author: DUPONT, J.

text:
    LILLIAN MACK v. BERNARD LAVALLEY ET AL.
    (AC 18196)
    Lavery, Schaller and Dupont, Js.

      Argued April 29
    officially released October 5, 1999

      Michael S. Taylor, with whom were Brian P. Learning and, on the brief, Daniel P. Scapellati and David G. Hill, for the appellants (defendants).

      Brian W. Prucker, for the appellee (plaintiff).
   Opinion

DUPONT, J.

The defendants, Bernard LaValley and Pauline LaValley, appeal from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff, Lillian Mack, in this premises liability action. On appeal, the defendants claim that the trial court improperly (1) admitted into evidence deposition testimony of a plaintiffs witness and failed to redact the witness’ opinion testimony contained in that deposition, (2) denied the defendants’ motions to set aside the verdict and for judgment notwithstanding the verdict and (3) failed to reduce the economic damages award by the amount of collateral source payments received by the plaintiff. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. On May 29, 1992, the plaintiff, a tenant of the defendants, was injured when she slipped and fell on the exterior stairs of the premises owned by the defendants. Thereafter, the plaintiff commenced a negligence action against the defendants seeking damages for her injuries. The plaintiff claimed that a defective and dangerous condition existed at the top threshold of the steps, which caused her to fall, and that the defendants knew or should have known of the condition and failed to make repairs.

At the close of the plaintiffs case-in-chief, the defendants filed a motion for a directed verdict, which the trial court denied. The defendants rested their case without presenting witnesses or evidence, and the jury returned a verdict in favor of the plaintiff. The defendants then filed motions to set aside the verdict and for judgment notwithstanding the verdict, which the court denied. This appeal followed. Other facts will be discussed where they are relevant to the defendants’ claims.

I

The defendants first claim that the trial court improperly admitted the deposition testimony of a plaintiffs witness because there was insufficient evidence to show that the witness was unavailable as required by Practice Book § 13-31. We disagree.

“The admissibility of a deposition into evidence under Practice Book § 248 [now § 13-31] is permissive in nature, leaving the ultimate determination to the trial judge. ... On appeal, the trial court’s rulings on the admissibility of evidence are accorded great deference . . . [and] will be disturbed only upon a showing of clear abuse of discretion. . . . The party making the claim of error has the burden of showing that the court clearly abused its discretion.” (Internal quotation marks omitted.) Pelarinos v. Henderson, 34 Conn. App. 726, 728-29, 643 A.2d 894, cert. denied, 231 Conn. 909, 648 A.2d 155 (1994).

Practice Book § 13-31 (a) provides in relevant part: “At the trial of a civil action . . . any part or all of a deposition . . . may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions ... (4) The deposition of a witness . . . may be used by any party for any purpose if the judicial authority finds . . . (B) that the witness is at a greater distance than thirty miles from the place of trial or hearing, or is out of the state and will not return before the termination of the trial or hearing, unless it appears that the absence of the witness was procured by the party offering the deposition . . . .”

The following additional facts are relevant to this claim. At trial, the plaintiff sought to introduce the deposition testimony of a witness, John Fitzgerald, an engineer deposed by both parties prior to trial, whom the plaintiff was unable to locate for the trial. The defendants objected to the admissibility of the deposition, claiming that the plaintiff had failed to establish the witness’ unavailability. The defendants also requested that if the deposition testimony was admitted, portions of the testimony be redacted.

The plaintiffs counsel then called a paralegal who works in his law office to testify as to the witness’ unavailability. She testified that when she called the witness at his home in Westbrook she heard a message on his answering machine stating that he was unavailable, that he was in Florida and that he could be reached at a certain telephone number that was recited. She further testified that she telephoned the number in Florida several times, including the day of trial, and no one answered. The trial court found that there was no indication that the absence of the witness was procured by the plaintiff. The court further found that fair and reasonable efforts were made to locate the witness, who at the time was not within thirty miles of the place of the trial, and, therefore, that the plaintiff had established unavailability as required by Practice Book § 13-31.

Under the circumstances, we conclude that the trial court did not clearly abuse its discretion in finding that the plaintiff had established the witness’ unavailability and had satisfied the requirements of Practice Book § 13-31 for the admission of the deposition testimony. The cases relied on by the defendants are inapposite and do not concern the admissibility of deposition testimony under Practice Book § 13-31. The defendants have failed to demonstrate that the trial court clearly abused its discretion in finding that the witness was at a distance greater than thirty miles from the place of trial, as set forth in the rules of practice. Therefore, their claim must fail.

The defendants next claim that the trial court improperly admitted the opinion testimony of the plaintiffs witness. We are not persuaded.

The following additional facts are relevant to this claim. After concluding that the plaintiff established the witness’ unavailability for trial, the court addressed the issue of the witness’ qualifications. The defendants claimed that the plaintiff failed to lay a foundation establishing the witness as an expert and, therefore, the testimony should have been excluded. The court agreed with the defendants that there was nothing in the testimony qualifying the witness as an expert. The court concluded that the witness could not testify as an expert, but found that “there is nothing to prevent [the witness] from being able to testify as an individual person, as a fact witness, as someone who has actually seen and observed circumstances that may be, in fact, relevant.”

The trial court determined that the witness could testify as a fact witness because photographs of the stairs he had taken already had been introduced into evidence without objection and had been testified to by the plaintiff as depicting the stairs at the time of the accident. The court concluded that the witness could testify as to two things, namely, the steps being slippery and the fact that there was a portion of the threshold, that sloped away from the door toward the street. These conditions are capable of being observed by laypersons.

The defendants claim that the admission of the witness’ opinion testimony was improper because (1) it essentially constituted expert opinion, (2) sufficient assurances of reliability were lacking because the defendants did not have an opportunity at trial to cross-examine the witness, (3) the witness’ observations were not corroborated because they were too remote in time and there was no evidence that the condition that caused the plaintiffs fall was the same as that observed by the witness, and (4) the plaintiffs introductory comments to the venire panels that the witness was a professional engineer, along with the portion of the testimony that was admitted, left the jury to speculate as to the qualifications of the witness, thereby prejudicing the defendants.

“The trial court has broad discretion in the admission of opinion testimony; Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 718, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991); which necessarily includes broad discretion to ascertain if the testimony is supported by a proper foundation. . . . Accordingly, its determination is accorded great deference by this court.” (Citation omitted.) Amwax Corp. v. Chadwick, 28 Conn. App. 739, 744, 612 A.2d 127 (1992). The trial court also has “broad discretion in ruling on the admissibility [and relevancy] 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.” (Citation omitted; internal quotation marks omitted.) New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745, 752, 680 A.2d 301 (1996).

The defendants first claim that the witness’ testimony was not a proper lay opinion because it “should have been more properly characterized as expert opinion.” The defendants, however, offer no authority or legal analysis in support of this assertion. We therefore decline to review this claim. Burke v. Avitabile, 32 Conn. App. 765, 772, 630 A.2d 624, cert. denied, 228 Conn. 908, 634 A.2d 297 (1993).

The defendants next claim that the testimony was improperly admitted without sufficient assurances of its reliability because the defendants did not have an opportunity at trial to cross-examine the witness. We disagree.

Our review of the transciipts reveals that while the defendants raised numerous claims concerning the admissibility of the deposition testimony at trial, they did not raise this claim at trial or in their motions to set aside the verdict and for judgment notwithstanding the verdict. “It is axiomatic that the trial court can be expected to rule only on those matters that are put before it. See Lee v. Lee, 174 Conn. 5, 7, 381 A.2d 529 (1977). With only a few exceptions . . . we will not decide an appeal on an issue that was not raised before the trial court. See State v. Golding, 213 Conn. 233, 239, 567 A.2d 823 (1989). ‘To review claims articulated for the first time on appeal and not raised before the trial court would be nothing more than a trial by ambuscade of the trial judge.’ Baker v. Cordisco, 37 Conn. App. 515, 522, 657 A.2d 230, cert. denied, 234 Conn. 907, 659 A.2d 1207 (1995).” Flewellyn v. Hempstead, 47 Conn. App. 348, 353, 703 A.2d 1177 (1997). Accordingly, we do not review this claim.

The defendants next claim that the admission of the lay opinion was improper because the witness’ observations were not corroborated in that they were too remote in time and there was no evidence that the condition that caused the plaintiffs fall was the same as that observed by the witness.

The witness’ testimony was based on his personal observation of the area where the plaintiff fell. The trial court found that the testimony was relevant and properly admissible because photographs of the stairs taken by the witness were introduced into evidence by the plaintiff and testified to by the plaintiff as depicting the stairs at the time of the accident. Also, another witness testified at trial that he had observed the same condition on the premises as long as six months before the incident. The court, therefore, found that the deposition witness’ observations, although occurring almost one year after the plaintiffs fall, were sufficiently reliable, and that the defendants’ objection essentially concerned the weight to be accorded the testimony and not its admissibility. “Once a witness’ competency is established, questions relating to any supposed lack of knowledge of the fact at issue go to the weight rather than the admissibility of the evidence.” Chouinard v. Marjani, 21 Conn. App. 572, 581, 575 A.2d 238 (1990). We cannot conclude that the trial court abused its discretion in admitting the witness’ opinion testimony.

The defendants’ final claim as to the admissibility of the opinion testimony is that the court’s allowing the witness to testify as a fact witness, after he had been introduced to the venire panels as a professional engineer, “was prejudicial to the defendants because the jurors, naturally, would accord his testimony greater weight.” The defendants essentially claim that the remarks to the jury panels and the substance of the witness’ testimony combined to prejudice them, thereby necessitating a new trial. The defendants are unable to cite any case law that supports that argument. We are not persuaded.

The following additional facts are relevant to this claim. During the jury selection process, the plaintiffs counsel gave one venire panel the names of persons that he intended to call as witnesses in order to discern if any members of the panel knew the witnesses. Specifically, he stated: “We have an investigator in this case, a professional engineer by the name of John Fitzgerald, no relation to our firm. He will be providing certain engineering reports.” He stated to a different venire panel: “There’s also an engineer by the name of John Fitzgerald who may be providing testimony in this case.” The jury was selected from those panels.

At trial, out of the presence of the jury, the trial court heard arguments from counsel and determined the admissibility of the witness’ deposition testimony. The court concluded that the witness could not testify as an expert but that he could testify as a fact witness. When the jury was brought back into the courtroom, the plaintiffs counsel stated that he wanted to introduce a part of a deposition that took place on May 7, 1996, of a witness named John Fitzgerald. The trial court explained to the jury the procedure by which the testimony of someone who is not able to be in court is admitted into evidence. No mention was made of the witness’ status as an engineer or that he was an expert testifying in the case. In its charge to the jury on expert testimony, the trial court stated: “The expert that we’re—testimony that we’re dealing with here are medical reports that you will have before you. In weighing the credibility of the experts who in this particular case furnished reports, that is the doctors and medical suppliers, you should apply the same standards to which any other witness is subjected.”

For this court to accept the defendants’ claim that the statements made to the venire panels that the witness was an engineer were prejudicial and that the jury accorded the witness’ testimony more weight would require improper speculation. We cannot speculate, as the defendants would have us do, as to how and why the jury arrived at its verdict. We note that the defendants did not ask for a curative instruction with regard to the remarks made to the venire panels about the witness. “The [defendants], therefore, presumably did not regard those remarks ... as seriously prejudicial at trial.” State v. Chasse, 51 Conn. App. 345, 356, 721 A.2d 1212 (1998), cert. denied, 247 Conn. 960, 723 A.2d 816 (1999). Furthermore, the court stated to the jury in its final charge that the only experts testifying were the doctors and medical suppliers. “Absent evidence to the contrary, we presume that the jury acted in accordance with the instructions given by the court.” Willow Springs Condominium Assn., Inc. v. Seventh BRT Development Corp., 245 Conn. 1, 46, 717 A.2d 77 (1998). We therefore reject the defendants’ claim.

“Moreover, it is well settled that before a party is entitled to a new trial because of an erroneous eviden-tiary ruling, he or she has the burden of demonstrating that the error was harmful. . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result.” (Citation omitted; internal quotation marks omitted.) New England Savings Bank v. Bedford Realty Corp., supra, 238 Conn. 752. The defendants have failed to meet their burden of demonstrating that the allegedly improper evidentiary rulings were likely to have affected the result.

II

The defendants next claim that the trial court improperly denied their motions to set aside the verdict and for judgment notwithstanding the verdict because there was insufficient evidence to support a finding of negligence. We disagree.

“The standard for reviewing the denial of motions to set aside the verdict and for judgment notwithstanding the verdict on evidentiary grounds is clear. Our review of the trial court’s refusal to [grant the motions] requires us to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony. . . . The verdict will be set aside and judgment directed only if we find that the juiy could not reasonably and legally have reached their conclusion.” (Internal quotation marks omitted.) Suarez v. Dickmont Plastics Corp., 242 Conn. 255, 277, 698 A.2d 838 (1997).

The defendants claim that the evidence was insufficient to show that a defective condition existed on the stairs because there was no testimony concerning the portion of the threshold that the plaintiff was standing on when she fell. The defendants claim that because there was insufficient evidence of a defective condition, it follows that there was insufficient evidence of notice of that condition. They further claim that there was insufficient evidence to support the finding of proximate cause because there was no testimony that the area of the step with the worn-off paint caused the plaintiff to fall and, therefore, there was no evidence of a causal relation between any alleged defect and the plaintiffs fall.

“Connecticut subscribes to the common-law view that a landlord is under no obligation or liability to the tenant for personal injuries due to the defective condition of the demised premises or the lack of repair of defects therein in the absence of an agreement, express or implied to the contrary. . . . One of the many exceptions to this rule, however, is where the landlord retains control of a portion of the demised premises. In such a case the landlord must use reasonable care to keep that portion of the premises in a reasonably safe condition. ... In order to demonstrate a breach of this duty the plaintiff must show that the defendants had actual knowledge of the defect or that they were chargeable with constructive notice of it, because, had they exercised a reasonable inspection of the premises, they would have discovered it.” (Citations omitted.) Pollack v. Gampel, 163 Conn. 462, 468, 313 A.2d 73 (1972).

To prove her negligence claim, the plaintiff also had to demonstrate that the defendants’ negligence was the proximate cause of her injuries. “[T]he test of proximate cause is whether the [defendants’] conduct is a substantial factor in bringing about the plaintiffs injuries .... The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection.” (Internal quotation marks omitted.) Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 231 Conn. 168, 182, 646 A.2d 195 (1994). “The question of proximate causation generally belongs to the trier of fact because causation is essentially a factual issue. ... It becomes a conclusion of law only when the mind of a fair and reasonable [person] could reach only one conclusion; if there is room for reasonable disagreement the question is one to be determined by the trier as a matter of fact.” (Citations omitted; internal quotation marks omitted.) Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 611, 662 A.2d 753 (1995).

We conclude that the evidence adduced at trial was sufficient to support the jury’s determination that the defendants were negligent. The plaintiff alleged that a defective condition existed on the exterior steps and that she fell on them because of a worn metal plate affixed to the threshold step and an uneven surface that sloped and was unusually slippery. The plaintiff introduced as exhibits photographs, which she testified were a fair and accurate representation of the steps in question as they existed at the time of her fall. The photographs showed a worn metal sill and a slope to the steps. A witness who lived with the plaintiff on the premises testified that the condition of the stairs as shown in the photographs existed for at least six months prior to the plaintiffs fall and that the stairs were slippery. Another witness also testified that the metal surface where the paint had worn away was slippery and that the step sloped downward. Although the plaintiff did not testify as to the exact location of the step she was on when she fell, she testified that when she stepped on the top threshold of the steps she slipped and fell.

There also was evidence that the defendant Bernard LaValley was on the property on a number of occasions, that he undertook responsibility for constructing and maintaining other stairs, and that two years prior to the plaintiffs fall he painted the sill up to the threshold but not the threshold. He testified that the metal sill was not slippery.

On the basis of the evidence, the jury reasonably could have concluded that the defendants had constructive notice of the defective condition of the stairs where the plaintiff fell, that they were negligent in failing to keep the premises in a reasonably safe condition and that their negligence was aproxímate cause of the plaintiffs injuries. “The right to a jury trial is fundamental in our judicial system, and . . . the right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict, since the constitutional right of trial by jury includes the right to have issues of fact as to which there is room for a reasonable difference of opinion among fair-minded [persons] passed upon by the jury and not by the court. Camp v. Booth, 160 Conn. 10, 13, 273 A.2d 714 (1970).” (Internal quotation marks omitted.) Donahue v. State, 27 Conn. App. 135, 140, 604 A.2d 1331 (1992). The trial court properly denied the defendants’ motions.

Ill

The defendants’ final claim is that the trial court improperly failed to reduce the economic damages award by the amount of collateral source payments received by the plaintiff. We are not persuaded.

The following additional facts are necessary to our resolution of this claim. The jury returned a verdict in favor of the plaintiff and awarded economic damages in the amount of $37,000 and noneconomic damages in the amount of $75,000 for a total damages award of $112,000. The jury, however, found the plaintiff to be 30 percent negligent and, therefore, $33,600 was deducted from the total award as the amount attributable to the plaintiffs percentage of negligence, thereby reducing the total damages award to $78,400.

After the jury returned its verdict, the court held a hearing to determine the amount, if any, of the damages award that should be reduced on account of collateral benefits received by the plaintiff. Both parties stipulated that the amount of $4275.15 was received by the plaintiff from a collateral source in connection with a hospital bill. The defendants requested the trial court to deduct this amount from the economic damages award or, in the alternative, that 70 percent of $4275.15, or $2992.61, the amount representing the collateral source less the portion attributable to the plaintiffs percentage of negligence, be deducted from the economic damages award.

The trial court concluded that no reduction in the economic damages award was warranted by the applicable statute, General Statutes § 52-225a (a). The trial court explained that because the plaintiff had received the amount of $4275.15 from an outside source that was less than the amount of the reduction in the plaintiffs economic damages attributable to her percentage of negligence, namely $11,100, the award should not be reduced. On appeal, the parties do not dispute the amount the plaintiff received in collateral benefits or that the amount received was from a collateral source as defined by General Statutes § 52-225b.

The issue we must decide is whether the defendants were entitled to a reduction in the economic damages award, which requires an interpretation of § 52-225a. This court is not aware of any case resolving this issue, nor have the parties offered one. In deciding this issue, we are guided by well defined principles of statutory interpretation. “Statutory construction is a question of law and therefore our review is plenary.” (Internal quotation marks omitted.) Alvarado v. Black, 248 Conn. 409, 414, 728 A.2d 500 (1999). “[T]he process of statutory interpretation involves a reasoned search for the intention of the legislature. . . . Wright Bros. Builders, Inc. v. Dowling, 247 Conn. 218, 226, 720 A.2d 235 (1998); State v. Albert, 50 Conn. App. 715, 719, 719 A.2d 1183 (1998), cert. granted in part, 247 Conn. 954, 723 A.2d 810 (1999). In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of this case .... In seeking to determine that meaning, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter. ... It is the duty of the court to interpret statutes as they are written . . . and not by construction read into statutes provisions which are not clearly stated. . . . Luce v. United Technologies Corp., 247 Conn. 126, 133, 717 A.2d 747 (1998).

“Moreover, principles of statutory construction require the court to construe a statute in a manner that will not frustrate its intended purpose or lead to an absurd result. Turner v. Turner, 219 Conn. 703, 712, 595 A.2d 297 (1991). The court must avoid a construction that fails to attain a rational and sensible result that bears directly on the purpose the legislature sought to achieve.” (Internal quotation marks omitted.) New Milford Savings Bank v. Jajer, 52 Conn. App. 69, 78-79, 726 A.2d 604 (1999).

We first look to the language of the statute. Section 52-225a (a) provides in relevant part: “In any civil action, whether in tort or in contract, wherein the claimant seeks to recover damages resulting from (1) personal injury or wrongful death occurring on or after October 1, 1987 . . . and wherein liability is admitted or is determined by the trier of fact and damages are awarded to compensate the claimant, the court shall reduce the amount of such award which represents economic damages ... by an amount equal to the total of amounts determined to have been paid under subsection (b) of this section less the total of amounts determined to have been paid under subsection (c) of this section, except that there shall be no reduction for ... (2) that amount of collateral sources equal to the reduction in the claimant’s economic damages attributable to his percentage of negligence pursuant to section 52-572h.”

“Prior to the enactment of § 52-225ain 1985, Connecticut adhered to the common-law collateral source rule, which provides that ‘a defendant is not entitled to be relieved from paying any part of the compensation due for injuries proximately resulting from his act where payment [for such injuries or damages] comes from a collateral source, wholly independent of him. . . . The basis for our well-established collateral source rule is that a wrongdoer shall not benefit from a windfall from an outside source.’ ... In 1985, however, the legislature by enacting Public Acts 1985, No. 85-574 (P.A. 85-574), abolished the common-law collateral source rule in medical malpractice actions.” (Citation omitted.) Alvarado v. Black, supra, 248 Conn. 416. In 1986, § 52-225a was extended by No. 86-338, § 4, of the 1986 Public Acts, thereby abolishing the common-law collateral source rule in all personal injury actions. Id., 417. “The language and legislative history of § 52-225a clearly indicate that § 52-225a was intended to prevent plaintiffs from obtaining double recoveries, i.e., collecting economic damages from a defendant and also receiving collateral source payments.” Id.

Here, the defendants claim that § 52-225a does not prohibit a collateral source deduction unless and until the amount of a collateral source exceeds the deduction from the economic damages award due to the plaintiffs comparative negligence. Thus, they claim that they are entitled to a reduction in the economic damages award of $4275.15, the amount agreed to by the parties as representing the collateral source payments received by the plaintiff, less 30 percent attributable to the plaintiffs comparative negligence.

The trial court, in a comprehensive and well reasoned oral decision, set forth its reasoning for its decision. The court explained that of the $37,000 awarded the plaintiff in economic damages for medical expenses, $11,100 was deducted on account of the 30 percent attributable to the plaintiffs own negligence. Thus, the plaintiff actually received $25,900 from the defendants, resulting in a shortfall to the plaintiff. The court reasoned that if $4275.15 were added to $25,900, the plaintiff would still lack approximately $7000.

The trial court explained the statute at issue was designed to prevent double recovery by a plaintiff. Here, because the plaintiff was receiving less than 100 percent of her economic damages, there was no double recovery. The court stated that the only rational way to read the statute is that it absolutely prohibits a plaintiff from collecting more than the total amount of economic damages from the combination of all sources that are available, but the statute allows individuals the benefit of their own prudence in providing themselves with a collateral source.

We agree with the trial court’s interpretation of the statute. The plain language of the statute prohibits a reduction in the economic damages award for “that amount of collateral sources equal to the reduction in the claimant’s economic damages attributable to his percentage of negligence . . . .” General Statutes § 52-225a (a) (2). We interpret § 52-225a (a) to mean that when the amount of the collateral sources received by the plaintiff is less than or equal to the amount of the reduction in the claimant’s economic damages attributable to the claimant’s own negligence, there shall be no collateral source reduction in the award.

This interpretation comports with the purposes the legislation was designed to achieve. The statute was enacted to abolish the common-law collateral source rule that permitted a plaintiff to receive economic damages from a defendant along with collateral source payments, thereby resulting in a possible double recovery. The legislation reflects “the understanding that the entitlement of an injured party to be made whole does not include an entitlement to a double recovery for the same loss.” Nash v. Yap, 247 Conn. 638, 649, 726 A.2d 92 (1999). Our Supreme Court explained the competing concerns underlying collateral source recovery in Haynes v. Yale-New Haven Hospital, 243 Conn. 17, 23-24, 699 A.2d 964 (1997) (en banc). “The first is that a tortfeasor should not be rewarded by collateral sources that have benefited an injured party. This principle recognizes the social value in making the tortfeasor pay the injured party even for already ‘compensated’ losses in order to prevent a windfall to the tortfeasor . . . and to fulfill the general tort policy of deterring similar toitfeasors from wrongful conduct. . . . The second, competing principle is that a litigant may recover just damages for the same loss only once. The social policy behind this concept is that it is a waste of society’s economic resources to do more than compensate an injured party for a loss and, therefore, that the judicial machinery should not be engaged in shifting a loss in order to create such an economic waste.” (Citations omitted.) Id.

Here, the statute as written reflects an intention by the legislature not only to prohibit a double recovery by a plaintiff, but also to provide that in a situation where an award already is reduced by an amount attributable to a plaintiffs percentage of negligence, a defendant is not to receive a benefit or windfall of a further reduction in the award on account of benefits received by a plaintiff due to the plaintiffs prudence. The legislature abolished the common-law collateral source rule when it enacted § 52-225a (a), and “[i]t is a rule of statutory construction that statutes in derogation of the common law should be strictly construed so as not to exceed, modify or enlarge [their] provisions beyond [their] scope by the mechanics of statutory construction.” Brennan v. Burger King Corp., 46 Conn. App. 76, 82-83, 698 A.2d 364 (1997), aff'd, 244 Conn. 204, 707 A.2d 30 (1998). Our construction of the statute would not frustrate or enlarge its intended puipose.

We conclude that the trial court properly applied the provisions of § 52-225a (a) and denied the defendants’ motion for a collateral source reduction in the award.

The judgment is affirmed.

In this opinion the other judges concurred.

      A limited portion of the witness’ deposition testimony was introduced into evidence. The portion introduced reads as follows:
      “[Plaintiffs Counsel]: Mr. Fitzgerald, okay, on April 8th, 1993?
      “[Witness]: Yes, that’s when I went to the premises.

        -fi

      “A. Yes, that’s when I went to the premises. I felt or sensed the surface with my foot and pretty much understood what kind of results I’m going to take, which I would have done here. I would have felt the metal surface and then felt the painted metal surface which what confronted my comment in my notes that the sides were okay but worn off paint was slippery.
      “Q. How about the footwear? Does that play any part in the slipperiness of the step?
      “A. Yes.
      “Q. Do you know what [the plaintiff] was wearing at the time of her fall?
      “A. She had—she was wearing sneakers.
      “Q. What type of footwear were you wearing?

        “A. Probably a soft-soled shoe. The outer portion of the sill contained a significant slope.
      “Q. Okay. Can you point me to the photograph which best depicts that slope?
      “A. Probably exhibit six, which shows the outer portions sloping downward.
      “Q. Downward away from the house?
      “A. Away from the house.
      “Q. Thank you, Mr. Fitzgerald.”

       There is no indication that the defendants’ counsel was not present at the taking of the deposition or that the defendants were precluded from cross-examining the witness at the deposition. Even if we were to review the defendants’ claim, it would fail because Practice Book § 13-31 (a) provides that deposition testimony that would be admissible if the witness were present and testifying may be used in a civil action “against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof . . .


source: Caselaw Access Project

author: SULLIVAN, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. JERMYN REED
    (AC 17543)
    Landau, Schaller and Sullivan, Js.
    Argued June 7
    officially released October 5, 1999

      James B. Streeto, special public defender, for the appellant (defendant).

      Frederick W. Fawcett, assistant state’s attorney, with whom, on the brief, were Jonathan C. Benedict, state’s attorney, and Cornelius P. Kelly, assistant state’s attorney, for the appellee (state).
   Opinion

SULLIVAN, J.

The defendant, Jermyn Reed, appeals from the judgment of guilty, rendered after a jury trial, of three counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and three counts of risk of injury to a child in violation of General Statutes (Rev. to 1995) § 53-21. The defendant claims that the trial court improperly (1) denied his motions for judgment of acquittal because there was insufficient evidence to support his convictions of sexual assault in the first degree beyond a reasonable doubt, (2) exercised jurisdiction with respect to the sexual assault charges because the information was defective, (3) expanded and amended the information and (4) instructed the jury on reasonable doubt and the presumption of innocence. We affirm the trial court’s judgment.

The jury reasonably could have found the following facts. During July and August, 1995, R, who lived in New York, visited his cousins, L and J, at their home in Connecticut. L, the son of the defendant’s sister, was seven years old and J, her daughter, was nine. R, the son of the defendant’s cousin, also was seven years old. The defendant often visited the home and babysat for the victims. The defendant came to the attic room where R and L slept and, as R testified, “sucked our Tilly [penises],” “licked our butts” and “[stuck] his Tilly [penis] in my, in our butts.” As L testified, the defendant “[sucked] on [L’s] private,” “[p]ut his private in my butt” and “[told] me to suck [R’s] private.” The sexual assaults continued after R returned to New York. The defendant warned L that if he told anyone about the assaults “he was going to give [L] a whopping.” The defendant also “tried to put his private into [J’s] bottom and he licked [J’s] private.” The victims told their parents about the incidents. The defendant admitted to his sister that he had sexually assaulted the children.

I

The defendant first claims that there was insufficient evidence to find him guilty of sexual assault in the first degree. He argues that the state failed to prove an essential element of the crime, namely, that he was more than two years older than the victims, because there was no direct evidence of his birth date. We disagree.

“Our Supreme Court has stated: In reviewing [a] sufficiency [of evidence] claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. . . . State v. Radzvilowicz, 47 Conn. App. 1, 16, 703 A.2d 767, cert. denied, 243 Conn. 955, 704 A.2d 806 (1997).

“The evidence must be construed in a light most favorable to sustaining the jury’s verdict. State v. Carter, [196 Conn. 36, 44, 490 A.2d 1000 (1985)]. It is within the province of the jury to draw reasonable and logical inferences from the facts proven. Id.; State v. Williams, 169 Conn. 322, 336, 363 A.2d 72 (1975). The jury may draw reasonable inferences based on other inferences drawn from the evidence presented. State v. Williams, 202 Conn. 349, 355, 521 A.2d 150 (1987); State v. Carter, supra, 44-45; State v. Gabriel, 192 Conn. 405, 425, 473 A.2d 300 (1984) . . . . Our review is a fact based inquiry limited to determining whether the inferences drawn by the jury are so unreasonable as to be unjustifiable. .'. . State v. Ford, 230 Conn. 686, 692, 646 A.2d 147 (1994). We note that the probative force of the evidence is not diminished because it consists, in whole or in part, of circumstantial evidence rather than direct evidence. State v. Robinson, 213 Conn. 243, 254, 567 A.2d 1173 (1989). State v. Lago, 28 Conn. App. 9, 30, 611 A.2d 866, cert. denied, 223 Conn. 919, 614 A.2d 828 (1992). It has been repeatedly stated that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned. State v. Haddad, 189 Conn. 383, 390, 456 A.2d 316 (1983); State v. Perez, 183 Conn. 225, 227, 439 A.2d 305 (1981). It is not one fact, but the cumulative impact of a multitude of facts which establishes guilt in a case involving substantial circumstantial evidence. State v. Perez, supra, 227. . . . [T]he inquiry into whether the record evidence would support a finding of guilt beyond a reasonable doubt does not require a court to ask itself whether it believes that the evidence . . . established guilt beyond a reasonable doubt. . . . Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . State v. Boykin, 27 Conn. App. 558, 563-64, 609 A. 2d 242, cert. denied, 223 Conn. 905, 610 A.2d 179 (1992).” (Internal quotation marks omitted.) State v. Rozmyslowicz, 52 Conn. App. 149, 152-53, 726 A.2d 142 (1999).

The ages of the victims at the time of the assaults in 1995 were seven, seven and nine. The state, therefore, had to prove that the defendant was at least twelve years old at the time. The defendant’s sister testified that in 1994 the defendant was enrolled in Miles College in Alabama. The defendant’s mother testified that in 1994 he was employed by the state of Connecticut at its emissions testing station in Stratford. Viewing this evidence in the light most favorable to sustaining the verdict, we conclude that the jury reasonably could have determined beyond a reasonable doubt that the defendant was at least twelve years old. Indeed, this evidence would support a finding that he was substantially older than twelve.

II

The defendant next argues that the trial court lacked jurisdiction because the information failed to charge the defendant properly with sexual assault in the first degree. We disagree.

Although the defendant raises this issue for the first time on appeal, a jurisdictional challenge based on a defective information nonetheless is reviewable. Practice Book § 41-5; State v. McMurray, 217 Conn. 243, 249, 585 A.2d 677 (1991).

Additional facts are necessary to our resolution of this claim. The state initially charged the defendant in 1996 in a short form information with violations of “Sec. 53a-70.” Before the defendant filed a motion for a bill of particulars, however, the state on April 9, 1996, filed a long form information, charging that the defendant “engaged in sexual intercourse with another person and such other person was under thirteen (13) years of age, in violation of section 53a-70 (a) (2) of the Connecticut General Statutes.”

“When reviewing a claim, not raised prior to the verdict, that an information fails to charge all the essential elements of an offense, we must construe the information liberally in favor of the state. See Hagner v. United States, 285 U.S. 427, 433, 52 S. Ct. 417, 76 L. Ed. 861 (1932); United States v. Hooker, 841 F.2d 1225, 1228-29 (4th Cir. 1988); United States v. Previte, 648 F.2d 73, 80 (1st Cir. 1981); United States v. Fistel, 460 F.2d 157, 161 (2d Cir. 1972). Under the applicable standard of review, a conviction based upon a challenged information is valid unless the information is so obviously defective that by no reasonable construction can it be said to charge the offense for which conviction was had. United States v. Fistel, supra, 161, quoting United States v. Thompson, 356 F.2d 216, 226 (2d Cir. 1965), cert. denied, 384 U.S. 964, 86 S. Ct. 1591, 16 L. Ed. 2d 675 (1966).” (Internal quotation marks omitted.) State v. McMurray, supra, 217 Conn. 250.

“When the state’s pleadings have ‘informed the defendant of the charge against him with sufficient precision to enable him to prepare his defense and to avoid prejudicial surprise, and were definite enough to enable him to plead his acquittal or conviction in bar of any future prosecution for the same offense, they have performed their constitutional duty.’ State v. Sumner, 178 Conn. 163, 168, 422 A.2d 299 (1979). We have held that ‘[u]nder our practice, it is sufficient for the state to set out in the information the statutory name of the crime with which the defendant is charged, leaving to the defendant the burden of requesting a bill of particulars more precisely defining the manner in which the defendant committed the offense.’ State v. Ruiz, 171 Conn. 264, 270, 368 A.2d 222 (1976); State v. Sumner, supra, 167; State v. Davis, 141 Conn. 319, 320-21, 106 A.2d 159 (1954); Practice Book §§ 618, 830-833 [now §§ 36-13, 41-20 through 41-22]. While a more detailed information might have been salutary, there was no constitutional infirmity in the state’s practice here, nor in the requirement that the defendant request a more particularized allegation if he desires one. State v. Davis, supra, 321; see also State v. Brown, 163 Conn. 52, 61, 301 A.2d 547 (1972).” State v. Vincent, 194 Conn. 198, 205, 479 A.2d 237 (1984).

Neither information in this case specifically articulated each of the elements required to prove sexual assault in the first degree. The long form information, however, provided the defendant with the exact section and subsection of the statute under which he was charged. The information also undisputedly states the time and place that the alleged events occurred. That information was filed almost one year before trial. We conclude that a reasonable construction of the information shows that it charged the defendant with the offense for which he was convicted. Moreover, the information was sufficiently precise to enable him adequately to prepare his defense. Because the information was adequate, we conclude that the trial court had jurisdiction over this matter.

III

The defendant argues that the trial court improperly expanded and amended the information when it instructed the juiy on all three elements of sexual assault in the first degree under § 53a-70. He claims that because the information was defective in that it omitted the requirement that the actor must be more than two years older than the victim, the court improperly amended and expanded the information by charging the jury on all of the statutory elements. There was no amendment here. The court instructed the jury as the information indicated. Because we concluded in part II of this opinion that the information properly charged the defendant, we find no merit to this claim.

IV

The defendant finally argues that the trial court improperly instructed the juiy on reasonable doubt and the presumption of innocence. Because he failed to preserve his claims by requesting a charge or by objecting to the charge given by the trial court, the defendant seeks review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), or the plain error rule pursuant to Practice Book § 60-5.

A

With respect to the trial court’s instruction on reasonable doubt, the defendant challenges two statements that he claims dilute or undermine the state’s burden of proof: (1) “It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence” and (2) “nor is it a doubt suggested by the ingenuity of counsel or of a juror not warranted by the evidence.”

Our Supreme Court, considering these same statements, has held that they do not meet the requirements of Golding or the plain error standard. State v. Hines, 243 Conn. 796, 816-20, 709 A.2d 522 (1998); State v. Taylor, 289 Conn. 481, 504-505, 687 A.2d 489 (1996), cert. denied, 521 U.S. 1121, 117 S. Ct. 2515, 138 L. Ed. 2d 1017 (1997); see State v. Cansler, 54 Conn App. 819, 832-34, 738 A.2d 1095 (1999) (challenge to ingenuity of counsel instruction fails under third prong of Golding). We, therefore, conclude that this claim does not merit reversal under Golding or the plain error rule.

B

With respect to the trial court’s instruction on the presumption of innocence, the defendant claims that the court improperly instructed the jury that the presumption of innocence terminates prior to the end of the trial. We review this claim pursuant to Golding and conclude that the court’s instruction was proper.

“When reviewing [a] challenged jury instruction . . . 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 rules of law. ... As long as [the instructions] are correct in law, adapted to the issues and sufficient for the guidance of the jury ... we will not view the instructions as improper. . . . State v. Denby, 235 Conn. 477, 484-85, 668 A.2d 682 (1995).” (Internal quotation marks omitted.) State v. Delgado, 247 Conn. 616, 625, 725 A.2d 306 (1999). “It is axiomatic that in reviewing a challenged portion of a jury charge, we must consider the charge as a whole and its effect in guiding the jury to a proper verdict. . . . We do not scrutinize an individual section of an instruction in artificial isolation from the overall charge in a microscopic search for possible error.” (Internal quotation marks omitted.) State v. Ryan, 53 Conn. App. 606, 609-10, 733 A.2d 273 (1999).

Having considered the instructions in their entirety, we conclude that the court’s charge on the presumption of innocence conveyed to the jury that the presumption endures for the duration of the trial and that it may be overcome only after the state proves the defendant’s guilt beyond a reasonable doubt. The defendant’s claim therefore fails to meet the third prong of Golding because he has not shown that a constitutional violation clearly exists and clearly deprived him of a fair trial. See id., 614 (claim of improper presumption of innocence instruction fails under third prong of Golding).

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-70 (a) provides in relevant part: “A person is guilty of sexual assault in the first degree when such person . . . (2) engages in sexual intercourse with another person and such other person is under thirteen years of age and the actor is more than two years older than such person . . .

       General Statutes (Rev. to 1995) § 53-21 provides: “Any person who wilfully or unlawfully causes or permits any child under the age of sixteen years to be placed in such a situation that its life or limb is endangered, or its health is likely to be injured, or its morals likely to be impaired, or does any act likely to impair the health or morals of any such child, shall be fined not more than five hundred dollars or imprisoned not more than ten years or both.”

       Contrary to the defendant’s assertion, we do not read State v. Jason B., 248 Conn. 543, 729 A.2d 760 (1999), to require direct evidence of a defendant’s age under General Statutes (Rev. to 1997) § 53a-70 (a) (2), nor is our conclusion in this case inconsistent with Jason B. In Jason B., the court concluded that “two years” as used in the statute refers not to calendar years but rather to the shorter time period measured by the days separating the birth dates of the victim and the defendant. Id., 554. In this case, the circumstantial evidence showed that the defendant was more than two calendar years older than the victims. Thus, there was no need to rely on birth dates.

       Practice Book § 41-5, formerly § 811, provides: “Unless otherwise provided by these rules or statute, all pretrial motions or requests shall be made not later than ten days after the first pretrial conference in the court where the case will be tried, or, with permission of the judicial authority, at such later time as the judicial authority may fix. However, defenses and objections alleging lack of jurisdiction over the offense charged or failure of the information to charge an offense may be raised by the defendant or noticed by the judicial authority at any time during the pendency of the proceedings."

       The trial court’s final instruction stated in relevant part: “In this case, as in all criminal prosecutions, the defendant is presumed to be innocent until proven guilty beyond a reasonable doubt. This presumption of innocence was with this defendant when he was first presented for trial in this case. It continues with him throughout this trial unless and until such time as all evidence produced here in the orderly conduct of the case considered in the light of these instructions of law and deliberated upon by you in the jury room satisfies you beyond a reasonable doubt that he is guilty.
      “The burden to prove the defendant guilty of the crimes with which he is charged is upon the state. The defendant does not have to prove his innocence. This means that the stat e must prove beyond a reasonable doubt each and every element necessary to constitute each crime charged. . . .
      “The meaning of reasonable doubt can be arrived at by emphasizing the word reasonable. It is not a surmise, a guess or mere conjecture, nor is it a doubt suggested by the ingenuity of counsel or of a juror not warranted by the evidence.
      “It is such a doubt as in serious affairs that concern you, you would heed. That is, such a doubt as would cause reasonable men and women to hesitate to act upon the matters of importance. It is not hesitation springing from any feeling of pity or sympathy for the accused or any other persons who might be affected by your decision. It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence. It is a doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence.
      “Proof beyond a reasonable doubt does not mean proof beyond all doubt. The law does not require absolute certainty on the part of the jury before it returns a verdict of guilty. The law requires that after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in the minds of the jurors, as reasonable men and women, areasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted.
      “Proof beyond areasonable doubtis proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion. If two conclusions can reasonably be drawn from the evidence, one of innocence and one of guilt, you must adopt the one of innocence.”

       “ [A] defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the defendant’s claim will fail.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40.


author: SPEAR, J.

text:
    DIME SAVINGS BANK OF WALLINGFORD v. NICHOLAS E. ARPAIA III ET AL.
    (AC 18764)
    O’Connell, C. J., and Foti and Spear, Js.

      Argued April 20
    officially released October 5, 1999

      Sydney T. Schulman, for the appellant (named defendant).

      Stan R. Dombroski, for the appellee (substitute plaintiff).
   Opinion

SPEAR, J.

The trial court opened a judgment of foreclosure by sale and, after denying the named defendant’s request to file an answer, rendered judgment setting a new date for the sale. Thereafter, the named defendant, Nicholas E. Arpaia III, filed an appeal. He claims that the trial court lacked subject matter jurisdiction because the original plaintiff, Dime Savings Bank of Wallingford (Dime), obtained an earlier judgment of foreclosure in this case after it had assigned the note and mortgage to another party. We affirm the judgment of the trial court.

It is not necessary to detail the extensive procedural history of this case. It is sufficient to note that between the original judgment of foreclosure rendered on September 10, 1991, and the trial court’s order of August 6, 1998, which is the subject of this appeal, this case completed the circular odyssey of judgment, bankruptcy stay, termination of stay and judgment several times, interspersed with an earlier appeal to this court.

For purposes of this appeal, the critical and undisputed facts are as follows. Subsequent to the judgment of September 10, 1991, Dime assigned the subject note and mortgage to Leader Federal Bank for Savings (Leader) on August 30, 1994. Leader did not move to substitute itself as the plaintiff until August 18, 1995, although the trial court had rendered a judgment of foreclosure by sale on August 7, 1995. Leader’s motion to substitute itself as the plaintiff was granted on October 30, 1995. Arpaia appealed from the judgment of August 7, 1995. On October 22, 1996, we affirmed the judgment in a per curiam decision, Dime Savings Bank of Wallingford v. Arpaia, 43 Conn. App. 904, 683 A.2d 29 (1996).

On April 8,1998, after the termination of a bankruptcy stay, Leader filed a motion to open the judgment and set a new sale date. On August 6, 1998, the trial court granted Leader’s motion and set a sale date of October 17, 1998. The trial court also denied Arpaia’s request for permission to file an answer to the foreclosure complaint. This appeal followed.

Arpaia claims that because Dime assigned its interest in the mortgage, it did not have standing to request the August 7, 1995 judgment. Consequently, the judgment is invalid because the trial court lacked subject matter jurisdiction. We disagree.

Arpaia’s claim in this appeal is essentially the same as the one made in his first appeal to this court. Arpaia now attempts a collateral attack on the August 7, 1995 judgment in the specific terms of subject matter jurisdiction. General Statutes § 51-197f provides that “[ujpon final determination of any appeal by the Appellate Court, there shall be no right to further review . . . .” Such further review may be sought in the Supreme Court “upon petition by [the] aggrieved party . . . .” General Statutes § 51-197Í. The Supreme Court is not obliged to grant such a petition.

In Arpaia’s first appeal, we affirmed the validity of the trial court’s August 7, 1995 judgment. One of the issues in that appeal was whether the trial court abused its discretion in not opening a judgment that Arpaia claimed was invalid on its face. Arpaia argued that because “Dime acknowledges that it assigned its interest in the mortgage . . . the judgment is invalid on its face.” Although now more specifically delineated as a jurisdictional claim, Arpaia’s assertion here turns on the same alleged defect as the claim made in his previous appeal. The issue has been put to rest.

Even if we assume, arguendo, that the claim here is different from the earlier one, it is without merit. We conclude that the trial court had subject matter jurisdiction and properly rendered its judgment in favor of Dime.

“Where a plaintiff lacks standing to sue, the court is without subject matter jurisdiction.” Steeneck v. University of Bridgeport, 235 Conn. 572, 580, 668 A.2d 688 (1995). “Standing is the legal right to set judicial machineiy in motion. One cannot rightfully invoke the jurisdiction of the court unless [one] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy. ” (Internal quotation marks omitted.) Tomlinson v. Board of Education, 226 Conn. 704, 717, 629 A.2d 333 (1993). Standing, however, “is not a technical rule intended to keep aggrieved parties out of court .... Rather it is a practical concept designed to ensure that courts and parties are not vexed by suits brought to vindicate non-justiciable interests and that judicial decisions which may affect the rights of others are forged in hot controversy, with each view fairly and vigorously represented.” (Internal quotation marks omitted.) Carl J. Herzog Foundation, Inc. v. University of Bridgeport, 41 Conn. App. 790, 794, 677 A.2d 1378 (1996), rev’d on other grounds, 243 Conn. 1, 699 A.2d 995 (1997).

“Standing is established by showing that the party claiming it is authorized by statute to bring suit or is classically aggrieved. ” Steeneck v. University of Bridgeport, supra, 235 Conn. 579. The statute authorizing standing in this case is General Statutes § 52-118, which provides in relevant part that “[an] assignee . . . may sue ... in his own name. ...” The legislature’s use of the word “may” in the statute indicates that an assignee merely has the option to sue in his name. Conversely, as the Supreme Court has stated, an assignee also has the option “to maintain [an] action in the name of his assignor.” Jacobson v. Robington, 139 Conn. 532, 539, 95 A.2d 66 (1953).

In this case, Leader, the assignee and proper plaintiff-in-interest, had standing and rightfully pursued the foreclosure action in the name of Dime, the assignor. On March 8, 1995, Leader’s attorneys filed an appearance in lieu of Dime’s attorneys, thereby replacing them. From that point on, Leader’s attorneys represented Leader’s interests throughout the case. Leader then sought and received permission from the trial court to substitute itself in place of Dime. Therefore, Arpaia’s challenge to the trial court’s subject matter jurisdiction for lack of standing on the part of Dime is without merit.

The judgment is affirmed.

In this opinion the other judges concurred.

       Arpaia failed to brief his claim that the trial court improperly denied his request for permission to file an answer after the judgment was opened. We thus consider the claim abandoned. See Mejia v. Commissioner of Correction, 48 Conn. App. 230, 234, 716 A.2d 894, cert. denied, 245 Conn. 902, 719 A.2d 1163 (1998).

       Whatever irregularities there may have been in the procedure regarding the trial court’s judgment do not rise to the level of a defect in subject matter jurisdiction. “[0]ur rules of practice permit the substitution of parties as the interests of justice require,” and General Statutes § 52-109 allows a substituted plaintiff to enter a case “[w]hen any action has been commenced in the name of the wrong person as plaintiff . . . .” (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Retirement, Management, Group, Inc., 31 Conn. App. 80, 84, 623 A.2d 517, cert. denied, 226 Conn. 908, 625 A.2d 1378 (1993); see also Health Research Group v. Kennedy, 82 F.R.D. 21 (D.D.C. 1979) (substitution of real party in interest as plaintiff permitted to cure lack of standing of original plaintiff). Further, such an omission in a foreclosure action “may be completely cured and cleared by . . . legal proceedings to which the only necessary parties shall be the party acquiring such foreclosure title . . . .” General Statutes § 49-30.
      Any defects in this case were merely circumstantial and curable by General Statutes § 52-123. Section 52-123 provides in relevant part that “[n]o . . . judgment . . . shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court,.” The Supreme Court, has articulated three factors to determine whether an error is a “circumstantial defect under § 52-123: (1) whether the proper defendant had actual notice of the institution of the action; (2) whether the proper defendant knew or should have known that it was the intended defendant in the action; and (3) whether the proper defendant was in any way misled to its prejudice. ” Andover Ltd. Partnership I v. Board of Tax Review, 232 Conn. 392, 397, 655 A.2d 759 (1995). This case satisfies each of the listed factors.


text:
    STATE OF CONNECTICUT v. LARRY MILLER
    (AC 18479)
    Lavery, Spear and Freedman, Js.
    Argued June 2
    officially released October 5, 1999

      Frank P. Cannatelli, for the appellant (defendant).

      James M. Ralls, senior assistant state’s attorney, with whom, on the brief, was Scott Murphy, state’s attorney, for the appellee (state).
   Opinion

SPEAR, J.

The defendant, Larry Miller, appeals from the judgment of conviction, rendered after a trial to the court, of assault in the third degree in violation of General Statutes § 53a-61 and breach of the peace in violation of General Statutes § 53a-181. The defendant claims that the trial court insufficiently canvassed him prior to accepting his waiver of the right to trial counsel. We agree and reverse the judgment of conviction and remand the case for a new trial.

The trial court reasonably could have found the following facts. On December 27,1997, at about 7:45 a.m., the victim was driving her car southbound on the Silas Deane Highway in Rocky Hill. As she slowed to allow a car in front of her to make a right turn into a parking lot, the defendant, who was behind her, slammed on his brakes to avoid hitting her car. The victim then proceeded until she pulled into a coffee shop parking lot on her left.

The defendant followed the victim into the parking lot, got out of his car and charged toward her. The defendant shouted expletives at the victim and shoved her on her shoulders. An off-duty Hartford police officer who saw the encounter came out of the coffee shop and restrained the defendant until on-duty police officers arrived.

During his arraignment, the defendant indicated that he wanted to represent himself at trial. The trial court’s canvass of the defendant was as follows:

“[The Court]: Are you going to get a lawyer?

“[The Defendant]: I feel I don’t need one. I feel I am totally innocent of these charges. This is—

“[The Court]: You have a constitutional right to get a lawyer or not get a lawyer. Do you want to proceed without an attorney?

“[The Defendant]: I feel I don’t need one.”

After trial, the court found the defendant guilty of both charges. This appeal followed. The defendant claims that the trial court’s canvass regarding his waiver of the right to counsel was insufficient to show a knowing, voluntary and intelligent waiver of his constitutional right to counsel and also failed to comply with Practice Book § 44-3. We agree with the defendant’s constitutional claim.

The state asserts that the defendant’s claims are not reviewable because they were not properly preserved at trial and the defendant is not entitled to review pursuant to the plain error doctrine or State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). We conclude that the requirements of Golding are met here because the record is adequate to review what is clearly a claim of constitutional dimension. The third prong of Golding is addressed in our discussion of the merits of the claim, and no harmless error analysis is required.

“A criminal defendant’s right to counsel is a fundamental right guaranteed by both our federal and state constitutions. See Gideon v. Wainwright, 372 U.S. 335, 339-40, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); State v. Gethers, 193 Conn. 526, 533, 480 A.2d 435 (1984).” State v. Oliphant, 47 Conn. App. 271, 276, 702 A.2d 1206 (1997), cert. denied, 244 Conn. 904, 714 A.2d 3 (1998). “In addition, a criminal defendant enjoys the constitutional right to self-representation at trial, provided he knowingly and intelligently waives the right to counsel.” Id., citing Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); see also State v. Webb, 238 Conn. 389, 426, 680 A.2d 147 (1996) (en banc); State v. Day, 233 Conn. 813, 820, 661 A.2d 539 (1995). “Whether there has been an intelligent waiver of the right to counsel depends upon the particular facts and circumstances surrounding each case. . . . The state bears the burden of proving that the right to counsel was knowingly and intelligently waived.” State v. Frye, 224 Conn. 253, 260, 617 A.2d 1382 (1992).

In this case, the trial court made no inquiry whatsoever to ascertain whether the defendant was knowingly and intelligently waiving his right to counsel. “Waiver of the l ight to counsel will not be presumed or inferred from a silent record. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938).” State v. Frye, supra, 224 Conn. 260; see Carnley v. Cochran, 369 U.S. 506, 516, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962).

We conclude that the trial court’s canvass of the defendant was insufficient and failed to satisfy the constitutional requirements for a knowing and intelligent waiver of the right to counsel. We do not need to engage in a harmless error analysis because “[t]he right to counsel is so basic that its violation mandates reversal even if no particular prejudice is shown and even if there is overwhelming evidence of guilt. State v. Varric-chio, 10 Conn. App. 265, 270, 522 A.2d 843 (1987); see also United States v. Decoster, 624 F.2d 196, 201 (D.C. Cir. 1979).” (Internal quotation marks omitted.) State v. Frye, supra, 224 Conn. 262. Accordingly, the trial court’s failure to conduct an adequate canvass to ensure that the defendant’s waiver of the right to counsel was made knowingly and intelligently requires that the defendant be granted a new trial.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       The defendant appeared pro se in the trial court but was represented by counsel in this appeal.

       The defendant also claims that the trial court abused its discretion when it suspended his driver’s license, imposed random drug screening at sentencing as a further condition of probation, and failed to waive his fees, costs and security in taking this appeal. Because we resolve the first issue in the defendant’s favor, we need not address his other claims.

       In State v. Golding, supra, 213 Conn. 239-40, our Supreme Court held that “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” Under the circumstances of this case, we elect to review the defendant’s constitutional claim even though he has not furnished us with a Golding analysis. In State v. Waz, 240 Conn. 365, 371 n.11, 692 A.2d 1217 (1997), our Supreme Court reviewed an unpreserved claim that a canine sniff of the defendant’s parcel constituted a search under the Connecticut constitution, even though the defendant did not request Golding review.


author: O’CONNELL, C. J.

text:
    MARTIN TARTAGLINO v. DEPARTMENT OF CORRECTION
    (AC 18568)
    O’Connell, C. J., and Foti and Lavery, Js.
    Argued May 25
    officially released October 5, 1999

      Paul S. Ranando, for the appellant (plaintiff).

      Matthew I. Levine, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellee (defendant).
   Opinion

O’CONNELL, C. J.

The plaintiff, Martin Tartaglino, appeals from the decision of the workers’ compensation review board (board) affirming the commissioner’s denial of his claim for temporary partial disability benefits. The plaintiff contends that the commissioner improperly (1) determined that his stress related symptoms were not the result of his present employment conditions and (2) failed to accept the opinion and conclusions of the commissioner’s examining physician. We affirm the decision of the board.

The following facts are necessary to the disposition of this appeal. The plaintiff began his employment as a correction officer with the state of Connecticut in 1982. lie was initially assigned to the Litchfield correctional facility (Litchfield) for one month during job training and then was transferred to the Cheshire correctional facility (Cheshire) where he worked for five years. The plaintiff returned to work at Litchfield in 1987.

In 1989, the Litchfield facility experienced overcrowding and, on occasion, guards were placed in situations in which they faced potential harm from inmates. As a result, the plaintiff began to experience work-related stress. The plaintiff saw a psychotherapist for approximately one year in an effort to combat insomnia and panic attacks. In 1992, Litchfield’s security level was decreased from level four to level two when it became a drug rehabilitation center. The institution was operated differently and housed a different type of inmate. The Litchfield work environment was virtually stress free, and the plaintiff’s symptoms completely disappeared.

In 1993, it was announced that the Litchfield drug treatment center would be closed and the plaintiff would be transferred to Cheshire, a level four facility. After the notification of his impending transfer, the plaintiff again began to experience stress related symptoms. In an effort to avoid being transferred, the plaintiff pursued administrative avenues that included, inter alia, requesting reassignment or a leave of absence. Finally, he filed a grievance with his union. All attempts were unsuccessful, and the plaintiff voluntarily tendered his resignation on Litchfield’s last day of operation.

Subsequently, the plaintiff brought this workers’ compensation claim seeking temporary partial disability benefits. The commissioner concluded that the plaintiffs stress did not arise out of or in the course of his employment and dismissed the claim. The plaintiff then appealed to the board, which affirmed the commissioner’s decision. This appeal followed.

I

The plaintiff first claims that the commissioner improperly found that the plaintiffs stress related symptoms were not the result of his employment duties. “The determination of whether an injury arose out of and in the course of employment is a question of fact for the commissioner.” Spatafore v. Yale University, 239 Conn. 408, 418, 684 A.2d 1155 (1996). “The appropriate standard applicable to the board when reviewing a decision of a commissioner is well established. [T]he review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is obligated] to hear the appeal on the record and not retry the facts. . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts.” (Internal quotation marks omitted.) Kolomiets v. Syncor International Corp., 51 Conn. App. 523, 526-27, 723 A.2d 1161, cert. granted on other grounds, 248 Conn. 906, 731 A.2d 308 (1999).

The role of this court “is to determine whether the review [board’s] decision results from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Aurora v. Miami Plumbing & Heating, Inc., 6 Conn. App. 45, 47, 502 A.2d 952 (1986).

Entitlement to workers’ compensation benefits does not attach upon a mere request for payment. There must be an injury that (1) arose out of the plaintiffs employment and (2) occurred in the course of his employment. Mora v. Aetna Life & Casualty Ins. Co., 13 Conn. App. 208, 212, 535 A.2d 390 (1988).

An injury “ ‘[a]rising out of and in the course of his employment’ means an accidental injury happening to an employee . . . while he has been engaged in the line of his duty in the business or affairs of the employer upon the employer’s premises, or while engaged elsewhere upon the employer’s business or affairs by the direction, express or implied, of the employer . . . .” General Statutes § 31-275 (1). To come within the course of employment, an injury must occur within the period of employment and at a place where the employee may be while he is reasonably fulfilling the duties of the employment. McNamara v. Hamden, 176 Conn. 547, 556, 398 A.2d 1161 (1979).

In the present case, the record supports the commissioner’s finding that the plaintiff did not experience any stress while fulfilling his duties in the months leading up to his transfer. Moreover, before notification of the transfer had been communicated to the plaintiff his work record was exemplary, his absenteeism very low and his performance ratings very high. The plaintiff admitted that he had never missed a full day of work at Litchfield due to stress. In light of this evidence, the commissioner found that while the plaintiff was at his position in the Litchfield facility, he did not experience any stress and it was only after he received notification of his imminent transfer that stress related symptoms surfaced.

The defendant, the department of correction, argues, and we agree, that the commissioner correctly determined that the plaintiffs stress was not the result of his employment duties or an activity that was incidental to his employment. Administrative policy decisions to open or close a facility or to arrange a transfer of an employee are not considered to be in the regular course of the employee’s duties or incidental to his employment. As this court has previously stated: “[T]he term employer policy relates not to the employer’s intent with regard to a single employee, but to its intentions regarding either its employees generally or discrete classes of employees.” (Internal quotation marks omitted.) Fulco v. Norwich Roman Catholic Diocesan Corp., 27 Conn. App. 800, 806-807, 609 A.2d 1034 (1992), appeal dismissed, 226 Conn. 404, 627 A.2d 931 (1993).

In sum, the stress related symptoms experienced by the plaintiff were not the result of his employment duties nor did they result from an activity that he regularly engaged in or that was incidental to his employment. The plaintiffs stress was caused by the possibility of a future transfer and, therefore, does not fall within the scope of his employment duties. The board properly concluded that the commissioner reasonably could have found that the plaintiffs stress did not arise out of or in the course of his employment.

II

The plaintiffs second claim is that the board failed to accept the opinions and conclusions of the commissioner’s examining physician. The commissioner heard conflicting testimony as to the state of the plaintiffs mental health. The commissioner ordered the plaintiff to undergo an examination by Mark Rubenstein, a psychiatrist, who concluded that the plaintiff was suffering from an anxiety disorder causally related to the nature of his work setting. The commissioner also heard testimony from Richard Nilson, a psychiatrist, whose opinion was that the plaintiff did not presently exhibit psychological problems, but would, in all likelihood, exhibit them if he were to return to work. The plaintiff also was examined by Kenneth Selig, another psychiatrist, who stated that the plaintiff had an anxiety disorder that was substantially related to his employment but did not prevent him from performing his duties as a correction officer.

It is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony. State v. Blades, 225 Conn. 609, 629, 626 A.2d 273 (1993). The trier may accept or reject, in whole or in part, the testimony of an expert. Smith v. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981).

The plaintiff argues that the commissioner failed to accept the conclusion of the physician ordered by the commissioner himself to examine the plaintiff. Even when the plaintiff has been examined pursuant to General Statutes § 31-294Í (a); this court has held that it is still “within the commissioner’s discretion to credit all, part or none of [the ordered psychiatrist’s] opinion, especially where several other medical opinions attributed at least some of the responsibility for the [condition at issue] . . . .” Gillis v. White Oak Corp., 49 Conn. App. 630, 638, 716 A.2d 115, cert. denied, 247 Conn. 919, 722 A.2d 806 (1998).

“Because we are required to afford great deference to the commissioner’s conclusion . . . we must interpret [the commissioner’s finding] with the goal of sustaining that conclusion in light of all of the other supporting evidence.” (Internal quotation marks omitted.) Weiss v. Chesebrough-Ponds USA Co., 51 Conn. App. 106, 110, 719 A.2d 1225 (1998). As we have made abundantly clear in the past, it would be improper for the board to disregard the commissioner’s findings and substitute its preference regarding testimony.

The decision of the workers’ compensation review board is affirmed.

In this opinion the other judges concurred.

       The Litchfield and Cheshire facilities were designated as level four security. Each correctional facility is graded at a particular security level; the minimum security level is one, whereas maximum security is level five.

       The legislature directly addressed this issue in 1993 when it specifically excluded a mental or emotional impairment that results from a personnel action, including but not limited to a transfer, promotion, demotion or termination. See General Statutes (Rev. to 1993) § 31-275 (16) (B) (iii), as amended by Public Acts 1993, No. 93-228, § 1. This statute became effective July 1, 1993, after the plaintiff sustained his alleged injury.

       General Statutes § 31-294f (a) provides in relevant part: “An injured employee shall submit himself to examination by a reputable practicing physician or surgeon, at any time while claiming or receiving compensation, upon the reasonable request of the employer or at, the direction of the commissioner. . . .”