author: HENNESSY, J.

text:
    STATE OF CONNECTICUT v. JASON MARCH
    (13019)
    O’Connell, Heiman and Hennessy, Js.
    Argued April 26
    decision released September 12, 1995

      Donald D. Dakers, special public defender, for the appellant (defendant).

      Carolyn K. Longstreth, assistant state’s attorney, with whom were Rosita M. Creamer, assistant state’s attorney, and, on the brief, James E. Thomas, state’s attorney, for the appellee (state).
   HENNESSY, J.

The defendant appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit sexual assault in the first degree in violation of General Statutes §§ 53a-49 and 53a-70, and of risk of injury to a child in violation of General Statutes § 53-21. The defendant also appeals from the revocation of his probation from a previous conviction. He claims that the trial court improperly (1) instructed the jury that it could find the defendant guilty of attempt to commit sexual assault in the first degree when the information charged only sexual assault in the first degree, (2) failed to instruct the jury on the statutory definition of specific intent in connection with the crime of attempted sexual assault, (3) failed to instruct the jury on the specific intent element of risk of injury to a child, and (4) revoked the defendant’s probation.

The jury could reasonably have found the following facts. On May 9, 1992, the four year old victim lived with her mother in Granby. That evening, the defendant visited the apartment, where the victim’s mother also had two other guests. During the three to four hours during which the defendant remained at the apartment, the adults were drinking alcohol.

The victim, who had been put to bed in another room, did not fall asleep. Instead, the victim repeatedly entered the room where the adults were drinking. On one such occasion, the victim asked for something to drink and the defendant handed the victim a cup containing rum and soda. The victim drank the liquid, although she said it tasted funny, and the defendant refilled the cup with the same mixture. The victim drank approximately one half of the contents of the cup.

Later that evening, the defendant volunteered to read the victim a story, and went into her bedroom. After reading a story, the defendant fondled the vaginal and anal areas of the victim and attempted to penetrate her vagina and anus with his finger. The victim’s mother heard the victim say “don’t touch me” and when the victim’s mother entered the bedroom, the victim told her that the defendant had “touched my pee-pee” and tried to touch her “butt” but that she would not let him. The victim’s mother asked the three guests to leave, and then called the victim’s grandmother, who urged her to contact the police. The police arrived at the apartment the following morning.

I

The defendant first claims that the trial court improperly convicted him of attempt to commit sexual assault in the first degree. The defendant argues that because he was charged by information with sexual assault in the first degree, which has only a general intent element, he was not given proper notice that he could be convicted of attempt to commit sexual assault in the first degree, which has a specific intent element. The defendant claims that this lack of notice of the charges against him violates article first, § 8, of the Connecticut constitution. We disagree.

The defendant acknowledges that he failed to preserve this issue for appeal. He asks us to afford review under the constitutional bypass doctrine of State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), as refined by State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). Because we agree with the defendant that the record is adequate to review the alleged error, and that his claim is of constitutional magnitude; see State v. Sumner, 178 Conn. 163, 166, 422 A.2d 299 (1979); we turn to consideration of whether the alleged violation clearly exists and deprived the defendant of a fair trial.

Practice Book § 867 and General Statutes § 54-60 both provide that a criminal defendant can be convicted of either the crime charged in the information or of the attempt to commit that crime. The defendant claims that these provisions failed to provide him with constitutionally adequate notice that he could be convicted of attempt to commit sexual assault in the first degree when he was charged with sexual assault in the first degree. The defendant claims that attempt to commit sexual assault is not a lesser included offense of sexual assault because it requires the additional element of specific intent to commit sexual assault.

The defendant posits that § 867 and § 54-60, both predating the existence of our penal code, reflect the common law rule that attempt to commit a crime is a lesser included offense of any crime charged. Because the legislature abolished common law crimes with the creation of the penal code; State v. Bunkley, 202 Conn. 629, 638, 522 A.2d 795 (1987); and attempt is now statutorily defined by § 53a-49 to require specific intent, the defendant points out that attempt to commit sexual assault in the first degree can no longer be considered a lesser included offense of sexual assault in the first degree. Therefore, the defendant asks us to hold that our statute and rule of practice providing notice should no longer be found effective.

We decline to adopt the defendant’s reasoning. Neither § 867 nor § 54-60 suggests that an attempt to commit a crime must necessarily be a lesser included offense to the crime. In fact, because both provisions refer separately to lesser included offenses and attempt to commit the charged offense, the defendant’s argument that attempt must be a lesser included offense for these provisions to apply is without merit. See Waterbury Petroleum Products, Inc. v. Canaan Oil & Fuel Co., 193 Conn. 208, 231-32, 477 A.2d 988 (1984) (“in construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous”); State v. Grant, 176 Conn. 17, 20, 404 A.2d 873 (1978). We hold that § 867 and § 54-60 are constitutionally sufficient to put a criminal defendant on notice that he can be convicted of an attempt to commit the crime charged as well as any lesser included offenses of the crime as charged.

II

The defendant next claims that the trial court improperly failed to instruct the jury on the definition of specific intent as an element of attempt to commit sexual assault in the first degree. The defendant failed to preserve this claim at trial and requests review under the constitutional bypass doctrine of Evans-Golding. Because the record is adequate for review and the claim is of constitutional magnitude; see State v. Jackson, 34 Conn. App. 599, 605-606, 642 A.2d 738, cert. granted, 231 Conn. 917, 648 A.2d 165 (1994); we turn to consideration of whether the alleged constitutional violation clearly exists and whether it deprived the defendant of a fair trial.

In order for us to conclude that improper jury instructions have deprived the defendant of a fair trial, we must find that, considering the substance of the charge as a whole, it is reasonably possible that the jury was misled. Id.; see also State v. Walton, 227 Conn. 32, 65-66, 630 A.2d 990 (1993). We do not find that to be true here.

As a general rule, “[w]hen a word contained in an essential element carries its ordinary meaning, failure to give the statutory definition will not constitute error.” State v. Jackson, supra, 34 Conn. App. 607-608, quoting State v. Kurvin, 186 Conn. 555, 562, 442 A.2d 1327 (1982). This rule has been applied to the omission of the statutory definition of specific intent. See, e.g., State v. Sinclair, 197 Conn. 574, 581, 500 A.2d 539 (1985); State v. Jackson, supra, 608. Because the word “intent” as used to define an element of attempted sexual assault carries its ordinary meaning, and the trial court clearly instructed the jury that intent must be found to return a verdict of guilty for that offense, the defendant cannot prevail on this claimed error. See State v. Sinclair, supra, 581. We conclude that the alleged constitutional violation did not clearly exist or deprive the defendant of a fair trial.

Ill

The defendant also claims that the trial court improperly failed to instruct the jury on the specific intent element of risk of injury to a child. We disagree.

This claim of error was not preserved at trial and the defendant seeks review under the constitutional bypass doctrine of Evans-Golding. We conclude that the record is adequate to review this claim and that it is of constitutional magnitude. See State v. Williamson, 206 Conn. 685, 708-709, 539 A.2d 561 (1988). We proceed to consideration of whether the alleged violation clearly exists and whether it deprived the defendant of a fair trial.

Section 53-21 prohibits “two general types of behavior likely to injure physically or to impair the morals of a minor under sixteen years of age: (1) deliberate indifference to, acquiescence in, or the creation of situations inimical to the minor’s moral or physical welfare . . . and (2) acts directly perpetrated on the person of the minor and injurious to his [or her] moral or physical well-being.” State v. Dennis, 150 Conn. 245, 250, 188 A.2d 65 (1963); see also State v. George, 37 Conn. App. 388, 391, 656 A.2d 232 (1995). Under the second prong, which is the prong under which the defendant was charged and the jury was instructed, there is no specific intent requirement. State v. McClary, 207 Conn. 233, 239-40, 541 A.2d 96 (1988). The four elements the jury needed to find to return a verdict of guilty are: (1) the victim was less than sixteen years old; (2) the defendant committed an act upon the victim; (3) the act was likely to be injurious to the victim’s health or morals; and (4) the defendant had the general intent to commit the act upon the victim. State v. Ostolaza, 20 Conn. App. 40, 47, 564 A.2d 324, cert. denied, 213 Conn. 808, 568 A.2d 793 (1989).

The state charged that the defendant had impaired the health or morals of the child in any of three ways: (1) giving the victim alcohol to drink; (2) fondling the victim’s genital and anal areas; and (3) digitally penetrating the victim’s vagina and anus. The defendant’s argument has two components. He first contends that the alleged violation of § 53-21 by giving the victim alcohol to drink constituted a first prong violation and not a second prong violation. He then contends that a guilty verdict under the first prong requires a jury finding of specific intent. The defendant reasons, therefore, that because there was no jury instruction on specific intent, which he claims is an essential element, his due process rights were violated. We conclude that the trial court properly limited its charge to the second prong of the risk of injury statute, and do not reach the issue of whether there is a specific intent requirement under the first prong of § 53-21.

The defendant argues that our prior case law establishes that when § 53-21 is violated by providing alcohol or drugs to a child, it is a first prong violation. We disagree. Although in both State v. Ostolaza, supra, 20 Conn. App. 40, and State v. Mancinone, 15 Conn. App. 251, 545 A.2d 1131, cert. denied, 209 Conn. 818, 551 A.2d 757 (1988), cert. denied, 489 U.S. 1017, 109 S. Ct. 1132, 103 L. Ed. 2d 194 (1989), the trial court instructed the jury that providing alcohol or drugs to children could lead to a finding that the defendant was guilty of a first prong violation, these cases do not exclude the possibility that in some circumstances providing alcohol to a child can be a second prong violation.

In both Ostolaza and Mancinone, the victims were teenagers and the state alleged that the defendant had made alcohol and marijuana available to the victims or had given alcohol and marijuana to the victims for their personal use. In this case, the defendant handed a cup containing rum to the four year old victim who had requested something to drink. This is not the creation of a situation that might cause injury to the child. Instead, due to the age of the victim, this is an act directly perpetrated upon a child that is likely to impair the health or morals of the child. Thus, the trial court did not improperly fail to instruct the jury on specific intent, which is not an element under the second prong of § 53-21.

IV

The defendant’s final claim is that the trial court improperly revoked his probation without consideration of the whole record. The following facts are relevant to this claim. When the defendant was arrested for the assault of the victim, he was also arrested for violation of probation. By motion of the state, the trial court considered the evidence presented at the trial on the assault of the victim in determining whether there had been a violation of probation. After the jury returned its verdict, the trial court found a violation of probation and asked if the defendant wanted to be heard prior to sentencing on the violation of probation. The defendant’s trial attorney was absent, and a continuance was granted to allow his trial counsel to appear and address the court prior to sentencing. At the sentencing proceedings, after argument by counsel, the trial court discussed the defendant’s limited prospects for rehabilitation and the danger he posed to other children. Then, in addition to sentencing the defendant for the attempt to commit sexual assault in the first degree and risk of injury to a child, the trial court ordered the defendant’s probation revoked.

Pursuant to General Statutes § 53a-32, “a probation revocation hearing has two distinct components. . . . The trial court must first conduct an adversarial eviden-tiary hearing to determine whether the defendant has in fact violated a condition of probation. ... If the trial court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked. On the basis of its consideration of ‘the whole record,’ the trial court ‘may continue or revoke the sentence of probation . . . ’ [i]n making this second determination, the trial court is vested with broad discretion.” (Citation omitted.) State v. Davis, 229 Conn. 285, 289-90, 641 A.2d 370 (1994). The decision whether to revoke probation depends on the trial court’s determination of “whether the defendant should be incarcerated because the rehabilitative purpose of probation cannot continue to be served.” State v. Navikaukas, 12 Conn. App. 679, 682, 533 A.2d 1214 (1987), cert. denied, 207 Conn. 804, 540 A.2d 74 (1988); see also State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988).

The defendant argues that “the court’s willingness to sentence the defendant immediately upon a finding of a violation of probation reflects the trial court’s belief that a finding of a violation alone was sufficient to revoke the defendant’s probation,” and that the trial court’s failure to review the whole record before ordering that his probation be revoked violated his due process rights. The defendant admits, however, that he failed to preserve this claim at trial, and asks for review under the constitutional bypass doctrine of Evans-Golding.

We decline to afford review of this claim because the record is not adequate for review. The defendant’s contention that the trial court “failed to review the whole record” is premised on speculation. The trial court, after finding a violation of probation, exercises broad discretion in deciding whether to revoke probation. State v. Davis, supra, 229 Conn. 290. Although the subsidiary facts supporting the finding of a violation must be explicitly set forth in the trial court’s decision, the trial court is not required to explicate the subsidiary findings supporting its conclusion that probation should be revoked. See State v. Baxter, 19 Conn. App. 304, 321, 563 A.2d 721 (1989); State v. Navikaukas, supra, 12 Conn. App. 683-84. On appellate review, we presume, in the absence of any indication to the contrary, that the trial court impliedly found that the beneficial purposes of probation are no longer being served, as long as the record reveals that the finding was reasonable. See State v. Smith, supra, 207 Conn. 167; State v. Baxter, supra, 321; State v. Navikaukas, supra, 684.

In this case, the record reveals that the defendant was on probation and, as a condition of probation, he was not to violate any of the laws of this state. The defendant was arrested and charged with sexual assault in the first degree and risk of injury to a child. At the trial on these charges the jury found, beyond a reasonable doubt, that the defendant had committed attempted sexual assault in the first degree on a four year old child and risk of injury to that child. The trial court, considering the evidence from the trial, made an independent determination, explicitly set forth in the record, that the defendant had violated his probation.

When defense counsel addressed the court prior to sentencing, the plea for leniency in sentencing revolved around the minimization of the seriousness of the offenses and the profound impact the sentence would have on the defendant’s grandmother. After defense counsel’s argument, the trial court observed that the defendant’s denial of the charges of which he had been convicted was indicative of his failure to utilize the rehabilitative aspects of his probation. The trial court also commented that the seriousness of the crimes demonstrated that the defendant posed a serious risk to society, especially other young children. The trial court then concluded that in addition to the sentence for the attempted sexual assault and risk of injury to a child, the defendant’s probation should be revoked. We find that the record supports the presumption that the trial court impliedly found that the beneficial purposes of probation were not being served. Because the defendant does not refer to any part of the record to support his argument that the trial court did not consider “the whole record” in reaching this conclusion, the record is inadequate to support his contention. Accordingly, we conclude that the defendant’s unpreserved claim is not entitled to review.

The judgments are affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-49 provides in relevant part: “(a) A person is guilty of an attempt to commit a crime if, acting with the kind of mental state required for commission of the crime, he . . . (2) intentionally does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

       General Statutes § 53a-70 provides in relevant part: “(a) 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? 53-21 provides: “Anypersonwho 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.”

         The constitution of Connecticut, article first, § 8, provides in relevant part: “In all criminal prosecutions, the accused shall have a right ... to be informed of the nature and cause of the accusations . . . .”

       “In State v. Golding, [supra, 213 Conn. 239-40] our Supreme Court reformulated the test of reviewability in [State v. Evans, supra, 165 Conn. 61]. The Golding court held that when a defendant fails to preserve his claim at trial he can prevail on that claim 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.” (Internal quotation marks omitted.) State v. Velez, 30 Conn. App. 9, 20-21, 618 A.2d 1362 (1993); State v. Gamble, 27 Conn. App. 1, 13, 604 A.2d 366, cert. denied, 222 Conn. 901, 606 A.2d 1329 (1992); see also State v. Walker, 33 Conn. App. 763, 768-69, 638 A.2d 1084, cert. denied, 229 Conn. 913, 642 A.2d 1209 (1994). The first and second prongs of the Golding test dictate whether an issue will be reviewed, and the third and fourth prongs constitute review of the issue on its merits. State v. Avila, 223 Conn. 595, 602, 613 A.2d 731 (1992); Wilson v. Cohen, 222 Conn. 591, 603, 610 A.2d 1177 (1992).

       Practice Book § 867 provides in relevant part: “The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein, if the attempt is an offense.”

       General Statutes § 54-60 provides: “Whenever any indictment, information or complaint is pending before any court, a conviction may be had for any offense sufficiently alleged therein or for an attempt to commit such offense, and the accused may be convicted or such court may accept a plea of guilty for any of such offenses.”

       See footnote 1.

       Rules of statutory construction apply with equal force to Practice Book provisions. State v. Carey, 25 Conn. App. 421, 426, 594 A.2d 1011 (1991), rev’d, 222 Conn. 299, 610 A.2d 1147 (1992).

       See footnote 5.

       The jury charge included the following language: “Our law provides that a person is guilty of an attempt to commit a crime if, acting with the same kind of mental state required for commission of the crime, he intentionally does anything which, under the circumstances as he believes them to be, is an act constituting a substantial step in a course of conduct planned to culminate in his commission of the crime. In order for you to convict on this offense of attempted sexual assault in the first degree, then, you must be satisfied, first, that the defendant acted with the intent to engage in sexual intercourse, as I’ve defined that term

       See footnote 5.

       See footnote 3.

       The jury charge provided in relevant part: “Now, turning to the second count, the defendant is charged with the offense of injury or risk of injury to a child, in violation of our General Statutes. Insofar as the statute applies here, it says, ‘Any person who does any act likely to impair the health or morals of a child under the age of sixteen years is guilty of this offense.’ This statute prohibits act directly—acts rather—directly perpetrated on the person of a minor under the age of sixteen and injurious to . . . her health. . . .

        “Now, again, the information sets forth a number of ways in which the crime can be committed; you do not have to be convinced beyond a reasonable doubt of all of those ways, but you all must be convinced unanimously, beyond a reasonable doubt, of at least one single set of facts sufficient to satisfy each of the necessary elements of the crime charged ....
      “The jury has to unanimously agree on at least one set of facts sufficient to satisfy each of the necessary elements of the crime charged, and in this case the state alleged the alcohol to drink, the fondling of genital and anal areas, and the penetration both vaginally and anally with the defendant’s finger or fingers.”

       The defendant concedes that the evidence was sufficient to allow the jury to find that the defendant had violated § 53-21 by fondling the victim’s genital and anal areas. We must address the defendant’s claim as to the possibility that giving alcohol to the victim was afirst prong violation because when the jury is charged with two modes of committing a crime, and each mode involves different elements, the possibility that the conviction could rest on either mode requires a properjury instruction on each mode or the conviction does not comport with due process. See Yates v. United States, 354 U.S. 298, 312, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (1957).

       The state provided evidence of the possible detrimental physical effects of alcohol on a four year old child.

       Another attorney from the office of the defendant’s trial attorney was present when the jury returned its verdict. That attorney, however, requested a continuance so the defendant could be represented by his trial counsel during the sentencing proceedings.

       See footnote 5.

       Our conclusion that the record is not adequate to establish that the trial court failed to follow the statutory procedures also dictates that plain error review pursuant to Practice Book § 4185 is inappropriate. Compare State v. Burke, 182 Conn. 330, 331-32, 438 A.2d 93 (1980) (“[wjhere the legislature has chosen specific means to effectuate a fundamental right, failure to follow the mandatory provisions of the statute is plain error, reviewable by this court”).


source: Caselaw Access Project

author: SPEAR, J.

license: Public Domain

text:
    AMY JEANNE CONWAY v. TOWN OF WILTON ET AL.
    (13524)
    Landau, Schaller and Spear, Js.

      Argued May 22
    decision released September 12, 1995

      David T. Grudberg, with whom, on the brief, was Ira B. Grudberg, for the appellant (plaintiff).

      Raymond J. Plouffe, Jr., with whom, on the brief, was Kevin S. Coyne, for the appellees (named defendant et al.).

      Hugh W. Cuthbertson, with whom, on the brief, was Dana Shaw MacKinnon, for the appellee (defendant Connecticut Association of Schools).
   SPEAR, J.

The plaintiff, Amy Jeanne Conway, brought an action against the town of Wilton (town), David Dixon and the Connecticut Association of Secondary Schools (association), for personal injuries sustained while participating in a state high school tennis tournament on premises owned by the town and sponsored by the association. The trial court granted the defendants’ motions for summary judgment, ruling that they were immune from liability pursuant to the Connecticut Recreational Land Use Act, General Statutes § 52-557Í et seq.

On appeal, the plaintiff claims that the trial court improperly granted the motions for summary judgment because (1) the act as applied to the plaintiff violates article first, § 10, of the Connecticut constitution, (2) the association owed a duty to the plaintiff that is independent of the act, and (3) Dixon and the town failed to make the premises “available to the public,” and, therefore, are not entitled to statutory immunity. We disagree and affirm the judgment of the trial court.

“The standard for appellate review of a trial court’s decision to grant a summary judgment motion is well established. Practice Book § 384 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Connecticut Bank & Trust Co. v. Carriage Lane Associates, 219 Conn. 772, 780-81, 595 A.2d 334 (1991); Lees v. Middlesex Ins. Co., 219 Conn. 644, 650, 594 A.2d 952 (1991). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact; D.H.R. Construction Co. v. Donnelly, 180 Conn. 430, 434, 429 A.2d 908 (1980); a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Practice Book §§ 380, 381; Burns v. Hartford Hospital, [192 Conn. 451, 455, 472 A.2d 1257 (1984)]. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Town Bank & Trust Co. v. Benson, 176 Conn. 304, 309, 407 A.2d 971 (1978). Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). The test is whether a party would be entitled to a directed verdict on the same facts. Batick v. Seymour, 186 Conn. 632, 647, 443 A.2d 471 (1982).” (Internal quotation marks omitted.) New Milford Savings Banke v. Roina, 38 Conn. App. 240, 243-44, 659 A.2d 1226 (1995).

The facts, as viewed in the light most favorable to the plaintiff, are as follows. On June 9, 1986, the Connecticut Interscholastic Athletic Conference (conference) held a championship tennis tournament for high school girls at the Wilton High School tennis courts. No fee was charged for the use of the tennis courts. During the tennis tournament, the plaintiff, a competitor in the tournament, fell because of an alleged defect in the courts and sustained serious injuries to her knee and ankle. In her personal injury action, the plaintiff alleged that the proximate cause of her injuries was the negligence of Dixon and his staff in maintaining the tennis courts and the negligence of the association in selecting the allegedly faulty court for the tournament.

I

We first address the plaintiffs claim that the recreational use statute violates the “open courts” provision of article first, § 10, of the Connecticut constitution. She asserts that, “[i]f viewed as a limitation on the right to redress for an injury caused by negligence, the restriction under consideration stands contrary to the mandate of article first, § 10, and thus must fall.” Gentile v. Altermatt, 169 Conn. 267, 284, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976).

This court previously rejected a similar constitutional attack on the recreational use statute in Genco v. Connecticut Light & Power Co., 7 Conn. App. 164, 508 A.2d 58 (1986). In Genco, we concluded that the statute “does not restrict the right to redress for an actionable injury but, rather, redefines the injury or the class of persons injured to which this constitutional right of redress attaches. . . . Thus, the right of redress for injury is constitutional in its nature but the nature of a specific injury is a right derived from the common law or statute. ... A statute limiting the liability of owners who provide the public with park area for outdoor recreational purposes is a reasonable exercise of legislative power, and it does not violate the constitutional provision that the courts shall be open to every person for redress of any injury.” (Citation omitted; internal quotation marks omitted.) Id., 173-74.

General Statutes § 52-557g provides that an injury caused by negligence or nuisance on land provided for public recreational use is not an actionable injury. Consequently, such injury is not subject to preservation under article first, § 10, of the Connecticut constitution. “What is of constitutional dimensions, then, is the right of redress and not the nature of the particular injury for which redress is sought. Stated differently, the right to redress in the courts must remain inviolate but it does not attach unless one suffers a recognized injury.” Gentile v. Altermatt, supra, 169 Conn. 284. Consistent with prior cases, we conclude that the act does not violate article first, § 10, of the Connecticut constitution.

II

The plaintiff next claims that during the tennis tournament the association owes a duty to the athletes that is independent of its role as “owner,” and that such duty is not affected by the immunity protection of § 52-557g. She argues that a public school “authority owes a duty of ordinary care under the circumstances to participants in . . . athletic events sponsored, or conducted under the auspices of, such authority.” 35 A.L.R.3d 734 (1971). The alleged duty turns on the relationship between an academic institution and its students. The plaintiff further claims that this issue involved a finding of fact, and that the trial court erroneously rendered summary judgment in light of the existence of a disputed fact. We disagree.

General Statutes § 52-557h provides only two exceptions to immunity from liability under this statute: (1) if a fee is charged for the use of the land; or (2) if the landowner wilfully or maliciously fails to warn against a dangerous condition. The plaintiff does not allege that either of the exceptions apply. It is well settled that a court cannot read additional exceptions into a statute where the legislature has neglected or chosen not to do so. See Vaillancourt v. New Britain Machine/Litton, 224 Conn. 382, 396, 618 A.2d 1340 (1993); Colli v. Real Estate Commission, 169 Conn. 445, 452, 364 A.2d 167 (1975). Furthermore, in Manning v. Barenz, 221 Conn. 256, 603 A.2d 399 (1992), our Supreme Court expressly rejected a similar claim. The court in Manning held that the defendant, employees of the landowner, “must be considered within the definition of ‘owners’ by reason of their being ‘persons in control of the premises’ .... To hold otherwise would render the statute meaningless. The plaintiffs could completely bypass this legislation by simply bringing suit against [an owner’s employees].” Id., 262. The end result could be that the protected parties would be liable for the damages from which they are immune by § 52-557g.

To hold that the association owed a supplemental duty of care would effectively circumvent § 52-557g. That statute explicitly defines an injury on land open to the public for recreational purposes as nonactionable. It provides that “no duty of care” is owed to persons entering the land for recreational purposes and that the landowner does not “[m]ake any representation that the premises are safe for any purpose.” General Statutes § 52-557g (b) (1). The statute also provides that the landowner does not “assume responsibility for or incur liability for any injury . . . .” General Statutes § 52-557g (b) (3). The association falls within the statutory definition set forth in § 52-557f (3) as an “owner” by being a “person in control of the premises.” The association is consequently immune from liability for the plaintiffs injuries that resulted from her fall on premises covered by the recreational use statute. The plaintiffs claim that an issue of material fact exists is without merit because “[t]he question whether the statute applies is a matter of law and, since no genuine issue of material facts relevant to this determination exists, summary judgment is appropriate.” Jennett v. United States, 597 F. Sup. 110, 112 (D. Conn. 1984).

Ill

The plaintiffs remaining claim is that a genuine issue of material fact existed as to whether the property was made available to the public as required by § 52-557g. We disagree.

In order to prevail on their motion for summary judgment, Dixon and the town, had the burden of proving that the land was made available to the public for the purposes of recreation and that no fee was charged for the use of the premises pursuant to § 52-557g. In support of their motion, they submitted the affidavits of town attorney G. Kenneth Bernhard and parks and recreation director Steve Pierce. The fact that no fee was charged was unchallenged. On December 19, 1990, Pierce, in answer to an interrogatory propounded by the plaintiff, stated that the tennis courts were not available to the public during the tennis tournament. In his affidavit of July 15, 1992, however, Pierce stated that “said tennis courts were open for public/recreational use at the site of the [conference] High School Girls’ Tournament.” The plaintiff claims that this apparent inconsistency is a disputed issue of material fact. Our Supreme Court has previously decided that because only one group of users can access a particular facility at a given time does not mean that the public has no access. It simply means that physical limitations preclude simultaneous unlimited access to a facility at all times by all members of the public. See Scrapchansky v. Plainfield, 226 Conn. 446, 452-54, 627 A.2d 1329 (1993).

The legislature has defined “recreational purpose” in § 52-557g as, including, but not limited to, recreational activities, several of which are competitive team sports. “Team sports are certainly recreational and no less so if teams are organized into a league. . . . Because an amateur sport is organized and played by teams does not deprive it of its recreational qualities. To conclude otherwise would be to impose an overly restrictive meaning on the term ‘recreational purpose’ in the statute, a meaning that is not warranted by the ‘includes, but is not limited to’ language of § 52-557Í (4).” (Citation omitted.) Id., 457-58. The Supreme Court in Scrapchan-sky recognized that certain team sports necessarily place limitations on the land’s status as “available to the public.” Id., 452-53. There is no inconsistency, and, therefore, there is no genuine issue of material fact in dispute. Therefore, the trial court properly granted the town’s and Dixon’s motion for summary judgment.

The judgment is affirmed.

In this opinion the other judges concurred.

       Dixon was the parks and recreation director for the town at the time of the incident.

       The Connecticut Association of Secondary Schools is now named the Connecticut Association of Schools.

       General Statutes § 52-557Í provides: “As used in sections 52-557Í to 52-557i, inclusive:
      “(1) ‘Charge’ means the admission price or fee asked in return for invitation or permission to enter or go upon the land;
      “(2) ‘Land’ means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty;
      “(3) ‘Owner’ means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises;
      “(4) ‘Recreational purpose’ includes, but is not limited to, any of the following, or any combination thereof: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, snow skiing, ice skating, sledding, hang gliding, sport parachuting, hot air ballooning and viewing or enjoying historical, archaeological, scenic or scientific sites.”
      General Statutes § 52-557g provides: “(a) Except as provided in section 52-557h, an owner of land who makes all or any part of the land available to the public without charge, rent, fee or other commercial service for recreational purposes owes no duty of care to keep the land, or the part thereof so made available, safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure or activity on the land to persons entering for recreational purposes.
      “(b) Except as provided in section 52-557h, an owner of land who, either directly or indirectly, invites or permits without charge, rent, fee or other commercial service any person to use the land, or part thereof, for recreational purposes does not thereby: (1) Make any representation that the premises are safe for any purpose; (2) confer upon the person who enters or uses the land for recreational purposes the legal status of an invitee or licensee to whom a duty of care is owed; or (3) assume responsibility for or incur liability for any injury to person or property caused by an act or omission of the owner.
      “(c) Unless otherwise agreed in writing, the provisions of subsections (a) and (b) of this section shall be deemed applicable to the duties and liability of an owner of land leased to the state or any subdivision thereof for recreational purposes.”
      General Statutes § 52-557h provides: “Nothing in sections 52-557Í to 52-557i, inclusive, limits in any way the liability of any owner of land which otherwise exists: (1) For wilful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; (2) for injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that, in the case of land leased to the state or a subdivision thereof, any consideration received by the owner for the lease shall not be deemed a charge within the meaning of this section.”
      General Statutes § 52-557Í provides: “Nothing in sections 52-557Í to 52-557i, inclusive, shall be construed to reheve any person using the land of another for recreational purposes from any obligation which he may have in the absence of said sections to exercise care in his use of such land and in his activities thereon, or from the legal consequences of failure to employ such care.”

       The Connecticut constitution, article first, § 10, provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice without sale, denial or delay.”

       The plaintiff also claims that Scrapchansky v. Plainfield, 226 Conn. 446, 627 A.2d 1329 (1993) (league baseball game was recreational purpose as contemplated by act) and Manning v. Barenz, 221 Conn. 256, 603 A.2d 399 (1992) (municipalities and their employees are entitled to immunity from liability for injuries sustained on land available to public for recreational purposes) should be overruled. Because the Appellate Court cannot overrule a Supreme Court decision, we will not review the claim. See Lash v. Aetna Casualty & Surety Co., 36 Conn. App. 623, 624-25, 652 A.2d 526 (1995). The plaintiff makes this claim only to preserve it in the event of Supreme Court review.

       The conference, an extension of the association, directs and controls athletic competition between the secondary schools of Connecticut.

       See footnote 4.

       The plaintiff cites to no case involving an immunity statute, such as the act, where an independent duty to competitors in athletics is recognized.

       Pierce is the current parks and recreation director for the town.


author: DUPONT, C. J.

text:
    SUZANNE SANBORN v. CHARLES C. GREENWALD
    (13372)
    Dupont, C. J., and Lavery and Hennessy, Js.
    Argued April 25
    decision released September 12, 1995

      Gerald S. Sack, with whom was Michael B. Pollack, for the appellant (plaintiff).

      Robyn L. Sondak, for the appellee (defendant).
   DUPONT, C. J.

The plaintiff appeals from the judgment that followed the granting of the defendant’s motion for summary judgment by the trial court, Hammer, J., in this action for legal malpractice. On appeal, the plaintiff claims that the trial court improperly held that General Statutes § 52-577 (1) was not tolled by an alleged continuing course of conduct on the part of the defendant and (2) was constitutional as applied to her. We affirm the judgment of the trial court.

Certain background facts are relevant to the issues in this case. In 1982, the plaintiff divorced her husband. The dissolution judgment required, inter aha, that the plaintiffs husband pay support and alimony, convey his interest in the marital home to the plaintiff, and continue to pay the second mortgage on the marital home. The plaintiff was to fund a trust in the amount of $25,000 for the benefit of their minor child upon the happening of certain stated contingencies, such as her cohabitation or remarriage, or the sale of the family residence.

Both parties in the present case filed affidavits, the defendant to show that he was entitled to summary judgment, and the plaintiff to show that the defendant was not. The affidavits provided the following additional facts, which are not disputed by either party. In 1984, the plaintiff retained the defendant as her attorney to pursue contempt proceedings against her former husband on the ground that he had failed to comply with the orders of the dissolution judgment. After the trial court ruled favorably on the plaintiffs motion, the parties began negotiations to modify the terms of the judgment. The defendant advised the plaintiff that it would be in her best interest to assume the second mortgage on the marital home, to accept less money for support payments, and to forgive any arrearages in support and alimony payments, in exchange for the deletion of her obligation to fund the trust. The defendant drafted a proposed stipulation to modify the dissolution judgment in accordance with his advice and the plaintiff signed the stipulation in reliance on the defendant’s representation that she would no longer be obligated to fund the trust.

In September, 1985, after the stipulation was approved by the court, the defendant mailed a copy to the plaintiff, as well as a copy of the recorded quitclaim deed of her former husband’s interest in the marital home. The cover letter instructed the plaintiff to contact him if she had any questions regarding the documents. The defendant’s affidavit claims that his representation of the plaintiff ended at this time.

In 1989, the plaintiffs former husband threatened to file a motion for contempt against the plaintiff for her failure to fund the trust. The plaintiff retained a new attorney, who then spoke to the defendant about the plaintiffs legal obligations under the stipulation. The defendant advised the plaintiffs attorney that pursuant to the stipulated modification of the judgment, the plaintiff was not required to fund the trust. On two other occasions, both in 1990, the defendant represented to the plaintiffs attorney that the plaintiff was not required to fund the trust under the terms of the stipulation he had drafted.

The plaintiffs former husband initiated contempt proceedings against the plaintiff, and on August 3,1990, the plaintiff was ordered to fund the trust and to pay her husband’s attorney’s fees of $1060. The plaintiff filed a transcript of those proceedings, along with her affidavit in this action. The transcript indicates that despite the defendant’s attempt, he was not allowed to testify that the intent of the stipulation was to absolve the plaintiff of her obligation to fund the trust. The trial court, Jackaway, J., which ordered the trust to be funded, commented that the stipulation was poorly drafted but that it was not ambiguous, and that, therefore, any testimony as to intent was irrelevant. The court further stated that there was no provision at all in the stipulation relating to the funding of the trust. The plaintiffs affidavit provides that on June 25, 1990, the date of the contempt hearing, the defendant not only attempted to testify in her behalf but also advised her that she did not need to fund the trust.

The plaintiff commenced this action against the defendant on July 9, 1992. The plaintiff claims that the defendant negligently drafted the modification and negligently failed to warn and advise her of the legal consequences of the modification, which failure to warn and advise continued until August 3,1990, the date the court ordered her to fund the trust. The defendant, by way of special defenses, alleged that General Statutes §§ 52-581, 52-576 and 52-577 barred the plaintiffs recovery because his representation of her ceased on August 20, 1984. The defendant moved for summary judgment arguing that the plaintiffs claim was time barred by the statute of limitations. The court granted the motion on the basis that there was no genuine issue of material fact in dispute and the defendant was entitled to judgment as a matter of law because her action was barred by § 52-577, the general tort statute of limitations.

The plaintiff later filed a motion to vacate and reargue the summary judgment motion, claiming that § 52-577, as interpreted and applied by the court, was unconstitutional as violative of article first, § 10, of the Connecticut constitution. The court granted the motion to reargue but denied the plaintiffs claim that the statute of limitations was unconstitutional.

“Practice Book § 384 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . Even though the burden of showing the nonexistence of any material fact is on the party that seeks summary judgment, the party opposing [summary judgment] must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. . . . When called on to decide a motion for summary judgment, the trial court is required to construe the evidence in the light most favorable to the nonmoving party. . . . The test to be applied by the trial court is whether, on the same facts, a party would be entitled to a directed verdict.” (Citations omitted; internal quotation marks omitted.) Starkweather v. Patel, 34 Conn. App. 395, 400-401, 641 A.2d 809, cert. denied, 230 Conn. 905, 644 A.2d 918 (1994). Summary judgment is appropriate where the action is barred by the statute of limitations. Shuster v. Buckley, 5 Conn. App. 473, 477, 500 A.2d 240 (1985).

While this action would ordinarily be barred by the statute of limitations because it was brought approximately seven years after the date of the alleged negligent drafting of the stipulation, the plaintiff asserts that the representations made by the defendant in 1989 and 1990 to her, her attorney, and the trial court, constitute a continuing course of conduct that tolls the statute of limitations.

Neither at oral argument on the defendant’s motion for summary judgment nor in her brief did the plaintiff claim that she was seeking damages for any negligent representation in the drafting of the modification of the original dissolution judgment. She did claim, however, that she was seeking damages for the defendant’s negligent advice and negligent failure to warn during 1989 and 1990. While the defendant did not claim that the defendant represented her after 1985, her claim is that the defendant had a duty to warn and to advise correctly that extended beyond the time of his representation of her. She argues that the duty exists because of the defendant’s later wrongful conduct in dispensing bad advice, consisting of an erroneous interpretation of the stipulation, which related to his prior act of negligent draftsmanship. The plaintiff thus raises the question of whether the statute of limitations was tolled by the continuing course of conduct doctrine as explicated in cases such as Blanchette v. Barrett, 229 Conn. 256, 640 A.2d 74 (1994), and Fichera v. Mine Hill Corp., 207 Conn. 204, 541 A.2d 472 (1988).

“When the wrong sued upon consists of a continuing course of conduct, the statute does not begin to run until that course of conduct is completed.” Handler v. Remington Arms Co., 144 Conn. 316, 321, 130 A.2d 793 (1957). “[I]n order [t]o support a finding of a continuing course of conduct that may toll the statute of limitations there must be evidence of the breach of a duty that remained in existence after commission of the original wrong related thereto. That duty must not have terminated prior to commencement of the period allowed for bringing an action for such a wrong. . . . Where [our Supreme Court has] upheld a finding that a duty continued to exist after the cessation of the act or omission relied upon, there has been evidence of either a special relationship between the parties giving rise to such a continuing duty or some later wrongful conduct of a defendant related to the prior act.” (Internal quotation marks omitted.) Blanchette v. Barrett, supra, 229 Conn. 275. The continuing course of conduct doctrine is “conspicuously fact-bound.” Id., 276.

The plaintiffs amended complaint, on which she relies for her cause of action, claims that the defendant “negligently failed to warn and advise the plaintiff concerning the legal consequences of the modification he prepared . . . .” The plaintiff argues that the representations made by the defendant in 1989 and 1990, concerning the effects of the stipulation are wrongful acts connected with the “prior bad act” of the drafting of the stipulation, and that this evidence is sufficient to toll the statute of limitations under the continuing course of conduct doctrine. We disagree.

“The continuing course of conduct doctrine reflects the policy that, during an ongoing relationship, lawsuits are premature because specific tortious acts or omissions may be difficult to identify and may yet be remedied.” Id. For example, the doctrine is generally applicable under circumstances where “[i]t may be impossible to pinpoint the exact date of a particular negligent act or omission that caused injury” or where the negligence consists of a series of acts or omissions and it is “appropriate to allow the course of [action] to terminate before allowing the repose section of the statute of limitations to run . . . .” Id., 277.

The application of the continuing course of conduct doctrine necessitates an examination of the cases in which the statute of limitations was tolled on the basis of that doctrine. In Blanchette v. Barrett, supra, 229 Conn. 256, the statute of limitations was tolled because of evidence that the defendant physician had failed to satisfy his duty of monitoring the plaintiffs questionable breast condition. The court considered this to be later wrongful conduct that related to the defendant’s diagnosis of the plaintiff. Id., 275. In Cross v. Huttenlocher, 185 Conn. 390, 440 A.2d 952 (1981), the statute of limitations was tolled because of the negligent failure of a physician to warn a patient of the harmful side effects of a drug that the physician had prescribed and that the patient had continued to ingest over a period of time. In Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 429 A.2d 486 (1980), the statute of limitations was tolled because the installer of a pilot light gave repeated instructions as to its use in response to multiple complaints by the plaintiff. In Handler v. Remington Arms Co., supra, 144 Conn. 316, the statute of limitations was tolled by the defendant manufacturer’s continuing failure to warn of the potential danger associated with an inherently dangerous cartridge of ammunition. In each of these cases, the plaintiffs injury was perpetuated, enhanced and even caused by the breach of a duty on the part of the defendant.

The plaintiff relies on the language of Fichera v. Mine Hill Corp., supra, 207 Conn. 210, that a duty may continue to exist after the cessation of the act relied on if there is evidence of either a special relationship between the parties giving rise to a continuing duty or some later wrongful conduct of a defendant related to the prior act. The defendant here did not engage in any affirmative conduct initiated by him after 1985, made no promise after the initial drafting of the stipulation that he would do something else in the future, had no fiduciary or contractual relationship with the plaintiff in 1989 or 1990, and committed no fraud. The absence of any such facts in Fichera led to the conclusion that the statute of limitations was not tolled. A plaintiff should not be allowed to keep a legal malpractice action alive after the lawyer-client relationship has ended by telephoning the attorney every three years to obtain verification that something the attorney had drafted previously would not cause the plaintiff harm.

The defendant here had no continuing duty to notify the plaintiff of the alleged mistake in the stipulation in the absence of proof that he subsequently learned that his drafting was negligent. See Blanchette v. Barrett, supra, 229 Conn. 284; see also Nardi v. AA Electronic Security Engineering, Inc., 32 Conn. App. 205, 213, 628 A.2d 991 (1993). Without a duty, there can be no breach of duty. The defendant’s professional representation had ended and the statements that the defendant made to the plaintiffs new attorney neither created nor perpetuated any duty to the plaintiff. Further, the defendant was not capable of remedying any problems with the stipulation once it had been approved by the trial court in 1985.

There is no tolling of statutes of limitations in either tort or contract actions for the failure of an attorney to tell a client that a document drafted by the attorney could be inaccurate because, once the representation of the client is complete and the document executed, any warning would be ineffective. See Robbins v. McGuinness, 178 Conn. 258, 262, 423 A.2d 897 (1979). The doctrine of continuing course of conduct as used to toll a statute of limitations is better suited to claims where the situation keeps evolving after the act complained of is complete, such as medical malpractice, rather than one where the situation cannot change, such as legal malpractice arising from negligent drafting of the written word.

The trial court found that there were no facts from which to conclude that the defendant had any continuing duty beyond the time his representation of the plaintiff ended. There is no contest here relating to the resolution of a material fact but, rather, a contest over the legal significance of the facts. The trial court was correct. There are no allegations of facts in the complaint to support a continuing duty of the defendant. Bartha v. Waterbury House Wrecking Co., 190 Conn. 8, 13, 459 A.2d 115 (1983). Because there is no material fact in issue we must now determine whether the defendant is entitled to judgment as a matter of law. If § 52-577 is constitutional, we must uphold the summary judgment rendered for the defendant; if § 52-577 is unconstitutional, we must set the judgment aside.

The plaintiff argues that § 52-577 is unconstitutional under article first, § 10, of the Connecticut constitution, which provides that “[a]ll courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” The plaintiff claims that § 52-577 violates the constitution by restricting the common law right of action for legal malpractice based on negligence without providing her with a reasonable statutory alternative to the enforcement of that right. Her claim is to be tested by the effect of the statute on her under the facts of this case and not under some other circumstances. Pierce v. Albanese, 144 Conn. 241, 251, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S. Ct. 36, 2 L. Ed. 2d 21 (1957).

“We recognize that a party challenging the constitutionality of a statute must prove its unconstitutionality beyond a reasonable doubt. . . . While the courts may declare a statute to be unconstitutional, our power to do this should be exercised with caution, and in no doubtful case. . . . Every presumption is to be given in favor of the constitutionality of the statute.” (Citations omitted; internal quotation marks omitted.) Fair Cadillac-Oldsmobile Isuzu Partnership v. Bailey, 229 Conn. 312, 316, 640 A.2d 101 (1994); see Sassone v. Lepore, 226 Conn. 773, 778-79, 629 A.2d 357 (1993).

“Article first, § 10, has been viewed as a limitation upon the legislature’s ability to abolish common law and statutory rights that existed in 1818, when article first, § 10, was adopted, and which were incorporated in that provision by virtue of being established by law as rights the breach of which precipitates a recognized injury .... Therefore, where a right existed at common law or by statute in 1818 and became incorporated into the Connecticut constitution by the adoption of article first, § 10, the legislature may restrict or abolish such incorporated right only where it provides a reasonable alternative to the enforcement of such right.” (Citations omitted; internal quotation marks omitted.) Ecker v. West Hartford, 205 Conn. 219, 234, 530 A.2d 1056 (1987).

The right at issue in this case is the ability to sue in tort for legal malpractice. This right did exist at the time our constitution was adopted and can be traced back to the English common law action of trespass on the case. As Zephaniah Swift stated in 1796, “[a]ttornies in consequence of any neglect, mismanagement or corruption, by which the client suffers any loss, either in his suit or otherwise, shall be liable to pay all damages to the party injured.” 2 Z. Swift, A System of the Laws of the State of Connecticut (1796), p. 114; see also Huntington v. Rumnill, 3 Day (Conn.) 390, 396 (1809).

At the time our constitution was adopted in 1818, however, there was no statute of limitations that restricted this type of action, although there were statutes of limitation restricting other causes of action. In May, 1819, a committee was appointed “to examine the statute laws, and to recommend such alterations and provisions as should be necessary and expedient to render the statutes conformable to the constitution.” Preface, Connecticut General Statutes (1821) p. viii. In 1821, the committee reported to the legislature in accordance with their mandate. A bill repealing certain statutes and enacting others was passed pursuant to their report. One of the statutes enacted was § 4 of title 59, entitled “Limitations. An Act for the Limitation of Civil Actions, and of Criminal Prosecutions,” which provided: “No action of trespass on the case shall be brought but within six years next after the right of action shall accrue.” The commentary to title 59 provides: “(2) Statutes of limitation are properly called statutes of repose; as they prevent disputes of long standing, which are highly prejudicial to the interests of the community. Though statutes of this kind have been enacted from time to time, yet there were many cases to which they did not extend. By the former statutes, there was no limitation to action of account, assumpsit on written or implied contracts, or trespass on case, except for slander. The present statute is intended to limit all actions, to a reasonable time. In the former statutes, the limitation was confined to bonds, bills or notes, for money only; and where the condition or contract was for any other thing, there was no limitation. As there can be no reason for such a distinction, it is here omitted.” The statutes of limitation for the commencement of actions of trespass on the case has been recognized as existing in 1821. Miner v. McNamara, 82 Conn. 578, 580, 74 A. 933 (1909).

We look “to the available . . . law in reasonable temporal proximity to the adoption of the constitution of 1818 to enhance our understanding of the original intent of the constitutional framers.” State v. Joyner, 225 Conn. 450, 462, 625 A.2d 791 (1993). Because the mandate of the committee was to render statutes that conformed to the constitution and because that was the purpose of passage of the “limitations,” we begin our analysis by using the six year accrual statute as that which governed legal malpractice as of the time of the constitution. We conclude that there was then a common law right to sue for legal malpractice and a statutory limitation on the assertion of the right, namely that it had to be asserted within six years of its accrual.

Our next question is whether § 52-577 as applied to the plaintiff restricts or abolishes a right to redress that the plaintiff would have had in 1818. This issue is one of first impression because it is the first time an appellate court is required to assess the constitutionality of § 52-577 where there is no other statute granting an alternative to the enforcement of a right that existed in 1818. See McDonald v. Haynes Medical Laboratory, Inc., 192 Conn. 327, 335, 471 A.2d 646 (1984) (Speziale, J, concurring).

Actions for legal malpractice based on negligence are subject to § 52-577, the tort statute of limitations. Shuster v. Buckley, supra, 5 Conn. App. 477. Section 52-577 is a statute of repose “in that it sets a fixed limit after which the tortfeasor will not be held hable and in some cases will serve to bar an action before it accrues.” Zapata v. Burns, 207 Conn. 496, 508, 542 A.2d 700 (1988); see Prokolkin v. General Motors Corp., 170 Conn. 289, 294-97, 365 A.2d 1180 (1976). Here, the plaintiff claims that her common law right to bring a legal malpractice action in tort, as it existed in 1818, was unconstitutionally abolished by the enactment of § 52-577 because it prevents her from asserting a claim arising out of an injury she discovered after the time period in which to bring the claim had expired.

A number of cases have involved the issue of whether § 52-577 and other legislation is constitutional in light of article first, § 10, of the Connecticut constitution, but none involves the factual pattern of this case. See Sanzone v. Board of Police Commissioners, 219 Conn. 179, 592 A.2d 912 (1991); Stein v. Katz, 213 Conn. 282, 567 A.2d 1183 (1989); Dubay v. Irish, 207 Conn. 518, 542 A.2d 711 (1988); Zapata v. Burns, supra, 207 Conn. 496; Ecker v. West Hartford, supra, 205 Conn. 219; Daily v. New Britain Machine Co., 200 Conn. 562, 512 A.2d 893 (1986); Gentile v. Altermatt, 169 Conn. 267, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976); Conway v. Wilton, 39 Conn. App. 280, 664 A.2d 327 (1995). Some of these cases involved claims for which there was no cause of action in 1818 and, therefore, the statutory limitation was found constitutional. Stein v. Katz, supra, 287-88 (survival statutes); Dubay v. Irish, supra, 529-30 (suit against parent by child); Zapata v. Burns, supra, 516 (architect or engineer where there was no privity between alleged wrongdoer and plaintiff); Ecker v. West Hartford, supra, 234-35 (wrongful death).

Daily v. New Britain Machine Co., supra, 200 Conn. 562, and Gentile v. Altermatt, supra, 169 Conn. 267, are two cases that test the constitutionality of a statute of limitations, in view of article first, § 10, where the cause of action did exist in 1818. Daily involved an action for injuries sustained by the plaintiff as the result of an accident at work. The plaintiff claimed that the product liability statute of limitations was unconstitutional under article first, § 10, of the Connecticut constitution because it restricted the common law right to bring an action for a defective product. The court determined that even though this cause of action existed at the time the constitution was adopted, an alternative remedy, the workers’ compensation law, provided a reasonable alternative to the product liability claim. Daily v. New Britain Machine Co., supra, 585-86. Therefore, the product liability statute of limitations was constitutional. Id., 585. Gentile involved an action in negligence for injuries sustained in a car accident, claiming that the no-fault insurance legislation abolished common law rights that existed in 1818. The court concluded that the legislatively created remedy for injury from negligence sustained in an automobile accident was constitutional as a reasonable alternative to the common law cause of action for such negligence. Gentile v. Altermatt, supra, 292-94. Gentile did not involve § 52-577 but the principles discussed are relevant.

Sanzone v. Board of Police Commissioners, supra, 219 Conn. 179, is the most recent pronouncement on the constitutionality of a statute that was claimed to violate article first, § 10. Sanzone held that General Statutes § 52-557n (a) does not unconstitutionally deprive plaintiffs of a right to bring an action that had existed in 1818 at common law. The statute is a portion of the Tort Reform Act of 1986, barring tort claims against a municipality arising out of an accident allegedly caused by a defective highway. Id., 196-97. The trial court determined that the statute could constitutionally require General Statutes § 13a-149 to be the exclusive remedy for such claims. Id. The focus of the test of constitutionality conducted by the court rested on an evaluation of whether some form of legal recourse was retained for the cause of action even if the legislature limited the availability of a common law cause of action that existed in 1818. Id., 196-200.

Because there is still redress under § 13a-149 for actions against municipalities arising out of highway and bridge defects, the legislature could modify the exact common law remedy that existed in 1818, even though the legislation limits the right of redress. Section 13a-149 requires that the defect be the sole proximate cause of the injury, does not allow consequential damages, and requires a notice to the municipality within ninety days, all of which were conditions that did not exist in 1818. “It is true that some plaintiffs who are limited to their recourse under § 13a-149 may be deprived of a remedy. The plaintiff who fails within ninety days to provide the municipality with the statutorily required notice will be barred from any recovery.” Id., 198. A challenge to the constitutionality of § 13a-149 on the ground that its notice provision violated article first, § 10, of our constitution was rejected. See Shalley v. Danbury & Bethel Horse Railway Co., 64 Conn. 381, 387, 30 A. 135 (1894).

Reasonable conditions on a cause of action do not amount to a violation of the constitution. Id. A strict and inflexible interpretation of article first, § 10, could affect the legislature’s ability to pass, enact and repeal laws. “Such an encumbrance upon the legislature would freeze common law rights in perpetuity.” F. McGovern, “The Variety, Policy and Constitutionality of Product Liability Statutes of Repose,” 30 Am. U. L. Rev. 579, 616-17 (1981).

The common law right that the plaintiff claims was abridged by the passage of § 52-577 is the right to sue an attorney for legal malpractice in tort. Section 52-577 does not, on its face, restrict or abridge this cause of action, but, rather, only establishes the time period in which a plaintiff must assert this right. Therefore, § 52-577 restricts the right only to the extent that it restricts the time for bringing the action. By analogy, if the § 13a-149 bar of an action against a municipality for injuries arising out of highway defects if notice is not given within ninety days, an action that existed at common law; see Sanzone v. Board of Police Commissioners, supra, 219 Conn. 196-97 n.13; can survive an attack on its constitutionality, we conclude that § 52-577 can also survive such an attack.

“There are two principal reasons generally given for the enactment of a statute of repose: (1) it reflects a policy of law, as declared by the legislature, that after a given length of time a [defendant] should be sheltered from liability and furthers the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability . . . and (2) to avoid the difficulty in proof and record keeping which suits involving older [claims] impose.” (Citation omitted; internal quotation marks omitted.) Daily v. New Britain Machine Co., supra, 200 Conn. 582-83.

Statutes of repose are constitutional enactments that involve a balancing of the hardship caused by the potential bar of a just claim with the advantage of barring stale claims. Id., 583. Section 52-577 does not alter the common law cause of action of legal malpractice. It limits its availability but legal redress for the action still exists. Statutes of limitation are generally procedural. Baxter v. Sturm, Ruger & Co., 230 Conn. 335, 347, 644 A.2d 1297 (1994); Ecker v. West Hartford, supra, 205 Conn. 231-32. They function as a qualification of the remedy to enforce the right; Baxter v. Sturm, Ruger & Co., supra, 347; and limit the time in which to bring the action. Ecker v. West Hartford, supra, 231-32. They do not in themselves create or negate a cause of action, and simply act as a bar to a remedy otherwise available. Id. When a right exists at common law, a statute of repose “functions only as a qualification on the remedy to enforce the preexisting right.” Baxter v. Sturm, Ruger & Co., supra, 347.

The legislature has not tampered with the cause of action here that existed at common law in 1818. It has, however, amended the procedural aspect of enforcing the right by limiting the time within which the action could have been brought. The action, which had to have been brought within six years after the right of action accrued, now must be brought within three years from the date of the act or omission complained of. In limiting the time for bringing an action, even though it is possible that on the date of the expiration of the limitation period no injury has yet been sustained, the legislature has not acted unconstitutionally. See Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 174, 127 A.2d 814 (1956). The statute as applied to the plaintiff was not unconstitutional.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant claims in his brief that we should not entertain this appeal because the record is inadequate without those portions of the transcript referenced in the trial court’s postcard decisions concerning the motion for summary judgment and the motion to vacate and reargue. This issue is now moot, however, because the plaintiffs motion to amend the transcript was granted, and this court has the relevant portions of the transcript. Further, the trial court has replaced the postcard decisions with full memoranda of decision on the issues in this appeal.

       Section 52-581 relates to actions on oral contracts and § 52-576 relates to actions on implied contracts. The plaintiffs complaint is grounded solely in negligence and has no allegations relating to contract.

       In effect, the plaintiff abandoned her allegation of negligence in the drafting of the stipulation as alleged in paragraph fourteen of her complaint.

        Starkweather v. Patel, supra, 34 Conn. App. 395, is not applicable. In Starkweather, we reversed the trial court’s granting of a motion for summary judgment because there was a question of fact as to whether there was an ongoing physician-patient relationship between the plaintiff and the defendant. Id., 402. In other words, a question still existed as to whether the defendant had a duty to the plaintiff, arising out of a physician-patient relationship, that remained in existence after the commission of the original wrong. Here, the plaintiff does not claim a lawyer-client relationship, and specifically argues that there was none after 1985.

       General Statutes § 52-577 provides: “No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of.”

       The defendant argues that even if § 52-577 restricts or abolishes the plaintiffs cause of action, there is no constitutional deprivation because she had a reasonable alternative to the enforcement of her right, namely an action in contract. The plaintiff asserts that she has no action in contract and claimed none. An action in contract and one in tort are two conceptually distinct theories of recovery, both of which existed at common law. One is not a reasonable alternative of the other that was provided by the legislature.