text:
    Kathleen Guzze et al. v. New Britain General Hospital et al.
    (5907)
    (6187)
    Borden, Daly and Norcott, Js.
    Argued May 12
    decision released September 27, 1988

      Kimball Haines Hunt, with whom, on the brief, was John Serrano, for the appellant (plaintiff William Guzze).

      April Haskell, for the appellee (defendant Joseph Welna).
   Daly, J.

The plaintiffs instituted this malpractice action against the defendants for failure properly to diagnose and treat the named plaintiffs breast cancer. From two summary judgments rendered in favor of the defendant physician, Joseph Welna, the plaintiff has appealed. The plaintiff claims that the trial court erred (1) in granting the motion in limine precluding an expert witness, and (2) in granting the summary judgments.

The following facts are relevant to this appeal. The action against the defendants was commenced by complaint dated August 12, 1985. The defendant filed interrogatories dated November 1, 1985, which included interrogatory number 23, a request for disclosure and production of the names and addresses of all experts expected to testify. The plaintiff, who was granted until March 3, 1986, to respond, neither responded nor filed an objection to interrogatory number 23.

On July 8, 1986, the defendant filed a motion in limine barring the plaintiff from presenting any expert testimony, or, alternatively, seeking an order compelling the plaintiff to answer the interrogatory. Although the plaintiff later stated that he thought he had supplied the name of the expert, he failed to conform to the rest of the interrogatory, namely, to supply the proposed subject matter, the factual basis of the opinion, and the substance of facts and opinions. On September 8, 1986, the trial court ruled that unless the plaintiff complied within ten days, the motion in limine would be granted. The matter was marked over to September 29, 1986, and was subsequently granted on that date because the plaintiff failed to comply.

On February 19, 1987, the trial court granted the defendant’s motion for summary judgment on the basis that the plaintiff lacked expert testimony as to the standard of care and the proximate cause of the death of the decedent, and the plaintiff appealed. Thereafter, that motion was vacated in part and, on June 18, 1987, granted, as amended, on the same ground as the February 19 decision. From the judgment rendered on that motion, the plaintiff filed a second appeal.

Practice Book § 220 (a) (1) provides that a party may submit an interrogatory to discover certain limited information about an opponent’s expert witness. Under Practice Book § 224, any such interrogatories must be answered within thirty days after the filing unless the court allows for a longer time. This court has recently restated the law of a party’s responsibility to answer an opponent’s interrogatory. “ ‘The discovery rules are designed to facilitate trial proceedings and to make a “trial less a game of blindman’s buff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent.” United States v. Proctor & Gamble, 356 U.S. 677, 682, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958). “The court’s decision on whether to impose the sanction of excluding the expert’s testimony concerning causation rests within the sound discretion of the court.” Sturdivant v. Yale-New Haven Hospital, [2 Conn. App. 103, 107, 476 A.2d 1074 (1984)]. Unless the trial court has abused a legal discretion, its action should not be disturbed; in making this analysis, we must afford the decision of the trial court great weight and allow every reasonable presumption to be made in favor of its correctness. Timm v. Timm, 195 Conn. 202, 206, 487 A.2d 191 (1985); Dudas v. Ward Baking Co., 104 Conn. 516, 518, 133 A. 591 (1926). “In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did.” Timm v. Timm, supra, 207; E.M. Loew’s Enterprises, Inc. v. Surabian, 146 Conn. 608, 611, 153 A.2d 463 (1959); Sturdivant v. Yale-New Haven Hospital, supra, 108. “The court’s conclusion that the consequences of the plaintiff’s failure fully and fairly to disclose, despite being given ample opportunity to do so . . . should fall upon the plaintiff rather than upon the defendants, was not an abuse of discretion.” ’ Perez v. Mount Sinai Hospital, 7 Conn. App. 514, 519, 509 A.2d 552 (1986).” Caccavale v. Hospital of St. Raphael, 14 Conn. App. 504, 507-508, 541 A.2d 893 (1986).

We conclude that the trial court did not abuse its broad discretion in ruling that the plaintiff failed to answer interrogatory number 23, and, therefore, correctly precluded the plaintiff from bringing forward an expert witness.

The plaintiff’s second claim of error is that the trial court erred by granting the defendant’s motions for summary judgment. The standard of review for a case involving a summary judgment is abundantly clear from the rich case law in this area. Recently, in DiMaggio v. Makover, 13 Conn. App. 321, 536 A.2d 595 (1988), this court restated the standard of review that was articulated in Desnoyers v. Wells, 4 Conn. App. 666, 667-68, 496 A.2d 237 (1985). “ ‘ “A trial court may appropriately render summary judgment when the documents submitted demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law. Practice Book § 384; Yanow v. Teal Industries, Inc., 178 Conn. 262, 268, 422 A.2d 311 (1979); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 377-78, 260 A.2d 596 (1969).” . . . Once the moving party has presented evidence in support of the motion for summary judgment, the opposing party must present evidence that demonstrates the existence of some disputed factual issue.’ (Citations omitted.) Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). ‘ “When a motion for summary judgment is supported by affidavits and other documents, an adverse party, by affidavit or as otherwise provided by [Practice Book] § 380, must set forth specific facts showing that there is a genuine issue for trial, and if he does not so respond, the court is entitled to rely upon the facts stated in the affidavit of the movant.” ’ Kakadelis v. DeFabritis, 191 Conn. 276, 280-81, 464 A.2d 57 (1983).” Desnoyers v. Wells, supra; DiMaggio v. Makover, supra, 323-24.

In this action alleging malpractice, the plaintiff did not produce an expert witness. It is well settled in Connecticut case law that a plaintiff “cannot prevail unless there was evidence of an expert nature from which the jury could reasonably conclude that the defendant was negligent, except where there is manifest such gross want of care or skill as to afford, of itself an almost conclusive inference of negligence that the testimony of an expert is not necessary.” Puro v. Henry, 188 Conn. 301, 305, 449 A.2d 176 (1982); see also Console v. Nickow, 156 Conn. 268, 270 A.2d 895 (1968); Perez v. Mt. Sinai Hospital, supra, 520. Where no expert evidence was presented, the trial court was correct in granting the defendant’s motions for summary judgment.

There is no error.

In this opinion the other judges concurred.

       The named plaintiff, Kathleen Guzze, subsequently died and the plaintiff, William Guzze, her husband, who had originally sued for loss of consortium, was named executor of his wife’s estate. He has been added as a plaintiff in his representative capacity and will be designated in this opinion as the plaintiff.

       The cause of action against the named defendant was withdrawn. The trial court granted the motion for summary judgment filed on behalf of the defendant Joseph Welna only. Welna will be referred to in this opinion as the defendant.

       Interrogatory number 23 asks: “Do you intend to call an expert to testify at trial in this matter? If so, please state:
      “a. The name, address and qualifications of said expert;
      “b. The proposed subject matter of his or her testimony;
      “c. The substance of the facts and opinions to which he or she will testify;
      “d. The factual basis of any opinions he or she is expected to render.”

       Practice Book § 231 provides: “If any party has failed to answer interrogatories or to answer them fairly ... or has failed otherwise substantially to comply with any other discovery order . . . the court may, on motion, make such order as the ends of justice require. Such orders may include the following:. . . (d) The entry of an order prohibiting the party who has failed to comply from introducing designated matters . . . . ”

       Practice Book § 220 (A) (1) provides: “A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.”
      Practice Book § 232 provides: “continuing duty to disclose
      “If, subsequent to compliance with any request or order for discovery and prior to or during trial, a party discovers additional or new material or information previously requested . . . he shall promptly notify the other party . . . (Emphasis added.)

       Practice Book § 224 provides in pertinent part: “Any such interrogatories shall be answered under oath by the party to whom directed and such answers shall be served and filed within thirty days after the filing of the notice required by Sec. 223 (b), unless:
      “(a) Counsel file with the court a written stipulation extending the time within which answers or objections may be served; or
      “(b) Upon motion, the court allows a longer time; or
      “(c) Objections to the interrogatories and the reasons therefor are filed and served within the thirty-day period.”


source: Caselaw Access Project

author: Dupont, C. J.

license: Public Domain

text:
    Vincent Builders, Inc. v. American Application Systems, Inc.
    (6198)
    Dupont, C. J., Borden and Spallone, Js.
    Argued June 10
    decision released September 27, 1988

      James R. Fogarty, with whom, on the brief, was Joseph T. O’Connor, for the appellant (plaintiff).

      Eileen M. Ellsworth, with whom, on the brief, was Mark J. Kovak, for the appellee (defendant).
   Dupont, C. J.

The plaintiff appeals from the judgment of the trial court granting the defendant’s application to confirm an arbitration award and denying the plaintiff’s application to vacate that arbitration award. The plaintiff claims that the trial court erred (1) in refusing to vacate the arbitration award on the ground that it was made in favor of the “wrong party,” American Application Systems, Inc., a New York corporation which was not a party to the contract that is the subject of this dispute, (2) in finding that the plaintiff waived its claim that the “wrong party” demanded arbitration, (3) in ruling that any defect in the oath taken by the arbitrators at the commencement of the arbitration proceedings was rectified by the subsequent proper administration of the oath, (4) in refusing to consider evidence that the plaintiff proffered after the close of the arbitration hearings, (5) in ruling that the plaintiff failed to prove that one of the arbitrators was biased against it, and (6) in concluding that the plaintiff failed to prove that one of the arbitrators engaged in improper ex parte communication with the defendant’s attorney and representatives of the defendant corporation.

The following facts are relevant to this appeal. The plaintiff entered into a contract with the defendant for the installation of drywall and exterior walls on two condominium projects. The contract provided that all disputes arising under the contract were to be decided by arbitration. Pursuant to the contract, the defendant filed a demand for arbitration, which proceedings required twelve hearings over a two month period. Subsequent to the close of the hearings but prior to the arbitrators’ award, the plaintiff sought to open the hearings to present new evidence regarding the defendant’s allegation of damages. This request was denied. The arbitrators’ award was rendered in favor of the defendant in the amount of $149,646, plus legal interest.

“Arbitration is favored by courts as a means of settling differences and expediting the resolution of disputes.” Wolf v. Gould, 10 Conn. App. 292, 296, 522 A.2d 1240 (1987). “There is no question that arbitration awards are generally upheld and that we give great deference to an arbitrator’s decision since arbitration is favored as a means of settling disputes.” Hartford v. Local 760, 6 Conn. App. 11, 13, 502 A.2d 429 (1986). “The party challenging the award bears the burden of producing evidence sufficient to invalidate or avoid it, and only upon a showing that it ‘falls within the proscriptions of § 52-418 of the General Statutes, or procedurally violates the parties' agreement’ will the determination of an arbitrator be subject to judicial inquiry.” O & G/O’Connell Joint Venture v. Chase Family Limited Partnerhip No. 3, 203 Conn. 133, 145-46, 523 A.2d 1271 (1987).

The plaintiffs first claim is that the arbitration award was erroneously made in favor of American Application Systems, Inc., a New York corporation, rather than the defendant, American Application Systems, Inc., of New Jersey, the party that entered into the contract with the plaintiff. The plaintiff argues that by so rendering the award, the arbitrators exceeded their authority under the contractual agreement between the plaintiff and the defendant providing for arbitration and, consequently, the arbitration award should be vacated.

It is not disputed that the defendant mistakenly filed its demand for arbitration in the name of American Application Systems, Inc., and that the arbitration award was in fact made in favor of American Application Systems, Inc. The record is clear, however, that both parties entered into the arbitration proceedings without raising any question as to the status of the defendant and that there was no question that American Application Systems, Inc., of New Jersey was the corporation appearing at the arbitration proceedings. Furthermore, the defendant’s counsel stipulated at trial that the arbitration award solely concerned American Application Systems, Inc., of New Jersey and that it, rather than American Application Systems, Inc., was the actual party in interest. Our review of the record fully supports the trial court’s conclusion “that the inaccurate naming of the actual party concerned had no bearing on either the arbitration or its outcome.” There is an absence of any prejudice to the plaintiff due to the inaccurate naming of the defendant in the arbitration award and, therefore, there is no merit to the plaintiff’s argument.

The plaintiff’s second claim is that the trial court erred in finding that, pursuant to rule 38 of the Construction Industry Arbitration Rules of the American Arbitration Association (AAA), the plaintiff waived any objection it may have had to the naming of the “wrong party.”

The plaintiff does not dispute that it did not object to the defendant’s status until after the close of the arbitration proceedings. The plaintiff argues, however, that since it was unaware of the existence of the New York corporation, American Application Systems, Inc., until after the close of the arbitration proceedings, the principle that “[a] necessary element to waiver is the requisite knowledge of the right”; Reinke v. Greenwich Hospital Assn., 175 Conn. 24, 27, 392 A.2d 966 (1978); has not been met in this case. We disagree.

The plaintiff entered into a contract with American Application Systems, Inc., of New Jersey, but received the demand for arbitration in the name of American Application Systems, Inc. The plaintiff could have raised this discrepancy at any time during the two month period in which the arbitration proceedings took place. The plaintiff’s argument that it was unaware of the existence of American Application Systems, Inc., until after the close of the arbitration proceedings only makes clear that the plaintiff did not question the status of the defendant throughout the course of the arbitration proceedings. Under these circumstances, the trial court did not err in finding that the plaintiff had waived any objection to the inaccurate naming of the defendant in the arbitration proceedings.

The plaintiff’s third claim is that the trial court erred in ruling that any defect in the oath taken by the arbitrators at the commencement of the arbitration proceedings was rectified by the subsequent proper administration of the oath. At the commencement of the arbitration proceedings, all three arbitrators, led by arbitrator Henry T. Jevne, swore to “faithfully and fairly hear and examine the matters in controversy and make a just award to the best of [their] understanding.” Following the second day of hearings, arbitrator Glen T. Cunningham executed a written notarized oath; following the third day of hearings, arbitrator Dan S. Brock also executed a written, notarized oath. The plaintiff argues that the failure of Brock and Cunningham to be sworn by a proper officer pursuant to General Statutes § 1-24 prior to the commencement of the arbitration proceedings, as required by General Statutes § 52-414 (d), requires the vacating of the arbitration award. The plaintiff argues that any subsequent oath executed by Brock and Cunningham cannot rectify their initial failure to be properly sworn.

General Statutes § 1-24 contains a list of persons qualified to administer oaths. That list does not include laymen. Accordingly, Jevne, a trained architect, was not qualified to administer the oath required by General Statutes § 52-414 (d) to the other members of the arbitration panel, namely, Cunningham, an attorney, and Brock, a contractor. That irregularity, however, does not constitute a sufficient reason to vacate the award. General Statutes § 52-418 delineates the grounds upon which an arbitration award may be vacated. That list does not include an irregularity in the swearing in process as one of those grounds. “Courts favor arbitration as a means of settling differences and arbitration awards are generally upheld except where an award clearly falls within the proscriptions of § 52-418 of the General Statutes.” (Footnote omitted.) Board of Education v. Bridgeport Education Assn., 173 Conn. 287, 290, 377 A.2d 323 (1977).

We conclude, therefore, that the trial court did not err in refusing to vacate the arbitration award on these grounds.

The plaintiff’s fourth claim is that the trial court erred in finding that the arbitrators’ refusal to hear evidence offered by the plaintiff after the close of the hearings did not deprive the plaintiff of a full and fair hearing. The plaintiff claims that the proffered evidence was obtained from the Internal Revenue Service after the close of the hearings and pertained to the defendant’s failure to pay federal payroll taxes. The plaintiff argues that this evidence contradicted the defendant’s assertion at the arbitration proceeding concerning $90,000 in payroll expenses, which figure the plaintiff claims was relied upon by the arbitration panel in fashioning its award. The plaintiff claims that the refusal to hear the new evidence violated General Statutes § 52-418 (a) (3) and requires the vacation of the arbitration award.

Arbitrators act with substantial discretion in determining the admissibility of evidence, and it is within their broad discretion to decide whether additional evidence is required or would merely prolong the proceedings unnecessarily. O & G/O’Connell Joint Venture v. Chase Family Limited Partnership No. 3, supra, 148. Section 52-418 (a) (3) does not mandate “that every failure or refusal to receive evidence, even relevant evidence, constitutes misconduct. To establish that an evidentiary ruling, or lack thereof, rises to the level of misconduct prohibited by § 52-418 (a) (3) requires more than a showing that an arbitrator committed an error of law. Rather, a party challenging an arbitration award on the ground that the arbitrator refused to receive material evidence must prove that, by virtue of an evidentiary ruling, he was in fact deprived of a full and fair hearing before the arbitration panel.” Id., 149.

We agree with the trial court’s finding that the plaintiff failed to demonstrate that the proffered evidence was material to the panel’s decision and that, therefore, the plaintiff failed to carry its burden of proving that it was deprived of a full and fair hearing. Our review of the record indicates that the plaintiff failed to present any evidence that the defendant’s testimony regarding payroll expenses was relied upon by the panel in reaching its award, or any evidence as to the effect that the newly discovered evidence would have had on the outcome of the arbitration proceedings. In the absence of a showing of the requisite degree of materiality of the proffered evidence, the plaintiff’s claim of error must fail.

The plaintiff’s next claim is that the trial court erred in failing to find that one of the arbitrators was biased against the plaintiff. The plaintiff’s allegation of bias is based on two incidents that occurred during the arbitration proceedings which were disputed in the trial court. First, the plaintiffs counsel at the arbitration proceedings testified that at the hearing on the application to confirm the arbitration award, arbitrator Cunningham informed her that Brock had referred to the principal of the plaintiff corporation, Vincent Vartuli, in ethnically derogatory terms. Cunningham testified, however, that he did not recall any such comments by Brock. Second, the plaintiff’s counsel at the hearings testified that Cunningham approached her and expressed his surprise over the hostility exhibited by Brock toward Vartuli, and that he would contact the AAA concerning Brock’s behavior. Cunningham testified, however, that it was the plaintiff’s counsel who approached him regarding the alleged abruptness and rudeness of Brock, and Cunningham responded that as a “courtesy” he would contact the AAA. Cunningham testified that he did note a “personality conflict” between Brock and Vartuli, which was limited to one hearing and was not unusual given the lengthy proceedings and close quarters in which they took place. In addition, the plaintiff alleged bias in that Brock interrupted Vartuli several times during his first day of testimony, and that Brock observed that a photograph entered into evidence by the plaintiff could have been fabricated for use in the proceedings. The trial court found that the evidence presented by the plaintiff concerning the claim of bias was inconclusive, and the court declined to vacate the award on that basis.

An allegation that an arbitrator was biased, if supported by sufficient evidence, may warrant the vacation of the arbitration award. Schwarzschild v. Martin, 191 Conn. 316, 327, 464 A.2d 774 (1983); Local 530, AFSCME, Council 15 v. New Haven, 9 Conn. App. 260, 267, 518 A.2d 941 (1986). The burden of proving bias or evident partiality pursuant to § 52-418 (a) (2) rests on the party making such a claim, and requires more than a showing of an “appearance of bias.” Local 530, AFSCME, Council 15 v. New Haven, supra, 265, 274. In construing § 52-418 (a) (2), this court concluded that evident partiality “will be found where a reasonable person would have to conclude that an arbitrator was partial to one party to the arbitration. To put it in the vernacular, ‘evident partiality’ exists where it reasonably looks as though a given arbitrator would tend to favor one of the parties.” Id., 274.

The evidence offered by the plaintiff in support of its claim of bias was contested by the defendant at trial. Furthermore, Brock’s comment regarding the photographic evidence offered by the plaintiff, and occasional interruption of the testimony of Vartuli, alone cannot support a reasonable conclusion of evident partiality. In light of the evidence presented by the plaintiff, we cannot conclude that the trial court erred in finding that the plaintiff had failed to provide sufficient evidence to carry its burden of proving bias on the part of Brock. Schwarzschild v. Martin, supra.

The plaintiff finally claims that the trial court erred in finding that the plaintiff failed to prove that Brock engaged in improper ex parte communication with representatives of the defendant corporation and its attorney. The plaintiff claimed that numerous such communications occurred during the course of the arbitration proceedings. The plaintiff also presented the testimony of one of its employees who claimed to have overheard the word “invoices” during one of these conversations. The plaintiff alleges that later that day the defendant put into evidence numerous invoices. Vartuli also testified that he overheard such ex parte conversations, but that they ended when he entered the room.

At trial, Brock admitted to numerous ex parte conversations with the defendant’s representatives during the course of the hearings. Brock testified, however, that these conversations did not pertain to the substance of the arbitration proceedings but rather were just “small talk” regarding the weather or coffee. The nonsubstantive nature of these conversations was corroborated by testimony of representatives of the defendant. The use of the word “invoice” during one of the conversations was not denied but was explained as relating to a payment for the hotel room in which the hearings were to take place.

Because the plaintiff claims that the ex parte communications were improper and were misconduct within the terms of § 52-418 (a) (3), we must determine what is involved in the concept of arbitral misconduct. An arbitrator’s participation in ex parte communications with a party or witness, without the knowledge or consent of the other party, may constitute misconduct on the part of the arbitrator sufficient to warrant vacation of an arbitration award. O & G/O ’Connell Joint Venture v. Chase Family Limited Partnership No. 3, supra, 146-47. The cases cited in the O & G/O’Connell Joint Venture for this proposition, however, make it clear that the ex parte communications must involve facts, issues or evidence relevant to the subject of the arbitration proceedings. See Whitehair v. Kansas Flour Mills Corporation, 127 Kan. 877, 879, 275 P. 190 (1929); Matter of Goldfinger v. Lisker, 68 N.Y.2d 225, 232, 500 N.E.2d 857, 508 N.Y.S.2d 159 (1986).

In this case, the trial court found that the plaintiff had not shown that the ex parte communications were improper, that is, related to facts and circumstances involving the arbitrable matter itself. Thus, “misconduct” within the meaning of § 52-418 (a) (3) was not established. The trial court did not err, therefore, in failing to vacate the award pursuant to § 52-418 (a) (3).

There is no error.

In this opinion the other judges concurred.

       Three arbitrators served on the arbitration panel, two by mutual choice of the parties, namely, Henry T. Jevne and Glen T. Cunningham, and one at the recommendation of the American Arbitration Association, Dan S. Brock.

       General Statutes § 52-418 (a) provides: “Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an oyder vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       Rule 38 of the Construction Industry Arbitration Rules of the American Arbitration Association provides that “[a]ny party who proceeds with the arbitration after knowledge that any provision or requirement of these rules has not been complied with and who fails to state an objection thereto in writing, shall be deemed to have waived the right to object.” The contract between the plaintiff and the defendant provided that the arbitration proceedings were to be conducted in accordance with the Construction Industry Arbitration Rules of the AAA.

       General Statutes § 52-414 (d) provides: “Before hearing any testimony or examining other evidence in the matter, the arbitrators and umpire shall be sworn to hear and examine the matter in controversy faithfully and fairly and to make a just award according to the best of their understanding, unless the oath is waived in writing by the parties to the arbitration agreement.” General Statutes § 1-24 provides, inter alia, that notaries public are officers who may administer oaths.

       Jevne had executed a written, notarized oath prior to the commencement of the arbitration proceedings. We note that the case of Reinke v. Greenwich Hospital Assn., 175 Conn. 24, 27, 392 A.2d 966 (1978), cited by both parties in their briefs, is inapposite to the present case. In Reinke, the trial court’s vacation of an arbitration award was upheld where no oath had been administered either before or during the arbitration proceedings, and the parties did not waive the oath requirement in writing.

       The plaintiff does not dispute that Jevne was properly sworn by a notary public prior to the commencement of the arbitration proceedings.

       General Statutes § 52-418 provides in pertinent part: “vacating award. (a) Upon the application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects: (1) If the award has been procured by corruption, fraud or undue means; (2) if there has been evident partiality or corruption on the part of any arbitrator; (3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy-or of any other action by which the rights of any party have been prejudiced; or (4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

       Arbitrator Glen T. Cunningham did in fact report the incident to the AAA. No further investigation or disciplinary action resulted, however.


author: Daly, J.

text:
    George Futterleib et al. v. Mr. Happy’s, Inc., et al.
    (5782)
    Borden, Daly and Norcott, Js.
    Argued May 10
    decision released October 4, 1988

      Kenneth B. Katz, for the appellant (defendant Trepid Fox, Inc.).

      Ronald E. Cassidento, with whom, on the brief, were Eric Carlson and Jeffrey A. Gutin, law student intern, for the appellees (plaintiffs).
   Daly, J.

The plaintiffs, George and Marcia Futterleib, instituted these consolidated actions against the defendants, Douglas Medina, Mr. Happy’s, Inc., and Trepid Fox, Inc., for their gross negligence and wanton and reckless conduct in dispensing alcoholic beverages to an intoxicated person and for their violation of General Statutes § 80-102. From the judgment rendered upon a jury verdict in favor of the plaintiffs against the defendant Trepid Fox, Inc., this appeal ensued.

The defendant claims that the trial court erred in the following manner: (1) in failing to charge on a party’s duty to mitigate damages; (2) in precluding the defendant from making an offer of proof relating to mitigation of damages; (3) in disallowing into evidence a pleading in a companion matter; (4) in failing to instruct the jury adequately on proximate cause; (5) in denying the defendant’s motion in limine regarding an intoximeter test; (6) in denying the defendant’s motion for a directed verdict; (7) in denying the defendant’s motion to set aside the verdict; and (8) in improperly charging the jury concerning the $20,000 damage limitation prescribed under General Statutes § 30-102.

The plaintiffs, in their preliminary statement of issues, claim that the trial court erred in granting the defendant’s motion to strike the plaintiff’s count brought under the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a. Since the plaintiffs have failed to comply with Practice Book § 4005 relating to the filing of a cross appeal in this matter, we need not consider this claim.

The jury could reasonably have found the following facts. On December 5, 1983, Douglas Medina and James Mosakowski left their place of employment in Waterbury and proceeded in separate vehicles to Mr. Happy’s, a Waterbury bar that features exotic dancers. There the two drank both beer and several shots of liquor. After approximately two hours at Mr. Happy’s, Mosakowski and Medina proceeded to the Trepid Fox, a bar approximately two miles away. At the Trepid Fox, Medina drank beer and several shots of tequila. He and Mosakowski were treated to a round of shots by a bartender at the Trepid Fox and by one of the dancers. Mosakowski observed Medina swaying back and forth while standing at the bar and noticed that Medina was having some difficulty standing. In addition, Mosakowski observed that Medina was staggering. At no time did any employee of the Trepid Fox refuse to serve Medina or ask him to leave, despite his being observed “biting the bar,” which the jury could have interpreted as his head dropping and contacting the top of the bar.

Medina could not recall at what time he left the Trepid Fox but subsequently thought that he had stopped drinking about 5:30 p.m. Shortly after 6 p.m., his truck emerged from a McDonald’s restaurant driveway without stopping and proceeded to halt and block the traveled lane. William Huber, whose vehicle came within six inches of Medina’s truck, observed that Medina looked “real drunk,” stating that Medina’s elbow was on the window, his head was resting on his shoulder and his face was red.

At about 6:23 p.m., the plaintiffs were proceeding northerly on Wolcott Road in Wolcott approximately two to three miles from the Trepid Fox. Medina’s truck, which was proceeding in a southerly direction, swerved into the oncoming lane and collided with the plaintiffs’ vehicle. Upon arrival at the scene, Wolcott police officer John Gagain observed Medina swaying and staggering. Gagain also noticed that Medina’s speech was slurred and detected a strong odor of alcohol on his breath. Medina admitted to having a few beers and subsequently failed the sobriety tests administered at the scene. An examination of the cab of his truck revealed an eight pack of beer bottles, four empties and four unopened ones. Additionally, twenty empty beer containers were also found in the cab. An intoximeter test, administered at the Wolcott police department one hour and twenty-five minutes later, indicated that Medina was highly intoxicated with a .225 percent blood alcohol content.

As a result of the collision, the plaintiffs sustained serious injuries. The named plaintiff suffered, inter alia, a fracture of the left hip. Kevin Dowling, an orthopedist, recommended a total hip replacement procedure, which entailed joint replacement and bone grafting. The patient, however, refused this procedure. Dowling indicated that the hip replacement surgery as recommended would not only have enabled the named plaintiff to walk without crutches, but would have reduced the pain and disability as well. Timothy Wallace, a pain specialist and psychologist, opined that the pain might not have been eliminated by the surgery.

The jury returned a verdict in favor of the named plaintiff in the amount of $20,000 in the dram shop action and $500,000 on the common law complaint. Additional verdicts were entered in favor of Marcia Futterleib for $10,000 in her dram shop action and $60,000 on her common law complaint.

I

In the defendant’s first claim of error, it argues that the trial court erred in failing to charge on a party’s duty to mitigate damages. Specifically, the defendant asserts that it was error for the court to refuse to instruct the jury on the duty to mitigate when there was evidence, produced at trial, to support the defendant’s request. The defendant argues that the named plaintiff’s decision not to pursue the recommended joint replacement and bone grafting advised by his doctor was sufficient evidence of a failure to use reasonable care to mitigate his damages. We agree.

"It has long been a ‘ "rule of general application that one who has been injured by the negligence of another must use reasonable care to promote recovery and prevent any aggravation or increase of the injuries.” ’ Sette v. Dakis, 133 Conn. 55, 60, 48 A.2d 271 [1946]. When there are facts in evidence that indicate that a plaintiff may have failed to promote his recovery and do what a reasonably prudent person would be expected to do under the same circumstances, the court, when requested to do so, is obliged to charge on the duty to mitigate damages.” Jancurav. Szwed, 176 Conn. 285, 288, 407 A.2d 961 (1978); see also Geer v. First National Supermarkets, Inc., 5 Conn. App. 175, 178, 497 A.2d 999 (1985).

In the present case, there was evidence from Dowling, the named plaintiff’s doctor, that the joint replacement and bone grafting would enable the named plaintiff to walk without crutches, that the pain would be reduced, and that there would be a reduction in his disability. Moreover, Dowling testified that the decision whether or not to elect the recommended surgery was with the named plaintiff and that there was nothing gained by delaying surgery. In view of Dowling’s testimony that supported the defendant’s request to charge, the trial court committed error in not charging on the named plaintiff’s duty to mitigate.

II

The defendant next claims that the trial court erred in precluding the defendant from making an offer of proof on the plaintiffs’ failure to use seatbelts. In making this claim, however, the defendant merely assumes, without legal argument on the matter, that such evidence would have been relevant to the issue of mitigation. The underlying issue of how the use of seatbelts would have mitigated damages, which is necessary to the resolution of the issue, is not briefed. In the absence of any legal argument on this issue, we will not address the merits of the defendant’s claim. See Hawkins v. Hawkins, 11 Conn. App. 195, 198 n.1, 526 A.2d 872 (1987); Griffin v. Muzio, 10 Conn. App. 90, 94, 521 A.2d 607 (1987).

In reaching this decision, we first note that the accident in this case occurred in 1983, two years prior to the legislature’s adoption of General Statutes § 14-100a (4) which provides: “Failure to wear a seat safety belt shall not be considered as contributory negligence nor shall such failure be admissible evidence in any civil action.” Accordingly, the provisions of § 14-100a (4) are not applicable to this case. Next, we note that, in the absence of a statute dealing with the issue, it is far from clear that evidence of the failure to use seatbelts can be introduced to show either the failure to mitigate damages or contributory negligence. Neither our Supreme Court nor this court have addressed this issue. See Wassell v. Hamblin, 196 Conn. 463, 467-68 n.3, 493 A.2d 870 (1985). The trial bench is quite divided on the issue. Trial court decisions rejecting the seat-belt defense as it relates to mitigation of damages include Delumba v. Magda, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV840073370S (October 31, 1985); and Jemison v. Lowe, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 284839 (June 6, 1985). Trial court decisions holding that the seatbelt defense is allowable for mitigation of damages include Fiore v. Wilson, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 241653 (May 27, 1980); Ceforetti v. Elkins, Superior Court, judicial district of Waterbury, Docket No. 048496 (November 29, 1979). Because this issue is so unclear, we will not consider the defendant’s claim in the absence of proper legal argument on the viability of the seatbelt defense as applied to claims arising before the effective date of General Statutes § 14-100a (4).

Ill

In the third claim of error, the defendant argues that trial court erred in precluding the admission of pleadings constituting evidentiary admissions in a companion case. We disagree.

The facts relating to this claim are as follows. The plaintiffs had instituted an independent cause of action against Medina alleging that he was negligent in the operation of his automobile. Medina had responded to that allegation by raising the special defense that the cause of the accident was the named plaintiff’s negligent operation of his own automobile. Prior to trial, however, the complaint against Medina was withdrawn.

At trial, the defendant sought to introduce evidence that the suit against Medina was withdrawn. Such evidence, they claimed, related to Medina’s credibility because it tended to show bias. The trial court disagreed and excluded the evidence. Thereafter, the defendant sought to introduce the pleadings filed in the suit against Medina, claiming that the special defense raised by Medina was admissible to show that the plaintiffs were at fault. The trial court again disagreed and excluded the evidence.

On appeal, the defendant claims that the special defense raised by Medina in the suit brought by the plaintiffs constituted a judicial admission that was substantively admissible to show that the plaintiffs were at fault in the car accident. We disagree.

A judicial admission is “ ‘[a]n express waiver, made in court or preparatory to trial, by the party or his attorney, conceding for the purposes of the trial the truth of some alleged fact, has the effect of a confessory pleading, in that the fact is thereafter to be taken for granted; so that the one party need offer no evidence to prove it, and the other is not allowed to disprove it. . . . It is, in truth, a substitute for evidence, in that it does away with the need for evidence.’ 9 Wigmore, Evidence (3d Ed.) § 2588.” State v. Rodriguez, 180 Conn. 382, 396, 429 A.2d 919 (1980); see also B. Holden & J. Daly, Connecticut Evidence § 103. Our Supreme Court has held that statements by a party in withdrawn or superseded pleadings may constitute judicial admissions. Dreier v. Upjohn Co., 196 Conn. 242, 244, 492 A.2d 164 (1985). A statement in a withdrawn or superseded pleading, however, only qualifies as a judicial admission if it is made by a party to the action in which it is sought to be used. Kucza v. Stone, 155 Conn. 194, 197, 230 A.2d 559 (1967). Here, it is clear that Medina was not a party in the case that was tried to the jury. Accordingly, his statements in a totally unrelated suit could not constitute judicial admissions.

IV

In the fourth claim of error, the defendant argues that the trial court erred in its charge to the jury regarding the proximate cause of the plaintiffs’ injuries. Specifically, the defendant claims error in that the trial court failed to charge the jury according to Boehm v. Kish, 201 Conn. 385, 517 A.2d 624 (1985). We find no error.

The factual basis of Boehm v. Kish, supra, differs from the case at hand and we, therefore, hold that the charge given in Boehm is not applicable to this case. In Boehm, the plaintiff instituted a dram shop action against the defendant bar owner and bartender, alleging gross negligence and wanton and reckless conduct in the service of alcohol. The plaintiff was involved in a one car accident after leaving the defendant bar. The trial court directed a verdict in favor of the defendants, holding that there was not sufficient evidence to explain the cause of the accident. Since it was a one car accident and the operator was unable to remember how the accident occurred, the court concluded that any number of causes may have been the proximate cause. In the present case, we have direct evidence as to the cause of the collision of Medina and the plaintiffs. There was testimony by Fran Korowlotny, an eyewitness to the accident, that Medina swerved into the lane in which the plaintiffs were driving. Additionally, there is testimony of the named plaintiff that he saw Medina swerve into his lane, causing the accident. On the basis of this direct testimony, viewed in light of all the evidence presented, including the testimony of Medina’s conduct in the bar and when leaving McDonald’s, the trial court was correct in not charging as the court did in Boehm v. Kish, supra. The trial court charged: “A proximate cause is a direct cause. It is an act or failure to act followed in the natural sequence by a result without the intervention of any other superseding cause. Where the sequence of events is unbroken by any intervening cause an act or failure to act is a proximate cause of the result. Proximate cause is thus an act or failure to act which is a substantial factor to produce a result.” This charge adequately covered the issue of proximate cause.

V

The defendant next claims that the trial court erred in denying its motion in limine regarding the results of an intoximeter test administered to Medina. The motion was based on the case of State v. Crepeau, Superior Court, judicial district of New Haven at Meriden, Docket No. MV7-25228 (May 26, 1983), in which the trial court held that the lack of publication in the Connecticut Law Journal made void the approval by the commissioner of health services of the Intoximeter 3000. The defendant argues that the results of the blood alcohol level test of Medina should have been excluded from evidence because the Intoximeter 3000, the device used to measure Medina’s blood alcohol content, was not approved in conformity with General Statutes § 4-168. Moreover, the defendant contends that the trial court erred in solely relying on the publication aspect of the decision in State v. Crepeau, supra. We find that the defendant’s argument is without basis.

It is noteworthy that the defendant does not challenge the reliability of the Intoximeter 3000. The purpose of a motion in limine is for a party to prohibit, in advance, evidence from being admitted into evidence. It is, in essence, similar to a motion to suppress. See C. Tait & J. LaPlante, Connecticut Evidence § 2.6 (1986 Supp.). The trial court’s ruling denying the motion in limine, although correct, was based on the wrong reasons.

This is a civil case, albeit one involving an intoxicated driver. The defendant mistakenly argues that the provisions in General Statutes § 14-227a are applicable to this case. In State v. Singleton, 174 Conn. 112, 115-16, 384 A.2d 334 (1974), our Supreme Court held that the procedural requirements of § 14-227 a regarding admissibility of blood tests apply only to prosecutions under that statute. In Singleton, the blood alcohol test results were admissible because it was a prosecution charged under General Statutes § 53a-57. If the procedural requirements of § 14-227a do not apply to a criminal prosecution under § 53a-57, a fortiori, they do not apply to this civil case. See also State v. LeRoy, 16 Conn. App. 472, 477, 547 A.2d 940 (1988); State v. Shaw, 12 Conn. App. 294, 298, 530 A.2d 653 (1987).

VI

The next assignment of error involves the trial court’s denial of the defendant’s motion for a directed verdict. “The general rule in Connecticut is that a trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion.” Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986). Daley v. Gaitor, 16 Conn. App. 379, 384, 547 A.2d 1375 (1988), citing Meizoso v. Bajoros, 12 Conn. App. 516, 518, 531 A.2d 943 (1987). As our Supreme Court has stated: “A directed verdict is justified if on the evidence the jury could not reasonably and legally reach any other conclusion than that embodied in the verdict as directed; id.; McDonald v. Connecticut Co., 151 Conn. 14, 17, 193 A.2d 490 (1963); or if the evidence is so weak that it would be proper for the court to set aside a verdict rendered for the other party. Mott v. Hillman, 133 Conn. 552, 555, 52 A.2d 861 (1947).” Boehm v. Kish, supra, 389. In reviewing the action of the trial court the evidence must be considered in a light most favorable to sustaining the verdict and every reasonable presumption should be in favor of the verdict. Kegel v. McNeely, 2 Conn. App. 174, 177, 476 A.2d 641 (1984). The defendant’s motion for a directed verdict was based on the grounds that the evidence was insufficient as to Medina’s intoxication, and as to the defendant’s wanton and reckless misconduct. We find that the trial court did not err in denying the motions as to both the statutory and common law counts.

A review of the facts in the light most favorable to sustaining the verdict indicates that the trial court properly denied the motion for a directed verdict. In reviewing this claim we will first examine the defendant’s assertion that there was insufficient evidence as to Medina’s intoxication. The defendant properly appears to concede that an inference as to Medina’s intoxication at the scene of the accident might be drawn. The defendant argues, however, that one cannot infer that Medina’s intoxication resulted from his activities in the Trepid Fox. To determine whether Medina was intoxicated we look to the definition provided in Sanders v. Officers Club of Connecticut, Inc., 196 Conn. 341, 349-50, 493 A.2d 184 (1985); see also State v. McKenna, 11 Conn. App. 122, 127, 525 A.2d 1374, cert. denied, 205 Conn. 806, 531 A.2d 939 (1987). In Sanders, our Supreme Court stated: “To be intoxicated is something more than to be merely under the influence of, or affected to some extent by, liquor. Intoxication means an abnormal mental or physical condition due to the influence of intoxicating liquors, a visible excitation of the passions and impairment of the judgment, or a derangement or impairment of physical functions and energies. When it is apparent that a person is under the influence of liquor, when his manner is unusual or abnormal and is reflected in his walk or conversation, when his ordinary judgment or common sense are disturbed or his usual will power temporarily suspended, when these or similar symptoms result from the use of liquor and are manifest, a person may be found to be intoxicated. He need not be ‘dead-drunk.’ It is enough if by the use of intoxicating liquor he is so affected in his acts or conduct that the public or parties coming in contact with him can readily see and know this is so.” Id. (Footnote omitted). From the evidence presented, the jury could reasonably have inferred that Medina was intoxicated while at the Trepid Fox when the defendant continued to serve him alcohol, and thus his intoxication at the time of the accident resulted, at least in part, from his activities at the Trepid Fox. Medina himself testified that he was at the Trepid Fox drinking shots of tequila that the bartender was serving him, that the bartender in fact bought him a shot, and that he could not remember how many shots he imbibed because he was intoxicated. Moreover, the jury heard the testimony of Mosakowski that established that Medina was swaying, was having difficulty in standing, was staggering, and was “biting the bar.” This display of behavior would certainly indicate to anyone observing or in contact with Medina that he was, in fact, intoxicated.

We next look at whether there was sufficient evidence to find that the defendant’s actions constituted wanton and reckless misconduct. With every reasonable presumption in favor of the verdict, we conclude that the defendant’s conduct of continuing to serve alcohol to Medina, who was already obviously intoxicated, was sufficient for the jury to find reckless and wanton misconduct by the defendant. Our Supreme Court has provided us with a working definition of reckless and wanton misconduct. “The reason that intentional and reckless misconduct are treated the same is that the difference between the two in a conceptual sense is microscopic. ‘Wanton misconduct is more than negligence, more than gross negligence. It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of action. Wilful misconduct is intentional misconduct, and wanton misconduct is reckless misconduct, which is the equivalent of wilful misconduct.’ Menzie v. Kalmonowitz, 107 Conn. 197, 199, 139 A.2d 698 (1928).” Kowal v. Hofher, 181 Conn. 355, 361-62, 436 A.2d 1 (1980); see also Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 394, 546 A.2d 284 (1988).

In this case, the jury could reasonably have inferred (1) that Medina was intoxicated while at the Trepid Fox, (2) that Medina’s intoxicated state was readily apparent to anyone observing or in contact with him, and (3) that the defendant continued to serve alcoholic beverages to Medina while he was obviously intoxicated. The jury could reasonably have inferred these conclusions from both Medina’s and Mosakowski’s testimony. As we described above, Mosakowski’s observations of Medina established that Medina was intoxicated. Moreover, Mosakowski testified that the defendant continued to serve Medina, while in his obviously intoxicated state, and that at no time did anyone at the bar stop serving Medina before he left.

YII

In its seventh claim of error, the defendant argues that the trial court erred in denying the defendant’s motion to set aside the verdict. The defendant bases this claim on the grounds that there was insufficient evidence to show reckless misconduct. We find the defendant’s argument is meritless.

“In sum, ‘[a] trial court’s refusal to set aside a verdict is entitled to great weight and every reasonable presumption in favor of its correctness must be given. Katsetos v. Nolan, 170 Conn. 656, 368 A.2d 172 (1976). The refusal to set aside a verdict will not be disturbed unless it appears there has been a clear abuse of discretion. Birgel v. Heintz, 163 Conn. 23, 27, 301 A.2d 249 (1972).’ Pitter v. Grippo, 177 Conn. 398, 400, 418 A.2d 60 (1979).” Sanders v. Officers Club of Connecticut, Inc., supra, 352; see also B. Holden & J. Daly, Connecticut Evidence § 35. The evidence in the record, without repeating it, is sufficient to sustain the jury’s verdict. The trial court did not err in denying the motion to set aside the verdict.

VIII

In the final claim of error, the defendant argues that the trial court erred in instructing the jury on the $20,000 damages limitation under General Statutes § 30-102. See footnote 1, supra. Specifically, the defendant contends that the instruction was irrelevant and prejudicial. The defendant claims that as a result of the instruction the jury returned a verdict inconsistent with the instruction, because Marcia Futterleib received an award of only $10,000 in her dram shop action and an additional $60,000 in her reckless misconduct action. Furthermore, the defendant adds that the trial court should have stressed that damages were to be measured by just and fair compensation. We do not find the defendant’s argument to be correct.

“In determining whether the court erred in its charge, the charge must be read as a whole and the instructions claimed to be in error read in that context. Giglio v. Hamilton Heights, Inc., 1 Conn. App. 165, 167, 469 A.2d 416 (1984), citing Matthews v. F.M.C. Corporation, 190 Conn. 700, 704, 462 A.2d 376 (1983). Jury instructions need not be exhaustive, perfect or technically accurate so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury. State v. Storlazzi, 191 Conn. 453, 464, 464 A.2d 829 (1983); Castaldo v. D’Eramo, 140 Conn. 88, 94, 98 A.2d 664 (1953); State v. Heinz, 1 Conn. App. 540, 549, 473 A.2d 1242 (1984). The adequacy of the instructions must be determined in the light of their overall impact on the jury. State v. Truppi, 182 Conn. 449, 458, 438 A.2d 712 (1980), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981); State v. Lenczyk, 1 Conn. App. 270, 271, 470 A.2d 1240 (1984). The charge must be examined to determine whether it fairly presents a case to a jury and is not to be subject to a degree of scrutiny that is tantamount to a microscopic examination seeking technical flaws, inexact, inadvertent or contradictory statements. Ubysz v. DiPietro, 185 Conn. 47, 57, 440 A.2d 830 (1981); Tripp v. Anderson, 1 Conn. App. 433, 436, 472 A.2d 804 (1984).” Carfora v. Globe, Inc., 5 Conn. App. 526, 530, 500 A.2d 958 (1985).

Although the trial court did charge that in relation to the Dram Shop Act liability “the maximum recovery for any one plaintiff, should you find for the plaintiff is $20,000 for each,” it also stressed that “you will observe the rule or keep in mind the rule that I have given that the rule there is a fair, just and adequate or reasonable damages for each of the plaintiffs should you find liabilities in that they are entitled to damages as against either one of the defendants, Mr. Happy and/or Trepid Fox.” (Emphasis added.)

While the trial court should have followed the procedure suggested in Sanders v. Officers Club of Connecticut, Inc., supra, by accepting a verdict against the defendant, and thereafter reducing the damages in accordance with the $20,000 statutory limit under General Statutes § 30-102 and rendering judgment thereon, we find no harmful error in charging the jury on the statutory maximum. The verdict does not show that the jury was misled by the instruction. The trial court correctly reminded the jury as to fair, just and adequate or reasonable damages.

There is error in part, the judgment in favor of the plaintiff George Futterleib is set aside and the case is remanded for a new trial limited to the issue of damages.

In this opinion the other judges concurred.

       General Statutes § 30-102 (a) provides in pertinent part: “If any person, by himself or his agent, sells any alcoholic liquor to an intoxicated person, and such purchaser, in consequence of such intoxication, thereafter injures the person or property of another, such seller shall pay just damages to the person injured, up to the amount of twenty thousand dollars

        }>

       The action against Douglas Medina was withdrawn before the verdicts. It was stipulated that Mr. Happy’s, Inc., was not a party to this appeal. We refer herein to Trepid Fox, Inc., as the defendant.

       In direct examination, Mosakowski was asked the following questions:
      “Q: All right. Were you standing at the bar with him?
      “A: Yes, sir.
      “Q: All right. Would you describe him standing at the bar for the judge and jury, was he able to do it?
      “A: Before he left?
      “Q: Yes.
      “A: He was able to stand, but he was having a hard time doing so.
      “Q: What do you mean by that?

        “A: Well he was standing swaying back and forth, sir.
      “Q: While he was at the bar?
      “A: Yes, sir.
      “Q: Did he continue to drink while he was swaying at the bar?
      “A: Yes, sir.
      “Q: Did anybody from the Trepid Fox stop serving you before Medina and you left the bar?
      “A: No sir.”


text:
    Joel Lesser v. Marjorie M. Lesser
    (6049)
    Daly, Bieluch and Stoughton, Js.
    Argued June 17
    decision released October 4, 1988

      John Claude Bahrenburg, for the appellant (plaintiff).

      Jacques J. Parenteau, for the appellee (defendant).
   Daly, J.

The plaintiff appeals from the judgment and the denial of the motion to open the judgment in which the trial court held that a dissolution indemnification provision was not dischargeable in bankruptcy.

The plaintiff claims that the trial court erred (1) in failing to apply the proper law and standards in determining the dischargeability or nondischargeability of a debt to the New London Security Federal Credit Union (credit union) pursuant to 11 U.S.C. § 523 (a) (5), (2) in finding that the May 7, 1984, agreement which was never adopted by the court changed the nature of the credit union obligation imposed by the 1980 judgment from a property settlement to a debt in the nature of child support, (3) in not crediting the defendant’s judicial admission that the debt was a property settlement, and (4) in failing to declare a mistrial due to judicial misconduct. We find error.

The pertinent factual background is as follows. On August 28, 1980, a judgment of dissolution was rendered pursuant to a separation agreement between the parties. Paragraph fourteen of the agreement which was incorporated into the judgment provided, inter alia: “The husband agrees to indemnify and hold the wife harmless from any of the husband’s business debts in connection with which the wife has co-signed loans, including a second mortgage to the New London Security Federal Credit Union in the original amount of approximately $52,000.” Additionally, the plaintiff agreed to assume the cost of a college education for their two children.

On May 7, 1984, the parties entered into a written agreement wherein the plaintiff was released from an indebtedness to the Hartford National Bank, but all other obligations contained in the separation agreement, including the debt owed to the credit union, remained in full force and effect. This agreement was to be submitted to Superior Court in the form of a stipulation of modification of the judgment, but it was not effectuated.

On December 17, 1984, the plaintiff moved to modify paragraph 14 in the Superior Court on the basis that the business interest values were misrepresented and had been seized by the defendant’s brother. The defendant opposed this motion stating that the debt was non-modifiable since it was a property settlement and not periodic alimony or support. The plaintiff’s motion was denied.

The plaintiff was subsequently declared bankrupt on August 27, 1985, but the issue as to whether the indemnification provision is a dischargeable debt was remanded by the Bankruptcy Court to the Superior Court.

The defendant moved that the trial court determine that the indemnification provision was not discharge-able and also moved for contempt against the plaintiff for failure to pay for their daughters’ college education expenses. The trial court ruled that it was the intent and understanding of the parties that payment to the credit union is characterized as a payment in the nature of child support and nondischargeable. This appeal ensued.

The basic issue here is whether the trial court correctly characterized the hold harmless provision as a nondischargeable debt under federal bankruptcy law as being alimony, maintenance or support. See Oakley v. Oakley, 39 Conn. Sup. 13, 17, 466 A.2d 1197 (1983). “Section 523 (a) (5) of the Bankruptcy Code provides as follows: ‘A discharge . . . does not discharge an individual debtor from any debt — (5) to a . . . former spouse ... for alimony to, maintenance for, or support of such spouse ... in connection with a . . . divorce decree. . . .’In contrast, obligations assumed as part of property settlements are discharged. ‘If the debtor has assumed an obligation of the debtor’s spouse to a third party in connection with a . . . divorce proceeding, such debt is dischargeable to the extent that [it] is not actually in the nature of alimony, maintenance, or support of debtor’s spouse. . . .’124 Cong. Rec. H 11,095-96 (9/28/78); S 17,412-13 (10/6/78).” Matter of Ammirato, 74 Bankr. 605, 607 (D. Conn. 1987). Courts have a list of factors to examine in determining whether a particular transaction constitutes a nondischargeable duty such as alimony, maintenance or support, or whether it is a property settlement and, therefore, dischargeable. See Freyer v. Freyer, 71 Bankr. 912, 918 (S.D.N.Y. 1987), and cases cited therein. The following factors are taken into account: (1) whether the obligation terminates on the death or remarriage of the debtor’s spouse; (2) whether the payments appear to balance disparate income; (3) whether the payments are made to a third party or the ex-spouse; (4) whether the obligation terminates at the end of a specified event (i.e., children are out of school, debt is satisfied, etc.); and (5) what was the intent of the parties. See Matter of Ammirato, supra, 608. An examination of the above factors leads us to the conclusion that the defendant’s obligations were part of the property settlement and, therefore, dischargeable.

Our conclusion is further supported by the record in that the defendant’s counsel made a judicial admission that the hold harmless provision constituted a property settlement. On December 17, 1984, the defendant, by her counsel, argued before Judge Vasington of the Superior Court that the debt to the credit union was a nonmodifiable property settlement. The defendant has, for purposes of this action, recharacterized this same debt as child support in order to argue its nondischargeability under 11 U.S.C. 523 (a) (5). The defendant cannot benefit from both arguments. Defendant’s counsel informed the court: “There was no payment of alimony. There was no periodic order. What we’re talking about was an obligation on the part of the plaintiff husband to save harmless the wife from a loan to the New London Security Federal Credit Union. That is the same as — it would be treated as a lump sum award. This is not a periodic award. It is part of the property settlement, and, therefore, is nonmodifiable by the court.”

“[A] judicial admission is ‘ “[a]n express waiver, made in court or preparatory to trial, by the party or his attorney, conceding for the purposes of the trial the truth of some alleged fact, has the effect of a confessory pleading, in that the fact is thereafter to be taken for granted; so that the one party need offer no evidence to prove it, and the other is not allowed to disprove it. . . . It is, in truth, a substitute for evidence, in that it does away with the need for evidence.” 9 Wigmore, Evidence (3d Ed.) § 2588.’ State v. Rodriguez, 180 Conn. 382, 396, 429 A.2d 919 (1980); see also B. Holden & J. Daly, Connecticut Evidence § 103.” Futterlieb v. Mr. Happy’s, Inc., 16 Conn. App. 497, 504, 548 A.2d 728 (1988). In this case, the defendant’s judicial admission that the hold harmless provision constituted a property settlement bound her and she is prohibited from subsequently stating otherwise.

In view of our ruling on this issue, we need not examine the remaining issues in this case.

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

In this opinion the other judges concurred.