text:
    BARBARA KUNST ET AL. v. GLENN E. VITALE ET AL.
    (14447)
    Landau, Schaller and Hennessy, Js.
    Argued April 25
    officially released August 13, 1996

      Robert J. Cooney, for the appellant (named defendant).

      Jonathan Perkins, with whom, on the brief, was Robert Luysterborghs, for the appellees (plaintiffs).
   LANDAU, J.

The defendant Glenn E. Vitale appeals from the judgment of the trial court, rendered after a jury trial, in favor of the plaintiff. The plaintiffs Barbara Kunst and Albert Kunst commenced this medical malpractice action following a surgical procedure to Barbara Kunst’s left foot performed by the defendant podiatrist. The jury awarded Barbara Kunst damages in the amount of $79,460, and Albert Kunst damages in the amount of $2500. The two issues we must consider on appeal are (1) whether the trial court properly submitted the case to the jury on a theory of simple negligence, and (2) whether there was sufficient expert testimony adduced at trial to establish the elements of medical malpractice.

The following facts and procedural history are relevant to the resolution of this appeal. On several occasions in 1989, the plaintiff discussed with the defendant the possibility of correcting a variety of problems with her left foot. In particular, the plaintiff had a bunion under her big toe that was causing her pain, her big toe was bent inward and she had hammertoe deformities on her fourth and fifth toes. The defendant suggested that all three problems could be rectified by various surgical procedures.

The defendant advised the plaintiff that the procedure that would be used to straighten the big toe would necessitate the cutting of bone and the placement of a metal screw which, depending on the healing process, would be removed within six months to one year. The defendant also informed the plaintiff that there were certain risks associated with the surgeries such as the inherent danger of using general anesthesia, the possibility of infection and the possibility of complications. The defendant also explained that there would be postoperative pain. After obtaining a second opinion from an orthopedic surgeon, who recommended the surgeries, and after discussing the matter with her husband, the plaintiff apprised the defendant that she wanted to proceed. The surgery was performed on October 19, 1989.

The plaintiffs postoperative care began the day after the surgeries when the plaintiff contacted the defendant and informed him that she was experiencing “excruciating” pain and that her big toe was pointing upward. On several follow-up visits over the next two months, the defendant took measures to relieve the plaintiffs discomfort and to dislodge scar tissue. In late December, 1989, however, dissatisfied with the care provided by the defendant, the plaintiff began treatment with a second podiatric surgeon, Steven Silverstein. On January 24,1990, Silverstein performed a second surgical procedure to remove the screw from the plaintiffs big toe.

On November 21, 1994, the trial court granted the defendant’s motion to preclude the plaintiffs expert witnesses from testifying as a result of the plaintiffs noncompliance with Practice Book § 220 (D). At the close of the plaintiffs case, and again after the defendant presented his case, the defendant orally moved for a directed verdict on the ground that the plaintiff failed to establish the elements of medical malpractice through expert testimony. The trial court reserved its decision on both motions.

At the close of all evidence, the trial court submitted the case to the jury on three theories of liability: medical malpractice, lack of informed consent and simple negligence. The juiy returned a verdict for the plaintiff. The defendant filed postverdict motions to set aside the verdict, in arrest of judgment, for judgment and for a new trial. In a memorandum of decision issued on January 19,1995, the trial court denied all motions, although it did reduce the award of economic damages from $10,000 to $4460. This appeal followed.

I

The parties do not dispute the fact that the complaint properly alleged medical malpractice and lack of informed consent. The defendant claims, however, that the trial court improperly submitted the case, which he argues sounds exclusively in professional negligence, to the jury on a theory of simple negligence. As a threshold matter, therefore, we must determine whether the trial court properly construed the complaint to allow the plaintiff to recover based on simple negligence before we consider whether the plaintiff established the elements of medical malpractice.

The plaintiff arrives at her contention that the trial court properly submitted the case to the jury on a theory of simple negligence in a rather circuitous manner. She first argues that, because paragraph ten (d) of the complaint alleged that the defendant “failed to perform a surgical procedure which he had told the plaintiff he would perform,” the complaint sufficiently alleged that she did not consent to the procedure that the defendant did employ. She next asserts that, although our law has traditionally recognized that such an allegation gives rise to an action based only on a theory of assault and battery, a cause of action not pursued in this case, the trial court properly relied on Caron v. Adams, 33 Conn. App. 673, 688, 638 A.2d 1073 (1994), for the proposition that a physician can also be held liable on a theory of simple negligence for the damage he causes when he performs a procedure for which there is no authorization. We disagree with the plaintiff.

“The interpretation of pleadings is always a question of law for the court. ... In addition, the allegations of the complaint must be given such reasonable construction as will give effect to [it] in conformity with the general theory which it was intended to follow, and do substantial justice between the parties.” (Citations omitted; internal quotation marks omitted.) Jacques All Trades Corp. v. Brown, 33 Conn. App. 294, 302, 635 A.2d 839 (1993). “ ‘It is axiomatic that the parties are bound by their pleadings.’ Calabro v. Calabro, 33 Conn. App. 842, 847, 639 A.2d 1046 (1994).” Geren v. Board of Education, 36 Conn. App. 282, 289, 650 A.2d 616 (1994), cert. denied, 232 Conn. 907, 653 A.2d 194 (1995).

Our review of the complaint reveals that all of the plaintiffs allegations are allegations of medical malpractice and lack of informed consent. Paragraph ten of count one, which comprises the plaintiffs allegations of professional negligence provides: “The medical care, evaluation, examination and diagnosis and treatment by Vitale were negligent and a violation of the standard of care of podiatric surgeons in the community.” (Emphasis added.) Subsections (a) through (g) specify the manner in which the defendant allegedly breached his professional standard of care. These subsections state that the defendant “(a) failed to inform the plaintiff of the reasonable risks and complications involved in her surgeries . . . (b) failed to properly install the proper size cortical screw . . . (c) failed to recognize the excessive length of the cortical screw . . . (d) failed to perform a surgical procedure which he had told the plaintiff he would perform . . . (e) performed unnecessary surgery . . . (f) additionally performed unnecessary surgery ...(g) failed to properly administer and supervise post-operative care and treatment to the plaintiff.” Thereafter, each of paragraphs eleven through seventeen, which allege several consequences of the surgery, begins with either the phrase “[a]s a result of the professional negligence of the defendant, Glenn C. Vitale” or “[a]s a further result of the professional negligence of the defendant, Glenn C. Vitale.” (Emphasis added.)

Nevertheless, in its memorandum of decision, the trial court opined that the case was properly submitted to the jury on a theory of simple negligence. The court indicated that, because the evidence adduced at trial was “in sharp conflict on the issue of whether the plaintiff consented to the procedure which the defendant performed,” it “perceived the applicable rule of law to be as annunciated in [Caron v. Adams, supra, 33 Conn. App. 673].” The court quoted the following sentence from Caron in its memorandum of decision: “Situations where battery may be proved may also be appropriate for allegations of negligence.” Id., 688. The trial court’s reliance on Caron is misplaced.

First, the decision in Caron did not involve professional negligence or lack of informed consent. Rather, it was an action sounding in general negligence to recover for personal injuries against a hospital for its failure to inform the plaintiffs guardian that the plaintiff required surgery to correct a medical condition. In Caron, the plaintiff, a ward of the department of children and youth services (DCYS) (now the department of children and families), sought damages against DCYS, its commissioner, and the Newington Children’s Hospital. The complaint alleged, inter alia, that the hospital failed to advise DCYS of the treatment required by the plaintiff. In holding that the trial court properly precluded the plaintiff from presenting expert witnesses due to his failure to comply with Practice Book § 220 (A), we concluded that the plaintiffs recovery was not barred by his inability to present expert witnesses because the plaintiffs claims sounded in general negligence. Id., 689.

Second, because the quoted language from Caron is found in a general discussion where we recognized that our law draws a distinction between a lack of informed consent and a failure to obtain any consent; Caron v. Adams, supra, 33 Conn. App. 688; it constitutes dictum rather than an applicable rule of law. Moreover, it appears that the trial court may have misunderstood the dictum in Caron. Although the Caron court acknowledged that “battery is a basis for recovery . . . where the physician fails to obtain consent,” it cites Shenefield v. Greenwich Hospital Assn., 10 Conn. App. 239, 248, 522 A.2d 829 (1987), for the proposition that “[situations where battery may be proved may also be appropriate for allegations of negligence.” Caron v. Adams, supra, 688. In Shenefield v. Greenwich Hospital Assn., supra, 248, however, we stated that when an allegation is made against a physician that he performed a procedure that was not consented to, “[t]o sustain a negligence action . . . the plaintiff must establish through expert testimony both the standard of care and the fact that the defendant’s conduct deviated from that standard.” (Emphasis added.) Thus, even where it is alleged that a medical professional performed a procedure for which consent was not procured, such an allegation does not give rise to a cause of action based on a theory of simple negligence.

On the basis of on our review of the plaintiffs complaint and the trial court’s reliance on Caron v. Adams, supra, 33 Conn. App. 688, we conclude that the trial court improperly submitted the case to the jury on a theory of simple negligence.

II

The defendant next claims that the trial court abused its discretion by failing to grant his motion to set aside the verdict. He argues that, because the plaintiff was precluded from presenting expert witnesses, which resulted in her failure to establish the elements of medical malpractice, and because the trial court improperly submitted the case to the jury on a theoiy of simple negligence, the jury could not reasonably and legally have reached its verdict. In contrast, the plaintiff argues that she was able to adduce sufficient evidence from the defendant’s experts, including the defendant himself, to establish the requisite elements. We disagree with the plaintiff.

“Our review of a trial court’s decision on a motion to set aside a verdict and to direct a verdict in favor of the movant is well established. In considering a motion to set aside the verdict, the court must determine whether the evidence, viewed in the light most favorable to the prevailing party, reasonably supports the jury’s verdict. ... In reviewing the action of the trial court in denying a motion to set aside the verdict, [i]t is the function of this court to determine whether the trial court abused its discretion. . . . The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached [its] conclusion. ... If, on the evidence, the jury could reasonably have decided as [it] did, [the reviewing court] will not find error in the trial court’s acceptance of the verdict. . . . However, it is the court’s duty to set aside the verdict when it finds that it does manifest injustice, and is . . . palpably against the evidence. . . .” (Citations omitted; internal quotation marks omitted.) Boyce v. Allstate Ins. Co., 236 Conn. 375, 381, 673 A.2d 77 (1996).

“In order to prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury. ... To prove that a [podiatrist] has breached the legally required standard of care, the plaintiff must offer some evidence that the conduct of the [podiatrist] was negligent. . . . [Testimony of an expert witness is necessary to establish both the standard of proper professional skill or care on the part of a [podiatrist] . . . and that the defendant failed to conform to that standard of care.” (Citations omitted; internal quotation marks omitted.) Keans v. Bocciarelli, 35 Conn. App. 239, 241-42, 645 A.2d 1029, cert. denied, 231 Conn. 934, 650 A.2d 172 (1994).

Even if we assume, arguendo, that the plaintiff is correct in her assertion that she was able to adduce enough testimony from the defendant and the defendant’s experts regarding the requisite standard of care concerning malpractice and lack of informed consent, our careful review of the record reveals that none of those witnesses testified that the defendant deviated from that standard of care in his care and treatment of the plaintiff. Likewise, there is no expert testimony that the plaintiffs alleged damages were causally related to the surgeries performed by the defendant. Consequently, the plaintiff did not sustain her burden of proof against the defendant regarding her claims of malpractice and lack of informed consent.

Because this case should not have been submitted to the jury on a theory of simple negligence, and because the plaintiff failed to adduce any expert testimony to establish the requisite elements of medical malpractice, the jury could not reasonably have decided as it did. We conclude, therefore, that the trial court abused its discretion in denying the defendant’s motion to set aside the verdict. See Gemme v. Goldberg, 31 Conn. App. 527, 533, 626 A.2d 318 (1993).

The judgment is reversed and the case is remanded with direction to render judgment for the defendant.

In this opinion the other judges concurred.

       The defendants named in this action were Glenn E. Vitale, a podiatrist, and Podiatry Associates, P.C. The action was withdrawn as to Podiatry Associates on December 13, 1994. For purposes of this opinion, therefore, the word defendant refers only to Vitale.

       The plaintiffs are Barbara. Kunst and her husband, Albert Kunst. Count two of the complaint asserts that, as a result of the defendant’s negligence in treating Barbara Kunst, Albert Kunst suffered a loss of consortium. Because Albert Kunst’s claim is derivative, our use of the word plaintiff in the singular refers only to Barbara Kunst.

       The plaintiffs action is primarily premised on the surgical procedure related to straightening the plaintiffs big toe. In her complaint, the plaintiff alleged, inter alia, that the defendant’s care and treatment were negligent and that the defendant performed a different procedure than that to which she consented.

       The plaintiff argues that the verdict in this case must stand under the general verdict rule because neither side requested interrogatories. “The general verdict rule operates to prevent an appellate court from disturbing a verdict that may have been reached under a cloud of error, but is nonetheless valid because the jury may have taken an untainted route in reaching its verdict.” Sady v. Liberty Mutual Ins. Co., 29 Conn. App. 533, 558, 616 A.2d 819 (1992). Here, the plaintiffs allegations did not support a claim of simple negligence. As discussed in part II, the lack of expert testimony is fatal to the remaining allegations, and, therefore, the jury could not have reached its verdict by any untainted route. Thus, the general verdict rule does not apply.

       Moreover, at oral argument the plaintiff conceded that there was no expert testimony in the record adduced from either the defendant himself or from the defendant’s expert witnesses tending to prove that the defendant violated the standard of care for podiatric surgeons in the community.


source: Caselaw Access Project

author: HENNESSY, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. TRAMLUS COLVIN
    (14186)
    Dupont, C. X, and Spear and Hennessy, Js.

      Argued February 26
    officially released August 13, 1996

      Robert J. Scheinblum, deputy assistant state’s attorney, with whom, on the brief, were James E. Thomas, state’s attorney, and Carl E. Taylor, assistant state’s attorney, for the appellant (state).

      Jefferson D. Jelly, with whom was Terence P. Sexton, for the appellee (defendant).
   HENNESSY, J.

The defendant, Tramlus Colvin, was arrested and charged with possession of narcotics with intent to sell in violation of General Statutes § 21a-278 (b) and possession of narcotics with intent to sell within 1500 feet of a housing project in violation of General Statutes § 21a-278a (b). The defendant filed a motion to suppress evidence of drugs that the police seized from his automobile. The trial court, Spada, J., after a hearing, granted the motion to suppress on November 2, 1994. The charges were dismissed on November 15, 1994. Also, on November 15, 1994, the court, Miaño, J., granted the state’s motion for permission to appeal from the judgment of dismissal. On appeal, the state claims that the trial court improperly granted the motion to suppress because the evidence was lawfully discovered in plain view in the defendant’s automobile. We affirm the trial court’s ruling and the trial court’s judgment of dismissal.

The trial court found the following facts. On September 16, 1992, several officers who were in the area conducting an investigation observed the defendant drive to 235 Sergeant Street and park his car. They then watched the defendant walk to 91 Atwood Street, 200 feet away from his car, and sit on a stoop. The officers observed the defendant for twenty-five minutes. During their surveillance, the officers did not witness a sale of narcotics or any act giving the appearance of a sale. At the close of their surveillance, Detectives Keith Knight and Henry Martin approached the defendant. The defendant knew them as police officers, saw their sidearms and badges, and addressed one of the officers by his first name. One of the detectives ordered the defendant to accompany them to his automobile. The defendant reluctantly complied and walked with the officers to the vehicle. While standing on the sidewalk next to the defendant’s automobile, Martin looked through the window of the vehicle and observed in plain view a bag containing a white substance later determined to be a narcotic substance. The officers seized the bag and charged the defendant with possession of narcotics.

On October 3,1993, the defendant moved to suppress the evidence seized from his automobile as “fruits of an illegal search and seizure.” The trial court granted the motion finding that the evidence seized was the result of an illegal “de facto” arrest. The trial court found that the defendant was under a de facto arrest because the officers ordered him to accompany them to his car and the defendant was not free to leave. It further noted that the officers did not see evidence of drugs or drug paraphernalia near the defendant. The court found that because the police had neither probable cause nor a reasonable articulable suspicion that the defendant was engaged in illegal activity, the de facto arrest was illegal.

The sole issue on appeal is whether the trial court improperly granted the motion to suppress the evidence. The state does not claim that the trial court improperly found that the defendant was illegally de facto arrested. Rather, the state claims that even if the de facto arrest was illegal, the detective’s observation of the evidence in the defendant’s automobile was unconnected to that arrest. The state, therefore, argues that the trial court improperly applied the “fruit of the poisonous tree” doctrine.

The “fruit of poisonous tree” doctrine “requires courts to exclude evidence that is the product or ‘fruit’ of police conduct in violation of the fourth amendment.” State v. Ostroski, 201 Conn. 534, 545, 518 A.2d 915 (1986); Segura v. United States, 468 U.S. 796, 804-805, 104 S. Ct. 3380, 82 L. Ed. 2d 599 (1984); Wong Sun v. United States, 371 U.S. 471, 484-88, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). The essential purpose of the doctrine “is to deter police misconduct.” Nix v. Williams, 467 U.S. 431, 446, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). Evidence that would not have been discovered but for the illegal actions of the police is not necessarily the fruit of the poisonous tree. Wong Sun v. United States, supra, 487-88.

The question to be resolved concerning the admissibility of derivative evidence is “ ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of [the initial] illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” Wong Sun v. United States, supra, 371 U.S. 488, quoting J. Maguire, Evidence of Guilt (1959), p.221. In deciding whether the evidence should be suppressed, the courts “have focused upon the attenuation aspect; at what point does the nexus between the fourth amendment violation and the challenged evidence . . . become so attenuated as to dissipate the taint of the primary illegality.” State v. Ostroski, supra, 201 Conn. 546.

In Brown v. Illinois, 422 U.S. 590, 603-604, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975), the United States Supreme Court explained that the factors to be considered in determining whether evidence is sufficiently attenuated from the initial police illegality include the temporal proximity of the illegal police action and the discovery of the evidence, “the presence of intervening circumstances,” and “the purpose and flagrancy of the official misconduct.” See also State v. Cates, 202 Conn. 615, 621-24, 522 A.2d 788 (1987); State v. Ostroski, supra, 201 Conn. 547.

We find that application of these factors to the present case supports the conclusion that the discovery of the evidence in the defendant’s vehicle was not sufficiently attenuated from the illegal arrest to be purged of the taint. First, the discovery of the evidence occurred shortly after the defendant’s arrest. Second, there were no intervening circumstances between the arrest and the discovery of the contraband. Moreover, as in State v. Geisler, 222 Conn. 672, 684, 610 A.2d 1225 (1992), a continuum of police action existed in that, from the time the police ordered the defendant to go to his car until the discovery of the evidence, the officers did not allow the defendant to leave. Finally, by effectuating an illegal arrest, the police officers engaged in misconduct similar to that in Brown v. Illinois, supra, 422 U.S. 605. As in Brown, this illegal arrest had a quality of purposefulness: “The impropriety of the arrest was obvious .... The arrest, both in design and in execution, was investigatory.” Id.

Furthermore, we are unpersuaded by the state’s argument that the evidence is admissible because the police could have legally viewed and seized it independent of the illegal arrest. Regardless of whether the police could have legally obtained the evidence, its discovery was not sufficiently attenuated from the misconduct. In addition, admission of this evidence would undermine the purpose of the exclusionary rule, deterring police misconduct. We conclude that the challenged evidence in this case was the tainted product of an illegal arrest and that the trial court properly granted the motion to suppress.

We conclude that the trial court’s granting of the defendant’s motion to suppress and the subsequent judgment of dismissal were proper.

The judgment is affirmed.

In this opinion the other judges concurred.

       We need not address the defendant’s arguments based on state constitutional grounds because we affirm the trial court’s ruling.


author: DUPONT, C. J.

text:
    DORIS BEACH v. REGIONAL SCHOOL DISTRICT NUMBER 13 ET AL.
    (14731)
    Dupont, C. J., and Laveiy and Hennessy, Js.

      Argued May 29
    officially released August 13, 1996

      Robert P. Dutcher, for the appellant (plaintiff).

      ArthurR. Riccio, Jr., for the appellees (defendants).
   DUPONT, C. J.

The plaintiff appeals from the judgment rendered in favor of the defendants following the denial by the trial court of the plaintiffs motion to set aside a jury verdict for the defendants Leo Baker, regional school district number 13 and its board of education and to order a new trial. The juiy’s verdict was for the individual defendant Baker because he was “not hable due to governmental immunity,” and this appeal concerns only Baker.

The plaintiff brought an action against the defendants after she feh on a sidewalk of a municipal high school. The defendants’ special defenses were contributory negligence, governmental immunity, and that the plaintiffs action was barred by the Workers’ Compensation Act, General Statutes § 31-275 et seq. The plaintiff claims that (1) the trial court improperly determined that no unity of interest, as defined in General Statutes § 51-241, existed among the individual defendants and, (2) there was insufficient evidence for the jury to conclude that the special defense of governmental immunity barred the plaintiffs recovery. We affirm the judgment of the trial court.

The jury reasonably could have found the facts that follow. The plaintiff, a food service worker in the cafeteria at Coginchaug High School in Durham, while on her way to work on January 10, 1991, at 6:30 a.m., slipped and fell on the icy sidewalk between the north parking lot and the main entrance of the school. The plaintiff suffered physical injuries from the fall.

Although most of the cafeteria workers and the janitorial staff park on the south side of the school in order to approach the south cafeteria entrance, the plaintiff chose to park on the north side because her car had been vandalized while parked in the south lot. Because cafeteria workers and the janitorial staff are among the first to arrive in the morning, Donald Harris, acting head custodian, worked on clearing the sidewalks leading to the south entrance to the school before clearing the sidewalks leading to the north entrance. On the morning of the plaintiffs fall, the superintendent of schools, Howard Kelley, had called for a two hour delay in the opening of school. The plaintiff had not learned of the delay and, as a consequence, arrived at the school at her usual time, before Harris had cleared the walk on which she fell. Kelley supervises the defendant, who is the supervisor of buildings and grounds; the defendant supervises Harris.

Prior to trial, the plaintiff filed a motion in limine requesting the trial court to find that the individual defendants, Kelley, Baker, and Harris, had a unity of interest and that the court should consider them a single party for the purpose of making peremptory challenges pursuant to General Statutes § 51-241. The trial court denied this motion, stating that sufficient adversity existed among the defendants to treat them as separate parties and allowed the defendants a total of ten peremptory challenges to the plaintiffs four.

I

A

As a preliminary matter, we must determine whether the trial court properly considered the number of allowable peremptory challenges under the current version of § 51-241, amended in 1993, or whether it should have applied the statute as it existed at the time of the plaintiffs accident in 1991. General Statutes § 55-3 provides that “[n]o provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have a retrospective effect.” “ ‘The “obligations” referred to in the statute are those of substantive law’; Nagle v. Wood, 178 Conn. 180, 186, 423 A.2d 875 (1979); and ‘[legislation which limits or increases statutory liability has generally been held to be substantive in nature.’ Little v. Ives, 158 Conn. 452, 457, 262 A.2d 174 (1969). ‘[W]e have uniformly interpreted § 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only.’ Darak v. Darak, 210 Conn. 462, 467, 556 A.2d 145 (1989); Westport v. State, 204 Conn. 212, 219, 527 A.2d 1177 (1987). ‘The legislature only rebuts this presumption when it “clearly and unequivocally” expresses its intent that the legislation shall apply retrospectively.’ Darak v. Darak, supra, 468; see also State v. Lizotte, 200 Conn. 734, 741, 517 A.2d 610 (1986).” Gormley v. State Employees Retirement Commission, 216 Conn. 523, 529, 582 A.2d 764 (1990). This “rule is not applied, however, to legislation which is general in its terms and affects only matters of procedure”; Schurgast v. Schumann, 156 Conn. 471, 487, 242 A.2d 695 (1968); “and does not impose new obligations or affect the substantive rights of the parties.” Toletti v. Bidizcki, 118 Conn. 531, 536, 173 A. 223 (1934).

Because an examination of § 51-241 and the legislative history of Public Acts 1993, No. 93-176 (P.A. 93-176) is not dispositive of the legislative intent regarding whether the statute should be applied prospectively or retrospectively, we must turn to an analysis of the procedural versus the substantive nature of the statute.

We construe the amendment to § 51-241 to be procedural rather than substantive in nature. The amendment to the statute does not affect parties’ rights relative to peremptory challenges. Peremptory challenges are guaranteed by the constitution of Connecticut, article first, § 19, as amended by amendment IV, but their precise number is established by statute. The statute does not change the number of allowable challenges each party has but allows the court to determine whether the parties share a “unity of interest,” and if so, gives the court discretion to treat such parties as one. The statute also defines a unity of interest as being an interest that is substantially similar.

The amendment does not change the substantive rights of the parties. Even before § 51-241 was enacted in 1949, and when that statute consisted of only one sentence (until 1993), the number of peremptory challenges given to each party was discussed in terms of whether the parties had separate and distinct causes of action or had a similarity of position. See Krause v. Almor Homes, Inc., 147 Conn. 333, 335-36, 160 A.2d 753 (1960); Reid v. New Haven, 133 Conn. 446, 448-49, 52 A.2d 140 (1947). The amendment did not affect a substantive right, and, therefore, we conclude that the present form of the statute governs this case.

B

The plaintiff claims that the trial court abused its discretion when it denied the plaintiffs motion in limine that sought a finding of a unity of interest among the individual defendants. To demonstrate the defendants’ unity of interest, the plaintiff cites the following: “(1) Identical allegations of negligence were asserted against the defendants in a one-count complaint; (2) The defendants had the same counsel before and at trial; (3) They filed the same answer to the complaint; (4) They asserted the same special defenses; (5) They were insured by the same insurance carrier under the same policy; (6) The institutional defendants agreed to indemnify the individual defendants from any adverse verdict; and (7) The individual defendants conceded that they had no conflict with each other.”

We are aware of only one case in which, as dicta, it was stated that each party in an action was entitled to a set of peremptory challenges, without any discussion as to the relationship between the particular parties. Mourison v. Hansen, 128 Conn. 62, 67, 20 A.2d 84 (1941). The Mourison court noted, however, that generally, the number of peremptory challenges allowed in other jurisdictions depended on whether the interests of the parties were diverse or antagonistic. Id. Prior to the 1993 amendment to § 51-241, cases discussed whether a set of peremptory challenges should be allowed to particular parties in terms of whether they had a substantial interest in the case, had filed separate pleadings, could have brought separate actions, had an antagonistic position vis-a-vis other parties, would participate in the trial, and if they could recover or be exonerated from paying a similar amount as other parties. Krause v. Almor Homes, Inc., supra, 147 Conn. 335-36; Reid v. New Haven, supra, 133 Conn. 448-49; Mourison v. Hansen, supra, 67; Commercial Union Insurance Co. v. Frank Perrotti & Sons, Inc., 20 Conn. App. 253, 261-62, 566 A.2d 431 (1989).

This is a case of first impression because an interpretation of the phrase “unity of interest” in § 51-241 has not yet been determined by a Connecticut appellate tribunal. The legislative history of P.A. 93-176 demonstrates that the decision of whether parties share a “unity of interest” lies in the trial court’s discretion. See 36 H.R. Proc., Pt. 16, 1993 Sess., p. 5562, remarks of Rep. Dale E. Radcliffe and Rep. Alex Knopp.

Section 51-241 provides that “ ‘unity of interest’ means that the interests of the several plaintiffs or of the several defendants are substantially similar.” One commentator notes that the “substantial similarity test is not borrowed from any other jurisdiction and is necessarily difficult to define.” J. Steigelfest, “The Unity of Interest Rule and Peremptory Challenges in Connecticut,” 69 Conn. B.J. 353, 356 (1995). The legislative history of P.A. 93-176 provides the following examples of circumstances in which the parties may demonstrate substantially similar interests: “the interest of an agent and princip[al], when agency is not denied”; 36 H.R. Proc., supra, p. 5558; “[t]he interest of car driver and car owner when permission to use the car is not in dispute”; id., p. 5558; where multiple plaintiffs were passengers injured in the same motor vehicle accident; id., p. 5559; in an instance of respondeat superior where the employer is hable for the employee’s negligent activities. Id., p. 5560. The legislative history, in addition, contains a discussion of whether there is a unity of interest among defendants in a medical malpractice action, which indicates that where there are separate issues of liability for the hospital and the medical professionals involved, there is no unity of interest. Id., pp. 5561-62.

The fact that the plaintiffs complaint states the same counts of negligence against each defendant is not dis-positive. In her complaint, the plaintiff alleges that the three defendants were negligent in failing to remedy the icy condition, to warn of that condition, and to place barricades around the icy sidewalk. The duty of each individual defendant toward remedying this alleged condition is distinct. The jury might determine that the parties in supervisory positions failed to delegate the duty to clear the sidewalks properly or to implement a proper policy. The jury might determine that the person assigned to clear the sidewalks was negligent. The jury might determine that each party was negligent, but each in a separate and distinct manner, or that one individual defendant’s role was ministerial, whereas another defendant’s role was discretionary. The liability of each, therefore, could differ.

The plaintiff claims that the fact that the defendants shared an attorney, filed the same answer to the complaint, and asserted the same special defenses creates a unity of interest among them. The plaintiff asserts that in order for one attorney to represent all three defendants, the defendants must share a unity of interest or the attorney is violating rule 1.7, of the Rules of Professional Conduct entitled “Conflict of Interest: General Rule.” The plaintiff, however, has no standing to argue that the defendants’ counsel violated rule 1.7, and, furthermore, the fact that parties may not have a unity of interest does not necessarily constitute a violation of the rule.

The special defenses each defendant filed are not dispositive of whether a unity of interest exists among the defendants. One defense, comparative negligence, relates solely to the plaintiffs conduct; another, governmental immunity, is a defense each defendant shares in a different capacity as a governmental employee; the third special defense, that the Workers’ Compensation Act bars recovery, relates to the plaintiffs status as an employee, and not to the status of each defendant. Nor is the filing of a single answer by all three defendants dispositive of a substantial similarity of interest where the complaint recognized the different role of each defendant in the alleged negligence.

During argument on the motion in limine, counsel for the defendant did assert that the defendants’ conflict was not with each other, but he went on to state, however, that “[t]he conflict arises in terms of what their different interest[s are] or in defending themselves against the claims of the plaintiff. . . . [S]ome may just claim a lack of negligence and compare to negligence on the part of the plaintiff. . . .”

In sum, the trial court had sufficient evidence to hold that the individual defendants shared no unity of interest with each other. Consequently, the trial court did not abuse its discretion by ruling that each individual defendant should have three peremptory challenges.

II

The plaintiff next claims that the trial court improperly accepted the jury’s verdict in favor of the defendant on the ground that the defendant was govemmentally immune from liability. Specifically, the plaintiff claims that the jury had insufficient evidence to find that the duties of the defendant were discretionary because the duties were ministerial acts for which no governmental immunity exists.

“A trial court’s discretion is limited when setting aside a jury verdict. Paramount is the basic principle that it must not usurp the factfinding function of the jury. It is well established law that, where a jury trial is elected, [l]itigants have a constitutional right to have issues of fact decided by the jury .... Further, [t]he conclusion of a jury on issues of fact, if it is one at which honest [persons] acting fairly and intelligently could arrive reasonably, must stand .... The trial judge is, therefore, limited to determining whether there is any evidence to support the verdict. ...” (Citations omitted; internal quotation marks omitted.) Lemonious v. Burns, 23 Conn. App. 735, 738-39, 583 A.2d 1328, cert denied, 218 Conn. 903, 588 A.2d 1078 (1991). Appellate courts should give great weight to the trial court’s refusal to set aside the verdict and indulge reasonable presumptions in favor of the trial court’s correctness. Herb v. Kerr, 190 Conn. 136, 139, 459 A.2d 521 (1983).

“The doctrines that determine the tort liability of municipal employees are well established. Although municipalities are generally immune from liability in tort, municipal employees historically were personally liable for their own tortious conduct. Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989); Gordon v. Bridgeport Housing Authority, 208 Conn. 161, 165, 544 A.2d 1185 (1988).” Burns v. Board of Education, 228 Conn. 640, 645, 638 A.2d 1 (1994). “ ‘[A] municipal employee . . . has a qualified immunity in the performance of a governmental duty, but he may be liable if he misperforms a ministerial act, as opposed to a discretionary act. . . . The word “ministerial” “refers to a duty which is to be performed in a prescribed manner without the exercise of judgment or discretion.” . . .’ ” (Citation omitted.) Evon v. Andrews, supra, 505.

The determination of whether official acts or omissions are ministerial or discretionary is a question of fact for the fact finder. Gordon v. Bridgeport Housing Authority, supra, 208 Conn. 165. It is the plaintiffs contention that the record clearly shows that Baker had established an “automatic and mandatory” procedure that if freezing rain or precipitation fell before a school day, Baker would call in the head custodian for Coginchaug High School two hours early in order to salt and sand icy sidewalks. The plaintiff further claims that it is undisputed that Baker did not follow this procedure and, thereby, was negligent in not following a ministerial procedure.

The plaintiff relies on the case of Kolaniak v. Board of Education, 28 Conn. App. 277, 610 A.2d 193 (1992), as precedent that the duty to clear ice and snow is ministerial rather than discretionary. In Kolaniak, an adult education student slipped and fell on an icy patch on a walkway of a high school classroom building. The board of education, before winter began, had issued a bulletin to all custodians and maintenance personnel in the city indicating a policy of inspecting and keeping the walkways clear on a daily basis. The maintenance workers in Kolaniak could not recall putting down salt or sand on the date of the plaintiffs injury and thereby violated the directive. We held that the trial court had not improperly refused to charge on the doctrine of governmental immunity because the bulletin made the function ministerial. Kolaniak v. Board of Education, supra, 280-81.

The present case may be distinguished from Kolaniak because no similar directive existed that would have created a policy for removing snow or putting salt or sand on icy patches. The plaintiff relies on the defendant’s testimony indicating that he called in extra personnel during the night in the event of freezing rain or snow. The jury could have reasonably believed that the defendant as a course of custom would call for additional help, but that it was not a mandatory procedure. The totality of the evidence demonstrates that the defendant had considerable discretion as to whether any additional maintenance workers would be called, who would be called, and when such calls would be made. The trial court in its memorandum of decision reviewed the evidence that denied the plaintiffs motion to set aside the verdict and cited evidence that supported the jury’s verdict for the defendant. The court noted that there was evidence that he was in charge of overseeing five buildings in three locations, that he supervised custodians and established policies and procedures for snow removal and sanding, that he was responsible for staffing and determining overtime, that the board of education did not prescribe the manner in which he carried out his duties, and that he alone prescribed the general policy as to when the custodians should begin the work of snow removal and sanding. We agree with the trial court in its refusal to set aside the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       The plaintiffs complaint alleges negligence against Leo Baker, the supervisor of buildings and grounds for regional school district number 13; Donald Harris, the acting head custodian at Coginchaug High School; Howard J. Kelley, the superintendent of schools; regional school district number 13; its board of education; and the towns of Durham and Middlefield. The plaintiffs employer, Navin Brothers Food Service, Inc. (Navin), filed an intervening complaint against all defendants but did not participate in the trial. Both the plaintiff and Navin subsequently amended their complaints to exclude the towns of Durham and Middlefield. The amended complaint further claims indemnification by regional school district number 13 and its board of education pursuant to General Statutes § 10-235. The jury returned identical verdicts for the three individual defendants, but the plaintiffs motion to set aside the verdict related to only one of the three, the defendant Leo Baker, and regional school district number 13 and its board of education.

       As used in this opinion, the word defendant refers to Leo Baker.

       General Statutes § 51-241 provides: “On the trial of any civil action to a jury, each party may challenge peremptorily three jurors. Where the court determines a unity of interest exists, several plaintiffs or several defendants may be considered as a single party lor the purpose of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly. For the purposes of this section, a ‘unity of interest,’ means that the interests of the several plaintiffs or of the several defendants are substantially similar.”

       This appeal concerns the individual defendant, Baker only. Whether the other defendants should have had peremptory challenges, therefore, ordinarily would not recur in the event a new trial were necessary, because only the defendant Baker, regional school district number 13 and its board of education would be involved. No claim as to the unity of interest of the governmental defendants, for the purpose of peremptory challenges, has been made. We, nevertheless, resolve the issue. See Mourison v. Hansen, 128 Conn. 62, 67, 20 A.2d 84 (1941). We also review the claim because the plaintiff argues that she suffered the effect of an excessive number of peremptory challenges, causing an unfair trial.

       The court determined that the school district and school board had a sufficient unity of interest with the defendants that their interests would be sufficiently covered by the peremptory challenges exercised by the individual defendants. The plaintiffs four peremptory challenges consisted of the three allowed by § 51-241 and the one allowed by General Statutes § 51-243 (a), which provides for additional peremptory challenges where alternate jurors are to be chosen. The defendants each received three challenges under § 51-241. One additional challenge to share among the defendants was allowed pursuant to § 51-243 (a), which provides in relevant part that “[i]n any case when the court directs the selection of alternate jurors, each party may peremptorily challenge four jurors. Where the court determines a unity of interest exists, several plaintiffs or several defendants may be considered as a single party for the purpose of making challenges, or the court may allow additional peremptory challenges and permit them to be exercised separately or jointly. . . .”

       At the time of the plaintiffs accident, General Statutes (Rev. to 1991) § 51-241 provided: “On the trial of any civil action to a jury, each party may challenge peremptorily three jurors.” This language was amended in 1993 by Public Acts 1993, No. 93-176, by the addition of two sentences. See footnote 3.

       The defendants, in their appeal brief, challenge the constitutionality of the amendment to § 51-241. This claim is not reviewable for two reasons. First, the defendants never raised the issue of the constitutionality of § 51-241 at trial, and an issue that was not raised at trial, including a constitutional challenge to a statute, cannot, in general, be raised on appeal. State v. Murray, 28 Conn. App. 548, 552, 611 A.2d 916 (1992), appeal dismissed, 225 Conn. 524, 624 A.2d 377 (1993) (certification improvidently granted). Second, “a parly cannot seek the relief provided in an ordinance or statute and later in the same proceeding raise the question of its constitutionality . . . .” (Citations omitted; internal quotation marks omitted.) Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 567, 409 A.2d 1020 (1979). Here, where the defendants benefit from § 51-241, they may not challenge its constitutionality.

       In her brief, the plaintiff set forth further evidence that arose during the trial in support of her argument that the defendants shared a unity of interest. Because this evidence was not before the trial court during the motion in limine, we will not consider it in our decision.


text:
    STATE OF CONNECTICUT v. ALEXANDRO ROMERO
    (15437)
    Landau, Heiman and Hennessy, Js.
    Argued April 29
    officially released August 13, 1996

      Lauren Weisfeld, assistant public defender, filed a brief for the appellant (defendant).

      Rita M. Shair, assistant state’s attorney, with whom, on the brief, were Michael Dearington, state’s attorney, and Gary Nicholson, assistant state’s attorney, for the appellee (state).
   HENNESSY, J.

The defendant, Alexandra Romero, appeals from the judgment of conviction, after a jury trial, of murder as an accessory in violation of General Statutes §§ 53a-54a and § 53a-8 and conspiracy to commit murder in violation of General Statutes §§ 53a-54a and 53a-48a (a). The defendant claims that the evidence was insufficient to sustain the convictions for murder as an accessory and for conspiracy to commit murder and that the trial court improperly instructed the jury on reasonable doubt.

The jury heard the following evidence. The victim, Elvis Cmkovic, a gang member, died as a result of gunshot wounds inflicted by a member of a rival New Haven gang called the Liberty Street gang. On May 8, 1991, the defendant, a member of the Liberty Street gang, announced that he had a gun, that he was going to Davenport Avenue to “shoot” and asked who wanted to go with him. Heriberto Lopez got in the defendant’s car and the defendant drove away. The victim and his brother were playing basketball on the comer of Winthrop and Davenport Avenues when the defendant drove slowly past them. Lopez drew a gun and fired several shots at the brothers from the passenger side of the defendant’s car, resulting in the death of Elvis Crnkovic.* ** The defendant and Lopez were later seen throwing discharged shells into a dumpster. Subsequently, the defendant gave a friend a gun and told her to get rid of it because it was “hot.”

The defendant admitted driving the car from which the shots were fired. He testified, however, that his passenger, David Morales, had fired the shots and that he had not been aware that Morales would do so.

I

The defendant argues that, in order to be convicted of the charge of murder as an accessory and of conspiracy to commit murder, the state must prove beyond a reasonable doubt that he had the specific intent to commit murder. The defendant claims that the jury could not have reasonably drawn an appropriate inference of guilt from the evidence presented.

“ ‘The standard of review of an insufficiency claim is clear. “We first review the evidence presented at trial, construing it in the light most favorable to sustaining the facts expressly found by the trial court or impliedly found by the jury. We then decide whether, upon the facts thus established and the inferences reasonably drawn therefrom, the trial court or the jury could reasonably have concluded that the cumulative effect of the evidence established the defendant’s guilt beyond a reasonable doubt.” State v. Jarrett, 218 Conn. 766, 770-71, 591 A.2d 1225 (1991); State v. Weinberg, 215 Conn. 231, 253, 575 A.2d 1003, cert. denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413 (1990); State v. Rollinson, 203 Conn. 641, 665-66, 526 A.2d 1283 (1987); State v. Garrison, 203 Conn. 466, 471, 525 A.2d 498 (1987).’ State v. Lewis, 220 Conn. 602, 606, 600 A.2d 1330 (1991). While the jury must find every element proven beyond a reasonable doubt in order to find the defendant guilty of the charged offense, each of the basic and inferred facts underlying those conclusions need not be proved beyond a reasonable doubt. State v. Castonguay, 218 Conn. 486, 507, 590 A.2d 901 (1991). If it is reasonable and logical for the jury to conclude that a basic fact or an inferred fact is true, the jury is permitted to consider the fact proven and may consider it in combination with other proven facts in determining whether the cumulative effect of all the evidence proves the defendant guilty of all the elements of the crime charged beyond a reasonable doubt. State v. Grant, 219 Conn. 596, 604-605, 594 A.2d 459 (1991).” State v. Pinnock, 220 Conn. 765, 770-71, 601 A.2d 521 (1992).

“To establish the crime of conspiracy under § 53a-48 of the General Statutes, it must be shown that an agreement was made between two or more persons to engage in conduct constituting a crime and that the agreement was followed by an overt act in furtherance of the conspiracy by any one of the conspirators. . . . State v. Beccia, 199 Conn. 1, 3, 505 A.2d 683 (1986). To prove the offense of conspiracy to commit murder, the state must prove two distinct elements of intent: that the conspirators intended to agree; and that they intended to cause the death of another person. Id., 4.” (Internal quotation marks omitted.) State v. Pinnock, supra, 220 Conn. 771. In order to find the defendant guilty, the jury had to find (1) that the defendant and Lopez intentionally agreed to cause the death of another person, (2) that, at the time of the agreement, the defendant intended that a death be caused, and (3) that the defendant or Lopez committed an overt act in furtherance of the conspiracy by shooting and killing Cmkovic. See id., 771-72. “While the state must prove an agreement, the existence of a formal agreement between the conspirators need not be proved because [i]t is only in rare instances that conspiracy may be established by proof of an express agreement to unite to accomplish an unlawful purpose. . . . State v. Ghere, 201 Conn. 289, 299, 513 A.2d 1226 (1986). (Internal quotation marks omitted.) State v. Lewis, [220 Conn. 602, 607, 600 A.2d 1330 (1991)].” State v. Pinnock, supra, 772.

The jury heard sufficient evidence for it to conclude that the state proved beyond a reasonable doubt that the defendant and Lopez conspired to kill a member of a rival gang. The jury heard testimony that a member of the rival gang had smashed the windshield of a car belonging to a member of the Liberty Street gang and that two members of the Liberty Street gang were fired upon by members of the rival gang. The juiy also heard evidence that the victim’s home had been shot at by the Liberty Street gang. The jury then heard testimony that the defendant drove his car to where Liberty Street gang members were present and announced to them that he had a gun and was about to go to Davenport Avenue to “shoot.” The state also presented evidence that the defendant asked who wanted to go with him, that Lopez got into the passenger side of the car and that he and the defendant drove away. On the basis of that evidence, the jury could reasonably have found that the defendant and Lopez intended to drive to a place where members of the rival gang would be and to shoot one or more of them. The jury heard the following evidence regarding the shooting. The defendant, with Lopez as his passenger, drove his car slowly past the place where the Cmkovic brothers were playing basketball. Other members of the Liberty Street gang were close by in another car. Both cars stopped in front of the brothers and a passenger in each car fired multiple shots at them. After the other car left the scene, the defendant’s car remained while Lopez continued firing. The jury could reasonably believe that the intention of the defendant and Lopez was to kill the Crnkovic brothers. Finally, the state presented evidence that Elvis Crnkovic died as a result of gunshot wounds.

The defendant also contends that to find him guilty as an accessory to murder the state had to prove beyond a reasonable doubt that he intentionally aided Lopez in conduct that constituted the offense of murder. He argues that the evidence does not support that finding. We conclude that the jury had sufficient evidence before it to find that the defendant aided Lopez in conduct that constituted the offense of murder. The state presented the following testimony on this issue. The defendant stated that he possessed a gun and was going to Davenport Avenue to shoot. The defendant asked if anyone wanted to come with him. After Lopez volunteered, the defendant drove his car to the Davenport Avenue area and proceeded slowly, allowing his passenger, Lopez, to fire many shots at the victim. The victim died as a result of gunshot wounds. The jury could reasonably conclude beyond a reasonable doubt that the defendant was guilty of being an accessory to murder.

II

The defendant next contends that the court improperly instructed the jury on reasonable doubt. In its instructions to the jury, the trial court stated: “Reasonable doubt is the kind of doubt upon which reasonable people like yourself in the more serious and important affairs in your own lives would hesitate to act.” The defendant admits that he did not object to this portion of the charge, but claims that it is reviewable under the holding in State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973), and State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). He argues that in giving the improper instruction, the trial court deprived him of a fundamental constitutional right to a fair trial.

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

The instruction to which the defendant objects is similar to instructions that have been previously approved by the Supreme Court. State v. Gomez, 225 Conn. 347, 353-54, 622 A.2d 1014 (1993); State v. Dyson, 217 Conn. 498, 504-505 n.3, 586 A.2d 610 (1991); State v. Johnson, 214 Conn. 161, 177-80, 571 A.2d 79 (1990); State v. Thomas, 214 Conn. 118, 119-20, 570 A.2d 1123 (1990); State v. Smith, 210 Conn. 132, 147-50, 554 A.2d 713 (1989); State v. Lytell, 206 Conn. 657, 664-65, 539 A.2d 133 (1988); State v. Leecan, 198 Conn. 517, 538-39, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S. Ct. 2922, 91 L. Ed. 2d 550 (1986); State v. Findlay, 198 Conn. 328, 346, 502 A.2d 921, cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986); State v. Derrico, 181 Conn. 151, 170-71, 434 A.2d 356, cert. denied, 449 U.S. 1064, 101 S. Ct. 789, 66 L. Ed. 2d 607 (1980).

“In the above cases, [our Supreme Court] concluded that the same or similar instructions did not decrease the state’s burden of proof when viewed in the context of the entire charge. See State v. Lytell, supra, 206 Conn. 664, (test is whether the jury charge as a whole presents the case adequately to the jury so that no injustice is done).” State v. Gomez, supra, 225 Conn. 354. In this case as well, the jury charge as a whole clearly defined the proof beyond a reasonable doubt standard. The defendant’s constitutional right to a fair trial has not been violated in this case. See id.

Because we find neither a clear violation of a fundamental constitutional right nor a deprivation of a fair trial, the defendant’s unpreserved claim does not satisfy the second and third conditions set forth in State v. Golding, supra, 213 Conn. 239-40. Therefore, the defendant cannot prevail on this claim. See State v. Gomez, supra, 225 Conn. 353-54.

The judgment is affirmed.

In this opinion the other judges concurred.

       This appeal was taken originally to the Supreme Court. Pursuant to Practice Book § 4023, the Supreme Court transferred the appeal to this court.

       General Statutes § 53a-54a (a) provides in pertinent part: “A person is guilty of murder when, with intent to cause the death of another person, he causes the death of such person or of a third person or causes a suicide by force, duress or deception . . . .”

       General Statutes § 53a-8 (a) provides: “A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”

       General Statutes § 53a-48 (a) provides: “A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”

       Other members of the Liberty Street gang also slowly drove by the place w'here the victim was playing basketball at. the same time that the defendant did. One of them, David Morales, was driving a grey Mazda, and his passenger, George Orta, fired several shots at the Crnkovic brothers.

       Even though the defendant maintained that Morales was the passenger in his car, other witnesses testified that Lopez was the passenger in the defendant’s car and that Lopez fired the shots at the Crnkovic brothers.

       See footnote 3.

       The trial court instructed the jury on reasonable doubt as follows: “The burden to prove the defendant guilty of the crimes with which he is charged is upon the state. The defendant does not have to prove his innocence. That means that the state must prove beyond a reasonable doubt each and every element necessary to constitute the three crimes charged. Whether the burden of proof resting upon the state is sustained depends not on the number of witnesses nor on the quantity of the testimony but on the nature and the quality of the testimony. Please bear in mind that one witness’ testimony, however, is sufficient to convict if you believe it beyond a reasonable doubt and if it establishes either standing alone or together with any other testimony all of the elements of the crimes charged beyond a reasonable doubt.
      “A reasonable doubt means a doubt founded upon reason or common sense and not on the mere possibility of innocence. As the words imply, it is a doubt held by a reasonable person after all the evidence in the case is carefully analyzed, compared and weighed. It is a doubt which is something more than a guess or a surmise. It is not a conjecture or a fanciful doubt. The state does not have to prove guilt beyond all doubt or to a mathematical or an absolute certainty.
      “A reasonable doubt may arise not only from the evidence produced, but also from the lack of evidence. Since the burden is upon the state to prove a defendant guilty beyond a reasonable doubt of every essential element of each of the crimes charged, a defendant has the right to rely upon a failure of the prosecution to establish such proof. Reasonable doubt is the land of a doubt upon which reasonable people like yourself in the more serious and important affairs in your own lives would hesitate to act.
      “On the other hand, if all the evidence has been impartially and thoroughly reviewed by you and it produces in your mind a settled and abiding belief that you would be willing to act upon in matters of the highest importance relating to your own affairs, then in that event you would be free from a reasonable doubt and should declare the defendant to be guilty. If, however, on all the evidence you have a reasonable doubt as to the guilt of the defendant, you must find him not guilty. If the jury views all the evidence in the case as reasonably permitting either of two conclusions, one of innocence, the other of guilt, the jury should of course adopt the conclusion of innocence.”


author: SPEAR, J.

text:
    MICHAEL MAFFUCCI v. ROYAL PARK LIMITED PARTNERSHIP ET AL.
    (14586)
    Foti, Spear and Hennessy, Js.
    Argued June 3
    officially released August 13, 1996

      Joel M. Ellis, for the appellant (plaintiff).

      Barbara J. Sheedy, for the appellee (named defendant).

      Brian T. Henebry, with whom were James K. Robertson and, on the brief, Maureen D. Cox, for the appellee (defendant Northeast Utilities).

      Janet C. Spegele, Cynthia L. Amara and Stephen Ostrach filed a brief for Connecticut Business and Industry Association et al. as amici curiae.
   SPEAR, J.

In this negligence action, the plaintiff appeals from the judgment of the trial court granting the defendants’ motion for summary judgment. On appeal, the plaintiff claims that the trial court improperly concluded that no genuine issue of material fact existed as to (1) whether the defendants had actual or constructive notice as to the presence of trespassers, and (2) whether posted signs adequately warned the public as to the danger that existed on the property. We conclude that genuine issues of material fact did exist and therefore reverse the judgment of the trial court.

The pleadings, accompanying affidavits and deposition testimony presented to the trial court reveal the following relevant facts. On January 15,1991, the plaintiff was severely injured when he came into contact with an energized circuit in a switchgear located on the premises of the old Royal Typewriter building in Hartford. The plaintiff and Robert Fricke entered the switchgear with the intent to remove copper. The plaintiff had removed six copper bars prior to being injured. On the date of the injury, Royal Park owned the building, and Northeast Utilities owned and operated the switchgear. Prior to the date of the injury, the electrical power from the switchgear to the building had been disconnected, but electrical power still flowed to the switchgear.

The building was bordered by a fence approximately eight feet high that bore “No Trespassing” signs. The fence, however, had an open gate through which the plaintiff and Fricke gained access to the building. The switchgear, located on the west side of the property, contained signs on its east and south sides that read “Danger High Voltage.” The plaintiff, who was injured on the north side of the switchgear, claims that he never saw the posted warnings. Moreover, a padlock used to secure the switchgear had been cut and left on the ground.

The deposition testimony of the plaintiff and Fricke revealed the following. From a car on Francis Court, the plaintiff and Fricke had observed the activities at the building for a period of two weeks prior to the date of their entry to satisfy themselves that they could gain access and take the copper. During this period, the plaintiff and Fricke observed people on the property with carts and trucks looking for copper. Fricke testified that they believed the building was abandoned because there were police in the vicinity of where people were taking copper and the police did not interfere with their activity. Fricke also testified that people leaving the property told them that they were receiving over $1 per pound for the copper and that the property appeared abandoned.

Both men stated in their depositions that they never saw a “No Trespassing” sign on the fence. The plaintiff also testified that every cabinet on the side of the switchgear where he was injured was open and that inside there were obvious signs that others had been there to remove copper. The plaintiff further claimed that he saw no warning signs alerting him to the danger of electrocution, but that, even had he seen such signs, he still would have entered because he assumed, based on his observations of dangling wires and other signs of abandonment, that the electrical power had been disconnected.

Further deposition testimony revealed the following. Robert Larsen, a claim representative for Connecticut Light and Power Company (CL&P), a subsidiary of Northeast Utilities, testified that he entered the building next to the switchgear on the day of the accident and found that “it looked like there had been people in here on a regular basis .... And [the supervisor] mentioned to me or stated to me at the time that they knew that there had been people in. They had been trying to secure the building. And everything that they did to secure it was damaged and people got in with all the precautions that they had taken.” Moreover, Randolph Brown, vice president and general partner of Royal Park, testified that employees had reported to him the existence of trespassers.

The plaintiff filed a negligence action in two counts against the defendants. On August 15,1994, the defendants filed a joint motion for summary judgment. The defendants attached affidavits, deposition testimony, and a memorandum of law in support of their motion. In response, the plaintiff filed a memorandum of law in opposition to the defendants’ joint motion for summary judgment. After considering the pleadings, depositions, and accompanying affidavits, the trial court granted the defendants’ motion.

In granting summary judgment for Royal Park, the trial court found that the only duty Royal Park owed to the plaintiff trespasser was a duty not to injure intentionally. The court based its decision on its finding that “the record is void of evidence that the switchgear had been subject to any prior intrusions by trespassers . . . .” Because the trial court found that Royal Park did not have any notice as to the existence of trespassers, the court rejected the plaintiffs claim that Royal Park had a duty to exercise reasonable care to warn trespassers of the dangerous conditions that existed on the property.

In granting summary judgment for Northeast Utilities, the trial court found that there was “no evidence that the defendant . . . had prior knowledge or should have known that trespassers were entering the switchgear prior to the incident.” The trial court, therefore, rejected the plaintiffs claim that Northeast Utilities owed a duty of greater care than that applicable to undiscovered trespassers. The court, in the alternative, found that even if Northeast Utilities had notice of trespassers entering the switchgear, the evidence established that there were sufficiently clear warnings indicating the dangers and risk involved. This appeal followed.

The plaintiff claims that the trial court improperly granted the defendants’ motion for summary judgment because genuine issues of material fact exist. We agree.

“ ‘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. . . . Although the party seeking summaiy judgment has the burden of showing the nonexistence of any material fact ... 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 issue. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The test is whether a party would be entitled to a directed verdict on the same facts.’ ” (Citations omitted.) Citicorp Mortgage, Inc. v. Porto, 41 Conn. App. 598, 601, 677 A.2d 10 (1996); see also Home Insurance Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1026 (1995); Columbia Federal Savings Bank v. International Site Consultants, 40 Conn. App. 64, 72, 669 A.2d 594, cert. denied, 236 Conn. 910, 671 A.2d 824 (1996).

It is also well established that “[sjummary judgment procedure is especially ill-adapted to negligence cases, where, as here, the ultimate issue in contention involves a mixed question of fact and law, and requires the trier of fact to determine whether the standard of care was met in a specific situation.” (Internal quotation marks omitted.) Michaud v. Gurney, 168 Conn. 431, 434, 362 A.2d 857 (1975); see also Fogarty v. Rashaw, 193 Conn. 442, 446, 476 A.2d 582 (1984); DiUlio v. Goulet, 2 Conn. App. 701, 703, 483 A.2d 1099 (1984). A determination of negligence is necessarily one of fact. Michaud v. Gurney, supra, 434; Cappiello v. Haselman, 154 Conn. 490, 495, 227 A.2d 79 (1967); Balboni v. Stonick, 2 Conn. App. 523, 527, 481 A.2d 82 (1984). As such, “[i]ssues of negligence are ordinarily not susceptible of summary adjudication but should be resolved by trial in the ordinary manner.” Spencer v. Good Earth Restaurant Corp., 164 Conn. 194, 199, 319 A.2d 403 (1972); see also Amendola v. Geremia, 21 Conn. App. 35, 37, 571 A.2d 131, cert. denied, 215 Conn. 803, 574 A.2d 217 (1990).

I

The plaintiff first asserts that a genuine issue of material fact exists as to whether the defendants had actual or constructive notice as to the presence of trespassers on the property. The issue of actual or constructive notice directly relates to the duty of care owed by a landowner to trespassers.

Ordinarily, “ ‘the possessor of real estate owes no duty to trespassers ... to keep the property in a reasonably safe condition for their use . . . .’ ” Morin v. Bell Court Condominium Assn., Inc., 223 Conn. 323, 328, 612 A.2d 1197 (1992), quoting D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Torts (3d Ed.) § 47, p. 110. The only duty a landowner owes to a trespasser whose presence is undiscovered is a duty not to injure intentionally. Morin v. Bell Court Condominium Assn., Inc., supra, 328; see also W. Prosser & W. Keeton, Torts (5th Ed.) § 60, p. 416. Our courts have, however, recognized a duty of greater care that applies when a landowner knows, or should know, that trespassers regularly come onto his or her property. In Lucier v. Meriden-Wallingford Sand & Stone Co., 153 Conn. 422, 429, 216 A.2d 818 (1966), our Supreme Court cited with approval the doctrine established in § 335 of the 3 Restatement (Second), Torts. Section 335 provides: “A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if (a) the condition (i) is one which the possessor has created or maintains and (ii) is, to his knowledge, likely to cause death or serious bodily harm to such trespasser and (iii) is of such a nature that he has reason to believe that such trespassers will not discover it, and (b) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved.”

The trial court found, as a matter of law, that neither defendant had actual or constructive notice of prior trespassers, and, thus, each owed only a duty not to injure intentionally. In viewing the evidence in the light most favorable to the plaintiff as the nonmoving party; see Citicorp Mortgage, Inc. v. Porto, supra, 41 Conn. App. 601; we conclude that the pleadings, deposition testimony and affidavits create a genuine issue of material fact as to whether the defendants had actual or constructive notice.

First, the evidence revealed that the padlock used to secure the switchgear had been cut and left on the ground, indicating the prior presence of trespassers. Second, there was ample deposition testimony that raised an issue as to the prior presence of trespassers. Both the plaintiff and Fricke testified that they noticed people two weeks prior to the date of the accident near the switchgear with carts and trucks looking for copper. The plaintiff also testified that every cabinet on the side of the switchgear where he was injured was open and that inside there were obvious signs that others had been there to remove copper. Larsen, the claims representative for CL&P, testified that on the day of the accident, the building next to the switchgear “looked like there had been people in here on a regular basis .... And [the supervisor] mentioned to me or stated to me at the time that they knew that there had been people in." (Emphasis added.) Third, Brown, vice president and general partner of Royal Park, testified that employees had reported to him the existence of trespassers. On the basis of the pleadings, affidavits and deposition testimony, we conclude that there exist issues of material fact as to whether the defendants had actual or constructive notice as to the presence of trespassers and whether Royal Park “maintained” the switchgear. Summary judgment was, therefore, not appropriate.

II

The plaintiff next asserts that a genuine issue of material fact exists as to whether there were signs that adequately warned entrants on the property of the dangers that existed. The trial court found that the record established that “the switchgear was clearly and sufficiently marked with ‘High Voltage’ warnings that would alert all but a singularly intentioned thief’ and, therefore, granted summary judgment.

Even where a trial court finds that the evidence strongly favors one party, that court may not arrogate to itself the role of trier of fact and, thus, decide issues of material fact as a matter of law. “ ‘A party has the same right to submit a weak case [to the jury] as he has to submit a strong one.” Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 36, 632 A.2d 1134 (1993), quoting Falker v. Samperi, 190 Conn. 412, 419, 461 A.2d 681 (1983). In viewing the evidence in the light most favorable to the plaintiff, we conclude that the issue of whether the posted warnings were adequate should be submitted to a jury as a question of fact. See Battistoni v. Weatherking Products, Inc., 41 Conn. App. 555, 564, 676 A.2d 890 (1996); Sharp v. Wyatt, Inc., 31 Conn. App. 824, 834, 627 A.2d 1347 (1993), aff'd, 230 Conn. 12, 644 A.2d 871 (1994).

First, the pleadings and accompanying affidavits establish that the “Danger High Voltage” warning signs were located on the south and east sides of the switchgear. Such evidence substantiates the claim of the plaintiff, who entered the switchgear on the north side, that he never saw the signs. Reasonable minds could reach different conclusions as to whether there were a sufficient number of signs around the switchgear.

Reasonable minds could also differ as to whether the posted signs adequately warned those on the property of the existing danger. Deposition testimony revealed that the switchgear appeared to have no electricity flowing to it. There was testimony that the electrical power flowing from the switchgear to the building had been disconnected. Furthermore, deposition testimony disclosed that electrical wires had been stripped, copper bars removed, and trespassers had entered the switchgear. A jury should determine whether the posted warnings should have been more detailed in light of the appearances that indicated that there was no electricity flowing to the switchgear. Accordingly, the trial court improperly decided, as a matter of law, the issue as to the adequacy of the warnings.

The judgment is reversed and the case is remanded with direction to deny the motion for summary judgment.

In this opinion the other judges concurred.

       The defendants are Royal Park Limited Partnership (Royal Park) and Northeast Utilities.

       The switchgear is a large metal box divided into several cabinets that contain electrical switching equipment.

       In his revised complaint, the plaintiff alleged that Royal Park was negligent in that it (1) allowed people to enter the premises when it knew that the switchgear had electrical power and knew or should have known that people enter the switchgear, (2) failed to give any warning to the plaintiff of the dangerous condition, and (3) failed to cure the dangerous condition when it knew or should have known that such dangerous condition existed.
      The plaintiff alleged that Northeast Utilities was negligent in that it (1) allowed people to enter the switchgear when it knew that the switchgear had electrical power and knew or should have known that people enter the switchgear, (2) failed to give any warning to the plaintiff of the dangerous condition, (3) failed to cure the dangerous condition when it knew or should have known that such dangerous condition existed, and (4) failed to use every effort properly to warn and protect the public from danger and failed to exercise all possible care to reduce the hazard to which employees, customers and others may be subject by reason of its equipment and facilities pursuant to § 16-11-102 (a) of the Regulations of Connecticut State Agencies.

         Our regulations also establish a standard of care applicable to utilities. Section 16-11-102 (a) of the Regulations of Connecticut State Agencies provides that “[ejvery utility shall use every effort to properly warn and protect the public from danger and shall exercise all possible care to reduce the hazard to which employees, customers and others may be subjected by reason of its equipment and facilities.” In its memorandum of decision filed on December 24, 1994, the trial court failed to discuss this regulation and, instead, based its decision on the duty of care pursuant to § 335.
      On December 30, 1994, the plaintiff filed a motion to open judgment and for reargument, claiming that the court failed to rule on the applicability of the regulation. The plaintiff, relying on Citerella v. United Illuminating Co., 158 Conn. 600, 607, 266 A.2d 382 (1969), argued that the regulation creates a standard of care higher than § 335, and that a violation of the regulation by a utility constitutes negligence per se. In response to the plaintiff s motion, the trial court issued another memorandum of decision, filed on March 2, 1995, and stated without further explanation: “This court disagrees and finds that regulation § 16-11-102 does not bar the analysis applied in this court’s original decision.” In articulating its decision, the trial court found: “For all questions pertaining to regulation § 16-11-102, this court has found that it does not establish a standard of care higher than the negligence standard nor § 335 of the Restatement of Torts.” We need not address the issue of whether § 16-11-102 creates a higher standard of care than does § 335. There exists no dispute that § 335 requires landowners to warn those trespassers they know, or should know, constantly intrude on the land of any dangerous condition that exists on the land. Our decision, thus, focuses squarely on whether the pleadings and other evidence before the trial court create an issue of material fact as to whether the defendants had such actual or constructive notice of prior trespassers so as to preclude summary judgment on this issue.

       The trial court’s conclusion that Royal Park owed only a duty not to injure the plaintiff intentionally was premised not only on its finding that Royal Park did not have notice of prior trespassers, but also on its finding that Royal Park “neither created nor maintained,” within the meaning of § 335 (a) (1) (i) of the Restatement (Second) of Torts, the switchgear that caused the ii\jury to the plaintiff. This finding that Royal Park did not maintain the switchgear constitutes a finding of fact rather than a determination that no issue of material fact exists.
      Although Royal Park did not own or operate the switchgear, the switchgear was located on its property. As we have previously stated, landowners have a duty to warn those who regularly trespass on their property of those dangerous conditions that exist on the property. 3 Restatement (Second), Torts § 335. We are also guided by our Supreme Court’s decision in Starr v. Commissioner of Environmental Protection, 226 Conn. 358, 360, 627 A.2d 1296 (1993). There, our Supreme Court interpreted the provision “maintaining ... a condition” found in General Statutes § 22a-432. The court concluded that where a landowner becomes aware of a dangerous condition on his or her land, the landowner is charged with “maintaining” that condition despite not having created the condition due to the landowner’s dominion over the property. Whether Royal Park, as landowner, “maintains” the switchgear, and, thereby owes a duty of care consistent with § 335 to those it knows, or should know, regularly trespass on its property is a question of fact.

       See footnote 5.


author: FOTI, J.

text:
    THOMAS P. MAZUROSKI v. JAMES A. HERNOVICH
    (14636)
    Foti, Landau and Spear, Js.
    Argued May 1
    officially released August 13, 1996

      James E. Keman, with whom was John K. McDonald, for the appellant (plaintiff).

      Thomas A. Kaelin, with whom, on the brief, was Alisa R. Namacher, for the appellee (defendant).
   FOTI, J.

The plaintiff appeals from the judgment for the defendant rendered, following a jury trial. The plaintiff claims that the trial court improperly (1) instructed the jury regarding the special defenses, and (2) denied his motion to set aside the verdict. The defendant asserts that the general verdict rule applies, precluding appellate review of the plaintiffs claims. We agree with the defendant and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On July 1, 1989, the defendant and the plaintiffs girlfriend were neighbors in Oakville. The plaintiff arrived at his girlfriend’s house on that morning and began yelling at the defendant, who was standing in his driveway with his children. The plaintiff was upset because the defendant’s dog had been on his girlfriend’s property. The plaintiff crossed the defendant’s property and approached him in a threatening manner. The defendant then pushed the plaintiff.

As a result of this incident, the plaintiff filed a two count complaint against the defendant, the first count alleging negligence and the second claiming intentional or reckless conduct. In his answer, the defendant admitted pushing the plaintiff, but denied that this conduct was negligent, reckless or intentional. The defendant also filed two special defenses alleging contributory negligence and self-defense. Prior to jury deliberations, the plaintiff neither moved for a directed verdict nor-requested jury interrogatories or separate verdicts. The plaintiff did not object to the submission of both counts and both special defenses to the jury. The plaintiff requested and received a court instruction on negligence, recklessness and intentional conduct. The jury returned a general verdict in favor of the defendant.

The plaintiff claims that the trial court’s instructions concerning the special defenses were misleading to the jury. The plaintiff argues that the trial court failed to clarify to the jury that the defendant’s special defense of contributory negligence applied only to the plaintiffs claim of negligence, contained in count one, while the defendant’s special defense of self-defense related only to the plaintiffs claim of intentional or reckless conduct, contained in count two. The plaintiff maintains that by combining the defendant’s two special defenses, the trial court’s instructions improperly allowed the jury to consider contributory negligence as a defense to the plaintiffs claim of intentional and reckless conduct.

We first consider the defendant’s contention that the general verdict rule precludes our review of the plaintiffs claims. “As it has generally been understood . . . [t]he so-called general verdict rule provides that, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. Stone v. Bastarache, 188 Conn. 201, 204, 449 A.2d 142 (1982); Colucci v. Pinette, 185 Conn. 483, 489, 441 A.2d 574 (1981).” (Internal quotation marks omitted.) Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993).

In Curry, our Supreme Court delineated the parameters of the general verdict rule, concluding that the rule applies in the following five situations: “(1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case may be; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as the case was tried but that should have been specially pleaded.” Id., 801. In this case, the defendant’s denials of the plaintiffs claims and his special defenses fall squarely into the fourth category contemplated by the Curry court. Therefore, this case presents a factual situation to which, absent interrogatones that reveal the basis for the verdict, the application of the rule is appropriate.

We have recently concluded “that it is crucial for an appellant to provide us with a record that enables us, as a reviewing court, to determine which claims or defenses the jury resolved and in whose favor they resolved them.” Fabrizio v. Glaser, 38 Conn. App. 458, 463, 661 A.2d 126, aff'd, 237 Conn. 25, 675 A.2d 844 (1996). Unlike the jury verdict in Gajewski v. Pavelo, 229 Conn. 829, 837, 643 A.2d 1276 (1994), where the jurors “ ‘unanimously agree [d] that all claims against the defendants . . . [were] inconclusive,’ ” here, the jury verdict form merely found “for the defendant.”

The defendant’s denial of the plaintiffs allegations of negligence in the first count, and the defendant’s special defense of contributory negligence constituted two separate and distinct defenses, either of which may have supported the verdict for the defendant on the first count. Similarly, the defendant’s denial of the plaintiffs allegations in the second count of reckless or intentional conduct, and his special defense of self-defense also constituted two severable and distinct defenses. Either of these defenses was sufficient to support the verdict for the defendant on the claim of intentional or reckless conduct.

Contrary to the plaintiffs arguments, there is no evidence to suggest that the jury applied the special defense of contributory negligence to relieve the defendant of liability for the plaintiffs claim of intentional or reckless conduct. “We are precluded from delving into the minds of the jurors in order to ascertain the basis and the rationale underlying their decision.” Eagar v. Barron, 2 Conn. App. 468, 472, 480 A.2d 576 (1984). “Where a jury reasonably could have reached its conclusion, its verdict should not be disturbed.” Palmieri v. Intermagnetics General Corp., 17 Conn. App. 488, 490, 553 A.2d 1167 (1989).

In this case, the jury had two separate, legitimate and rational grounds on which to base its verdict regarding the plaintiffs second count. We cannot determine whether the jury found for the defendant on the basis of the plaintiffs failure to prove the allegations of his complaint or the defendant’s proof of the allegations of his special defenses. We, therefore, “ ‘presume that the jury found every issue in favor of the prevailing party’ Curry v. Burns, supra, 225 Conn. 786; and apply the general verdict rule. See Stone v. Bastarache, supra, 188 Conn. 204; O’Brikis v. Supermarkets General Corp., 34 Conn. App. 148, 153, 640 A.2d 165 (1994). Our application of the general verdict rule precludes further review of the plaintiffs claims.

The judgment is affirmed.

In this opinion the other judges concurred.

       There is neither a memorandum of decision nor a signed transcript regarding the trial court’s denial of the plaintiffs motion to set aside the verdict. The plaintiff filed an unsigned transcript of the court’s oral decision in the appendix to his brief.

       Parties seeking to preclude the application of the general verdict may seek a special verdict on each count or elicit specific grounds for the verdict by submitting interrogatories to the jury. Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993).