adhere to the well settled rule that a charge to the jury is to be considered in its entirety, read as a whole, and judged by its total effect rather than by its individual component parts. . . . [T]he test of a court’s charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established mies of law. ... As long as [the instmctions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instmctions as improper. . . . [I]n appeals involving a constitutional question, [the standard is] whether it is reasonably possible that the jury [was] misled.” (Internal quotation marks omitted.) State v. Davis, 261 Conn. 553, 563-64, 804 A.2d 781 (2002).

With respect to § 52-572q (c), Case claims that the court’s charge did not identify the specific burden placed on the plaintiff, i.e., that “the claimant shall prove by a fair preponderance of the evidence that if adequate warnings or instmctions had been provided, the claimant would not have suffered the harm. ” General Statutes § 52-572q (c).

The court instructed the jury in relevant part that “[t]he party who makes the claim has the burden of proof with respect to that claim. The plaintiff has the burden of proving each essential element of its complaint. The defendants do not have to present evidence to disprove any of the plaintiffs claims. ... In order to recover from [Case or Eastern], the plaintiff has the burden of proving both that when that defendant sold the wheel loader, or W24, that machine was in a defective condition and that that defective condition or defect caused injury to the plaintiff ... A product seller is hable to a plaintiff who suffers injury from the use of a product if the product could not be used safely by the ordinary consumer without adequate warnings or instructions.” (Emphasis added.) We believe that that quoted portion of the jury instructions clearly conveys the plaintiffs burden of proof with respect to a failure to warn claim under § 52-572q (c).

Case further claims that the court failed to instruct the jury adequately on the element of proximate cause with respect to the design defect. The court charged the jury in relevant part as follows: “In order to prevail against the defendant . . . the plaintiff must also prove that the design defect existed at the time the W24 left [the defendant]. ... A product seller is not hable if another person alters a product in a way that creates a defect unless the product seher expected or reasonably should have expected an alteration to occur. ... If you find that the harm would have occurred notwithstanding any alterations, then the defendant . . . may not be excused from liability on the grounds that the W24 was altered.” We believe that portion of the court’s charge clearly conveys the burden on the plaintiff to prove that the design defect proximately caused his injury.

Case’s final claim with respect to the jury instructions is that the court improperly failed to instruct the jury that a product seller is not liable for failure to provide a warning if the plaintiff is aware of the danger.

The court instructed the jury in relevant part as follows: “In deciding whether warnings or instructions were necessary, you are to consider first the likelihood that the W24 would cause the type of harm suffered by the plaintiff. Second, the ability of a defendant to anticipate at the time it put the W24 into the stream of commerce that an expected user would be aware of the risks involved in using the W24 and of the nature of the potential harm. And, third, the technological feasibility and cost of warnings and instructions.” (Emphasis added.) That instruction not only conveys the considerations set forth in § 52-572q (b), but also is sufficient, to convey the notion that a plaintiff may not recover if the defendant reasonably anticipated that a W24 purchaser, such as the plaintiff, could be expected to be aware of the danger posed by the W24. The court’s instruction was not deficient.

The judgment is affirmed.

In this opinion the other judges concurred.

       The named defendant, Eastern Equipment Sales, Inc., has not appealed from the judgment. We therefore refer in this opinion to Case as the defendant.

       General Statutes § 52-577a (a) provides in relevant part: “[N]o such action may be brought against any party nor may any party be impleaded pursuant to subsection (b) later than ten years from the date that the party last parted with possession or control of the product.”
      Section 52-577a (c) provides in relevant part that “ [t]he ten-year limitation provided for in subsection (a) shall not apply to any product liability claim brought by a claimant . . . provided the claimant can prove that the harm occurred during the useful safe life of the product. In determining whether a product’s useful safe life has expired, the trier of fact may consider among other factors: (1) The effect on the product of wear and tear or deterioration from natural causes; (2) the effect of climatic and other local conditions in which the product was used; (3) the policy of the user and similar users as to repairs, renewals and replacements; (4) representations, instructions and warnings made by the product seller about the useful safe life of the product; and (5) any modification or alteration of the product by a user or third party. ”

       Seaburg’s deposition testimony was read into the record; he did not testify at the trial.


author: FLYNN, J.

text:
    STATE OF CONNECTICUT v. ARTHUR GAINEY
    (AC 22351)
    Foti, Flynn and West, Js.

      Argued December 3, 2002
    officially released April 8, 2003

      Norman A. Pattis, with whom, on the brief, was David G. Toro, for the appellant (defendant).

      Julia K. M. Conlin, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Anne F. Mahoney, assistant state’s attorney, for the appellee (state).
   Opinion

FLYNN, J.

The defendant, Arthur Gainey, appeals from the judgment of conviction, rendered after a jury trial, of sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1) and risk of injury to a child in violation of General Statutes § 53-21. The defendant also pleaded nolo contendere to a charge, contained in a part B information, of being a persistent felony offender in violation of General Statutes § 53a-40 and was found guilty. On appeal, the defendant claims that the court improperly (1) conducted its in camera review of certain documents and redacted the documents released to the defendant too extensively, (2) allowed the state to withhold potentially exculpatory documents and (3) limited cross-examination of the victim. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In the fall of 1995, the thirteen year old victim spent the night at the home of the defendant and his family. The defendant’s wife was in and out of the home during the victim’s stay, but the defendant remained at home. At some point during the evening, the defendant called the victim into his bedroom. After she entered the bedroom, the defendant pulled her onto his bed, touched her breasts and vagina, pulled away her underpants, pushed her legs apart and attempted to have sexual intercourse with her by partially inserting his penis into her vagina. The victim told the defendant to “stop.” The defendant’s wife entered the room and slapped the victim across the face. The victim then ran into the living room.

Also in the fall of 1995, after driving one of his family members to school, the defendant was supposed to take the victim, who was in the backseat of the defendant’s automobile, to her home. Instead, the defendant drove to a parking lot, climbed into the backseat with the victim, performed oral sex on her and then proceeded to masturbate.

The victim did not report these incidents of sexual assault to anyone until approximately four years later, in 1999, when she told Officer Hardy Burgin of the East Hartford police department. The defendant subsequently was interviewed by Burgin, charged and convicted of the crimes charged.

I

The defendant first claims that the court improperly conducted its in camera review of confidential documents and that it also redacted what documents it turned over to the defendant too extensively. After conducting our own thorough in camera review of these voluminous documents, which are approximately eight inches thick, we disagree with the defendant’s claim.

Our standard of review in determining whether a court properly conducted an in camera review of confidential records is abuse of discretion. See State v. Walsh, 52 Conn. App. 708, 722, 728 A.2d 15, cert. denied, 249 Conn. 911, 733 A.2d 233 (1999). On appeal, “[t]his court has the responsibility to conduct its own in camera review of the sealed records to determine whether the trial court abused its discretion in refusing to release those records to the defendant. . . . While we are mindful that the defendant’s task to lay a foundation as to the likely relevance of records to which he is not privy is not an easy one, we are also mindful of the witness’ legitimate interest in maintaining, to the extent possible, the privacy of her confidential records. . . . The linchpin of the determination of the defendant’s access to the records is whether they sufficiently disclose material especially probative of the ability to comprehend, know and correctly relate the truth ... so as to justify breach of their confidentiality .... Whether and to what extent access to the records should be granted to protect the defendant’s right of confrontation must be determined on a case by case basis. . . .

“At this stage in the proceedings, when the court has reviewed the records in camera, access to the records must be left to the discretion of the trial court which is better able to assess the probative value of such evidence as it relates to the particular case before it . . . and to weigh that value against the interest in confidentiality of the records.” (Citations omitted; internal quotation marks omitted.) State v. Delgado, 64 Conn. App. 312, 319-20, 780 A.2d 180 (2001), aff'd, 261 Conn. 708, 805 A.2d 705 (2002).

After closely examining each and every one of the challenged records, along with thoroughly reviewing each of the disclosed redacted records in toto, we conclude that the court did not abuse its discretion in limiting access to the victim’s confidential records or in redacting those records that it did disclose.

II

The defendant next claims that the court may have improperly allowed the state to withhold potentially exculpatory documents both from his review and from the court’s in camera review. This claim involves the prosecutor’s statement to the court that she did not believe that the “other documents” that she had in her possession were “things that [the] court need[ed] to review.” On the basis of our review of the record, we conclude that the defendant has not shown that the state withheld anything from the court’s review. The defendant concedes that no objection was made at any time and that he did not argue that his right to due process was violated. Accordingly, the defendant requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

Because the record is adequate for review and the issues raised involve a fundamental right, we will review the defendant’s claim under Golding. See State v. Wegman, 70 Conn. App. 171, 190, 798 A.2d 454, cert. denied, 261 Conn. 918, 806 A.2d 1058 (2002). The defendant, however, cannot prevail under the third prong of Golding because he has failed to establish that a constitutional violation clearly exists and that it clearly deprived him of a fair trial.

Before the start of testimony, the state informed the court that it recently had learned that the department of children and families had records concerning the victim and that those records were being copied for the court’s review. The defense counsel asked that all of these records, which the state disclosed it had learned about, be ordered sealed and filed with the court. The state agreed, and the court ordered them sealed and made part of the court file. After receiving some of these reports, the state informed the court that there was nothing exculpatory within them and that some material was protected by the rape shield statute, General Statutes § 54-86f, and the psychological records privilege provided in General Statutes § 52-146e. We note that other reports are privileged under the provisions of General Statutes § 17a-28. The state also informed the court that there were no records concerning the defendant or the allegations against him. The defendant requested that the court conduct an in camera review of all records, and the court ordered the state to provide it with any remaining records for its review upon receipt.

Although the defendant correctly argues that the state informed the court that it believed that some of the documents it had in its possession did not need to be reviewed by the court, the state later informed the court that any documents still in its possession related solely to other members of the victim’s family and not to the victim herself. It does appear, however, from a review of the trial transcript that the court, in fact, did review these familial records.

When discussions ensued concerning the placing of all copies of the confidential records in a box to be sealed by the court, the court asked the prosecutor if she had “a whole bunch of documents to add to the box.” The prosecutor explained that she did have a number of records, some of which concerned the victim’s family. She then stated that “[pjages one through eleven were not provided to the court [because they concern] an incident that took place on July 12, 1996 . . . .” The court then questioned the prosecutor, asking if there were documents that it had not reviewed. The prosecutor responded: “You have reviewed pages one through twelve that involve an incident where a fire was set by a sibling. It has nothing to do with [the victim].” Although we agree with the defendant’s argument that the decision on whether documents are relevant should not be left solely with the prosecutor, upon reviewing the entire record, along with each document sealed by the court, we find no support for the conclusion that the state did not turn over all documents despite its belief that the court did not need to review all of them.

Our review of all of the sealed records causes us to conclude that many, if not most, of them were records concerning other members of the victim’s family and not the victim herself. We therefore find no merit to the defendant’s claim. We are particularly mindful that the defendant makes no claim of prosecutorial misconduct in the alleged withholding of any documents. The defendant’s claim that there might have been additional documents and, therefore, the court should have ordered the state to turn them over is without merit. The defendant has failed to establish a clear constitutional violation that clearly deprived him of his right to a fair trial.

Ill

The defendant’s final claim is that the court improperly limited cross-examination of the victim regarding statements contained in her confidential records that allegedly are relevant to her veracity or are exculpatory. The defendant argues that his right to confrontation under the due process clause was thus violated. We do not agree.

“The sixth amendment to the [United States] constitution guarantees the right of an accused in a criminal prosecution to confront the witnesses against him. . . . The primary interest secured by confrontation is the right to cross-examination . . . and an important function of cross-examination is the exposure of a witness’ motivation in testifying. . . . Cross-examination to elicit facts tending to show motive, interest, bias and prejudice is a matter of right and may not be unduly restricted. . . . However, [t]he [confrontation [c]lause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. . . . Every reasonable presumption should be made in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion. ... If the constitutional standard has been met, then we must nonetheless examine whether the court abused its discretion in restricting the defendant’s cross-examination of the victim.” (Citation omitted; internal quotation marks omitted.) State v. Price, 61 Conn. App. 417, 428, 767 A.2d 107, cert. denied, 255 Conn. 947, 769 A.2d 64 (2001).

Although the defendant argues that allowing him to question the victim regarding statements contained in certain confidential documents that were disclosed to him would have elicited information that would aid the jury in assessing the credibility of the victim, we conclude that in light of the record of overall cross-examination conducted, the defendant had ample opportunity to cross-examine the victim. On cross-examination, the defendant elicited much testimony relating to the victim’s credibility, such as the fact that she did not report the sexual assaults for several years, that she did not like the defendant’s wife, that she was unsure of which assault occurred first, that she once had auditory hallucinations and that Burgin wrote out her statement for her. Assessing the complete cross-examination of the victim, we conclude that the jury was given sufficient, facts from which it could determine the reliability of the victim’s testimony, and the cross-examination of the victim, therefore, met the constitutional standard.

Having determined that the constitutional standard was satisfied, we next determine whether the court abused its discretion in restricting the defendant’s cross-examination of the victim. See State v. McKnight, 47 Conn. App. 664, 668, 706 A.2d 1003 (1998). We conclude that the defendant fails to satisfy his burden of proof on this issue.

“The trial court’s ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court’s discretion.” (Internal quotation marks omitted.) State v. Wright, 62 Conn. App. 743, 757, 774 A.2d 1015, cert. denied, 256 Conn. 919, 774 A.2d 142 (2001). “To establish an abuse of discretion, the defendant must show that the court’s restrictions clearly prejudiced him.” State v. Price, supra, 61 Conn. App. 429.

Here, the defendant wanted to pursue a line of questioning regarding statements contained in confidential records from the department of children and families. He argues that he was entitled to cross-examine the victim about these documents as a matter of right. The defendant does not explain how further questioning would have been helpful to his case or how the restriction on that cross-examination negatively affected his case. He fails to identify the exact questions that he would have asked the victim or even the ground on which the evidence was admissible.

In contrast, when the court limited the defendant’s right to cross-examine the victim concerning statements contained in these redacted documents, it went through each and every document and specifically held that each statement was either protected by the rape shield statute, too remote in time, factually distinguishable or would tend to inject collateral issues into the case, or that there was no support in the record for the proposition that the prior statements were false. After so holding, the court also explained that there was nothing in the record to conclude that the victim had made similar allegations against anyone other than the defendant, especially in the time period involved in this case.

Under the circumstances of this case, we conclude that the court did not infringe on the defendant’s right to cross-examine the victim. The court did not violate the defendant’s right to confrontation, and the court properly exercised its discretion in limiting cross-examination regarding protected statements contained in the victim’s confidential records.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant was found not guilty of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2).

       In accordance with our policy of protecting the privacy interests of the victims of sexual abuse, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

       The defendant states that he is put in a difficult position because he has not been privy to the contents of the confidential documents and, therefore, cannot identify a specific document that should have been released. We note that it is proper and not a violation of the confrontation clause for a court to exclude a defendant’s attorney from an in camera review. See State v. Streater, 36 Conn. App. 345, 354, 650 A.2d 632 (1994), cert. denied, 232 Conn. 908, 653 A.2d 195 (1995).

       We also note that many, if not most, of the confidential records toned over to the court concerned members of the victim’s family rather than the victim herself. Further, none of the confidential records made any reference to the defendant or to the allegations against him.

       The prosecutor explained to the court that “there are some [records of the department of children and families] -with regard to [the victim]. None of them, to my knowledge, involve the time frame in which the offense took place . . . there are none that are active right now that I’m aware of. There may have been some things that took place earlier in her life which may or may not be subject to other confidentiality requirements by law. And I believe that ... all those documents are being copied by the department of children and families.
      “The things that I was made aware of yesterday by the department of children and families, it’s the state’s position that they’re not exculpatory. But I did ask them to make a copy of that, starting yesterday as soon as I found out, so that I can make that available to the court. And you can . . . make a review.”
      Defense counsel, shortly thereafter, made the following request: “Your Honor, I think since the state is in possession of the records and is going to be making determinations as to the exculpatory nature of them or not, I have no idea what’s in those records or any idea — I have some information that [the victim] may have a mental health history. I have no information that I could bring to the court’s attention as to why that may or may not affect her ability to perceive, retain, and recollect any experience. However, since the state is reviewing those matters and since they’re reviewing them for exculpatory information, I am going to ask that a copy of all those records be sealed and placed in 1he court file ... in the event during the cross-examination some issues arise that ... a further review of those records be necessary. I would like them part of the court file.”
      The prosecutor stated that she did not object and the court so ordered.

       We note that these same pages, one through twelve, were marked and made part of the confidential sealed record and were available for our review.


author: PER CURIAM.

text:
    MARIAN FILIPEK v. J. WILLIAM BURNS, COMMISSIONER OF TRANSPORTATION, ET AL.
    (AC 22473)
    Dranginis, Flynn and Bishop, Js.
    Argued February 25
    officially released April 8, 2003

      James T. Scully, for the appellants (defendants).

      Daniel B. Scott, for the appellee (plaintiff).
   Opinion

PER CURIAM.

The defendant J. William Bums, the former commissioner of the department of transportation (commissioner), appeals from the trial court’s denial of his motion to dismiss the complaint of the plaintiff, Marian FUipek, on the basis of the doctrine of sovereign immunity. Because the sovereign immunity of the state protects it from unauthorized claims and litigation, and because that protection is lost where the state is required to litigate the plaintiffs claim, the court’s denial of the commissioner’s motion is a final judgment, ripe for appeal. See Shay v. Rossi, 253 Conn. 134, 164, 749 A.2d 1147 (2000) (en banc), citing State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983).

The plaintiff had complained that she sustained injuries when she tripped and feU from a raised walkway adjacent to a department of motor vehicles budding in New Britain. She also aUeged that at the time of the incident, the commissioner was charged with the care and maintenance of the walkway and parking area of the department of motor vehicles facility.

In response, the commissioner filed a motion to dismiss, aUeging that the locale of the plaintiffs aUeged injury is not a public highway or otherwise within the state highway system under the authority of the commissioner. Therefore, the commissioner urged, the plaintiffs claim does not come within the ambit of General Statutes § 13a-144, the statutory waiver for claims arising from injuries caused by defects in public highways. Additionally, the commissioner argued that there is no statute abrogating the state’s sovereign immunity for accidents occurring on property of the department of motor vehicles.

Included with its motion to dismiss, the defendant submitted an affidavit signed by a department of transportation employee stating, inter alia, that the location of the plaintiffs fall was not on property that the commissioner owned, maintained or had a duty to maintain. The court, nevertheless, denied the motion to dismiss, reasoning that the allegations of the complaint fairly created a dispute of material fact.

Thereafter, the commissioner filed requests for admission in which the plaintiff was asked to admit, inter alia, that she had no evidence to prove that the location of the incident was owned or maintained by the commissioner and that the commissioner did not, in fact, have any duty to inspect, maintain or repair the area in question. The plaintiff did not respond to those requests for admission.

Thereafter, the commissioner filed a motion to dismiss anew, repeating his original assertion that the claim was barred by sovereign immunity. That motion was accompanied by several affidavits of department of transportation employees to the effect that the commissioner had no duty to inspect, maintain, or repair the area of the plaintiffs alleged fall. The commissioner also alleged that the plaintiffs failure to deny the requests for admission had the effect of conclusively establishing that the accident did not occur on property that the defendant has a duty to inspect, repair or maintain. That motion was denied on the ground that there remained a genuine issue of material fact in dispute. This appeal followed.

“In ruling upon whether a complaint survives a motion to dismiss, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader. . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction. . . . [Bjecause [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary.” (Internal quotation marks omitted.) Tooley v. Metro-North Commuter Railroad Co., 58 Conn. App. 485, 491, 755 A.2d 270 (2000).

The commissioner correctly asserts that because the plaintiff did not respond or object to the requests for admissions, her silence should be deemed an admission of their truth and the statements admitted should be deemed conclusively proven. See Practice Book §§ 13-23 and 13-24. Once the commissioner submitted affidavits in conjunction with his motion to dismiss and brought to the court’s attention the plaintiffs admissions to the requests for admissions, any presumption of truth in the plaintiffs assertion in her complaint that the defendant had a duty to maintain the site of the incident was defeated. See Amore v. Frankel, 228 Conn. 358, 368, 636 A.2d 786 (1994). In response to the motion to dismiss, it therefore was incumbent on the plaintiff to dispute the facts contained in the affidavits and established by her admissions. In the absence of any such response by the plaintiff, the motion to dismiss should have been granted.

The judgment is reversed and the case is remanded with direction to render judgment in favor of the defendants.

       James F. Sullivan, the current commissioner of the department of transportation, also is a defendant. For convenience, we refer in this opinion to Bums and Sullivan, collectively, as the defendant.