author: LANDAU, J.

text:
    O. PAUL SHEW v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (15279)
    Foti, Landau and Spear, Js.

      Argued December 11, 1996
    officially released April 1, 1997

      Victor R. Perpetua, with whom, on the brief, were Regina M. Hopkins, commission counsel, and Mitchell W. Pearlman, general counsel, for the appellant (named defendant).

      Felix J. Springer, with whom, on the brief, was Sarah C. Baskin, for the appellee (plaintiff).
   LANDAU, J.

This is an appeal from the judgment of the trial court in favor of the plaintiff, O. Paul Shew, reversing the decision of the defendant freedom of information commission (commission) ordering the plaintiff to provide access to certain documents. On appeal, the commission claims that the trial court improperly (1) substituted its judgment for that of the administrative agency, (2) concluded that the attorney-client privilege barred disclosure of certain documents and (3) concluded that the requested documents were not required to be disclosed pursuant to General Statutes § 1-19 (c) (l). We affirm the judgment of the trial court.

The following facts are not in dispute. The plaintiff was the town manager of the town of Rocky Hill. From December, 1991, to June, 1992, he conducted an investigation of the town’s police chief, Philip Schnabel, to determine whether the chiefs employment with the town should be terminated. To assist in the investigation, he hired attorneys Felix Springer and Elaine Stuhlman. Springer concentrated on reviewing the trial transcript and evidence in a civil tort case; see Schnabel v. Tyler, 32 Conn. App. 704, 630 A.2d 1361 (1993), aff'd, 230 Conn. 735, 646 A.2d 152 (1994); because the jury verdict in that case raised serious concerns about whether Schnabel had abused the authority of his office. Stuhlman concentrated on interviewing town employees and other persons to determine whether there may have been evidence outside the trial record that Schnabel had abused his authority. Stuhlman also gave the town manager legal advice related to her findings. The town manager hired Springer and Stuhlman in an effort to avoid legal complications and because he thought that General Statutes § 7-278, which provides statutory protection to police chiefs, necessitated legal counsel.

From January to April, 1992, Stuhlman conducted interviews, prepared draft summaries of the interviews and prepared affidavits and a preliminary draft report based on the interviews. In April, 1992, Stuhlman forwarded summaries of the interviews together with affidavits to Springer. In June, 1992, Springer forwarded a report documenting Schnabel’s actions to the town manager.

In December, 1993, the defendant Edward A. Peruta requested from the town manager access to all statements “created and/or collected as part of an investigation that resulted in the termination of former Rocky Hill police Chief Schnabel.” Specifically, Peruta sought access to Stuhlman’s documents. The town manager denied Peruta’s request, claiming that the requested documents were protected from disclosure by the attorney-client privilege. Peruta filed a complaint with the commission challenging the town manager’s denial of access to those documents.

Following a hearing and in camera review of the challenged documents, the commission found that the documents were public records. It found that Stuhlman’s documents were not exempt from disclosure under General Statutes § 1-19 (b) (1) as “preliminary drafts or notes” and that the documents were not protected by the attorney-client privilege pursuant to § 1-19 (b) (10). The commission ordered the town manager to make the documents available to Peruta in accordanee with § 1-19 (a). The commission’s decision regarding the “preliminary drafts or notes” exception was based on its interpretation of the statutory language to mean only documents that are used in the creation of some subsequent finished document. It found that the Stuhlman documents were essentially products themselves, not “preliminary” to anything developed from them and, therefore, were not exempt. The commission also rejected the claimed attorney-client privilege, finding that Stuhlman was neither hired nor acting as an attorney for the plaintiff, but was acting as “an investigator with legal credentials.”

The town manager appealed to the trial court pursuant to General Statutes § 4-183, claiming that the Stuhlman documents were protected against disclosure by the attorney-client privilege and exempt under § 1-19 (b) (10) and were “preliminary drafts or notes” and exempt under § 1-19 (b) (1).

The trial court held that the commission improperly found that the attorney-client privilege did not exist. It also disagreed with the commission’s conclusion that the privilege should not prevent disclosure of the Stuhlman documents because they are not the kind of communication that the privilege protects. While the trial court found impropriety in the commission’s finding that the privilege did not apply to the communications in question, it also found that the commission failed to make further findings concerning the criteria set out in Upjohn Co. v. United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981). Therefore, the trial court remanded the case to the commission for that purpose.

The trial court also found that the commission’s conclusion that the documents in question were not preliminary drafts or notes within the meaning of § 1-19 (b) (1) was improper. The trial court remanded the case to the commission to make findings, as required by § 1-19 (b) (1), as to whether the town manager properly determined that the public interest in withholding the documents outweighed the public interest in their disclosure.

I

The commission first claims that the trial court failed to exercise appropriate judicial restraint in applying the suitable standard of judicial review set forth in General Statutes § 4-183 (j) when it sustained the administrative appeal regarding the factual issue of whether Stuhlman was acting as an attorney or investigator. The commission argues that, because its action was supported by substantial and competent evidence on the whole record, the trial court should have upheld its decision. The town manager asserts, however, that the trial court’s review was proper because the commission’s decision was clearly erroneous in view of the lack of substantial and probative evidence in the record.

“Judicial review of [an administrative agency’s] action is governed by the Uniform Administrative Procedure Act (General Statutes, c. 54, §§ 4-166 through 4-189), and the scope of that review is very restricted. . . . Neither this court nor the trial court may retry the case or substitute its own judgment for that of the defendant. . . . New Haven v. Freedom of Information Commission, 205 Conn. 767, 773, 535 A.2d 1297 (1988). Even as to questions of law, [t]he court’s ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. . . . Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts. . . . [Id., 774.] Although the interpretation of statutes is ultimately a question of law ... it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. . . . Griffin Hospital v. Commission on Hospitals & Health Care, 200 Conn. 489, 496, 512 A.2d 199, appeal dismissed, 479 U.S. 1023, 107 S. Ct. 781, 93 L. Ed. 2d 819 (1986); see also New Haven v. Freedom of Information Commission, supra, 773-74; Wilson v. Freedom of Information Commission, 181 Conn. 324, 342-43, 435 A.2d 353 (1980). . . . Perkins v. Freedom of Information Commission, [228 Conn. 158, 164-65, 635 A.2d 783 (1993)]. . . .Connecticut Alcohol & Drug Abuse Commission v. Freedom of Information Commission, 233 Conn. 28, 39, 657 A.2d 630 (1995).” (Internal quotation marks omitted.) Hartford v. Freedom of Information Commission, 41 Conn. App. 67, 72-73, 674 A.2d 462 (1996).

After reviewing the record, we agree with the trial court that, contrary to the commission’s contention that the trial court failed to give any weight to the evidence that the town manager had not sought legal advice from Stuhlman, all of the relevant evidence in the record supports the trial court’s conclusion that the town manager hired Stuhlman for legal advice. The record reveals that the town manager stated that he needed legal advice in the investigation of the police chief, that he knew Stuhlman was a competent attorney, and that he would not have hired her if she had not been an attorney. The town manager further stated that he felt that an attorney was required to conduct the interviews concerning the police chief because of the statutory protections afforded the chief by § 7-278 and to avoid legal complications with regard to potential disciplinary matters relating to the chief. In contrast, there is no evidence in the record that Stuhlman was not acting in a legal capacity. On the basis of the record before us, we conclude that the trial court properly concluded that the town manager hired Stuhlman as an attorney and not as “an investigator with legal credentials.”

II

The commission next claims that the trial court improperly found that the Stuhlman documents were protected against disclosure by an attorney-client privilege. The commission argues that, even if we conclude that the town manager hired Stuhlman to obtain legal advice, the communications fall outside the scope of the privilege. Because we have already concluded in part I that Stuhlman was hired to render legal advice, we must next consider what impact the attorney-client privilege has on communications between an attorney and a municipality or corporation that employs her.

The common-law rule of attorney-client privilege is, “[w]here legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection maybe waived.” (Internal quotation marks omitted.) LaFaive v. DiLoreto, 2 Conn. App. 58, 65, 476 A.2d 626, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984). The privilege exists “to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice.” Upjohn Co. v. United States, supra, 449 U.S. 390. We note, however, that “since the privilege has the effect of withholding relevant information from the factfinder, it applies only where necessary to achieve its purpose. Accordingly it protects only those disclosures—necessary to obtain informed legal advice—which might not have been made absent the privilege. . . . Fisher v. United States, 425 U.S. 391, 403, 96 S. Ct. 1569, 48 L. Ed. 2d 39 (1976).” Ullmann v. State, 230 Conn. 698, 713, 647 A.2d 324 (1994).

In Upjohn Co. v. United States, supra, 449 U.S. 383, the United States Supreme Court addressed the problem of the attorney-client privilege in the corporate context. Upjohn involved an investigation, organized by Upjohn’s general counsel, into possibly illegal payments made by the corporation to foreign governments. As part of the investigation, the attorneys prepared a questionnaire that was sent to all foreign general and area managers, inquiring about payments from Upjohn to any employee or official of a foreign government. Subsequently, the Internal Revenue Service issued a summons demanding production of files pertaining to the investigation, including the questionnaires prepared for counsel and answered by the various corporate managers. The Supreme Court noted that a letter attached to the questionnaire stated that the investigation was under the direction of counsel, responses were highly confidential, and the completed questionnaires should be returned to counsel.

In determining if the privilege attached, the Supreme Court considered whether (1) the communication was part of a corporate purpose to obtain legal advice, (2) the communication concerned matters within the employees’ corporate duties, (3) each employee knew that he was making a confidential statement as part of a corporate purpose to secure legal advice, and (4) the statements were kept confidential, or disclosed in a manner consistent with the privilege. Id., 394-95. The court held that the attorney-client privilege protected the questionnaires and any notes on responses to interview questions from disclosure.

It is axiomatic that the privilege belongs to the client. See In re Sean H., 24 Conn. App. 135, 143, 586 A.2d 1171, cert. denied, 218 Conn. 904, 588 A.2d 1078 (1991). In the case of an individual client, the provider of the information and the person who acts on the attorney’s advice are one and the same. In the corporate-municipal government context, however, it will frequently be not only officers and agents—those who fall easily under the attorney-client privilege umbrella—but employees who possess the information needed by the lawyer. By limiting the privilege to officers and agents of the corporation or municipality, we frustrate the purpose of the privilege by discouraging the communication of relevant information by employees to attorneys seeking to render legal advice to the client corporation or municipality. See Upjohn Co. v. United States, supra, 449 U.S. 392.

Here, information, not available to upper level management—the town manager—was needed to supply a basis for legal advice concerning compliance with legalities involved in the possible termination of the police chief. Consistent with the fundamental purposes of the attorney-client privilege, these communications must be protected against compelled disclosure. This result is supported by the commission’s recognition of the privilege in § 1-19 (b) (10), which exempts from disclosure communications privileged by the attorney-client relationship. We hold that the communications by town employees to counsel are covered by the attorney-client privilege. Consistent with the teachings of Upjohn Co. v. United States, supra, 449 U.S. 383, communications to an attorney for a public agency are protected from disclosure by privilege if the following conditions are met: (1) the attorney must be acting in a professional capacity for the agency, (2) the communications must be made to the attorney by current employees or officials of the agency, (3) the communications must relate to the legal advice sought by the agency from the attorney, and (4) the communications must be made in confidence.

Ill

Finally, the commission argues that the trial court improperly found that the requested documents were not required to be disclosed pursuant to General Statutes § 1-19 (c) (1). Specifically, the commission argues that even if the documents were “preliminary drafts of a memorandum,” they were not “prepared by a member of the staff of a public agency” as required by § 1-19 (c) (1). We disagree.

General Statutes (Rev. to 1993) § 1-19 (c) provides in part that “ [notwithstanding the provisions of subdivision (1) of subsection (b) of this section, disclosure shall be required of (1) interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of a public agency, which is subject to revision prior to submission to or discussion among the members of such agency . . . .”

Because the commission concluded that the Stuhlman documents were not preliminary drafts or notes and, therefore, not exempt from disclosure under § 1-19 (b) (1), it did not reach the issue of the application of § 1-19 (c) (1). The trial court, after reviewing the documents in camera, found that the five documents were all either unfinished or preliminary; see Van Norstrand v. Freedom of Information Commission, 211 Conn. 339, 344, 559 A.2d 200 (1989); under § 1-19 (b) (1) and (c) (1). Although the trial court did not make an express finding that Stuhlman was a “member of the staff of a public agency,” she was hired by the town to provide legal advice. Stuhlman’s role as legal advisor for the Schnabel investigation was analogous to being a staff member as required by § 1-19 (c) (1). Thus, the trial court properly concluded that the documents were exempt from disclosure.

The judgment is affirmed.

In this opinion the other judges concurred.

       In addition to sustaining the plaintiffs appeal, the trial court remanded the case to the commission to make additional findings. Notwithstanding the fact that the remand requires the commission to take additional evidence, the trial court’s judgment is a final judgment under General Statutes § 4-183 Q) of the Uniform Administrative Procedure Act, which provides that “[f]or the purposes of this section, a remand is a final judgment.”

       Edward A. Peruta, a defendant in this action, did not appeal from the trial court’s judgment.

       General Statutes § 1-19 (c) provides in pertinent part: “[Disclosure shall be required of (1) interagency or intra-agency memoranda or letters, advisory opinions, recommendations or any report comprising part of the process by which governmental decisions and policies are formulated, except disclosure shall not be required of a preliminary draft of a memorandum, prepared by a member of the staff of apublic agency, which is subject to revision prior to submission to or discussion among the members of such agency . . . .”

       For purposes of this appeal, we will refer to the plaintiff as the town manager.

       In 1988, Philip Schnabel, former police chief of Rocky Hill, filed a defamation action against one of his officers, Clyde Tyler. Tyler counterclaimed against Schnabel in his official capacity, alleging false imprisonment, intentional infliction of emotional distress, violation of his constitutional rights to free speech and equal protection and abuse of process. The jury returned a verdict for Tyler on his counterclaims and awarded damages of $370,000, including punitive damages on each count.

       General Statutes § 4-183 Q) provides in relevant part: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are ... (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record .... If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may . . . remand the case for further proceedings. . . .”


source: Caselaw Access Project

author: FREEDMAN, J.

license: Public Domain

text:
    PATRICK J. BONA v. FREEDOM OF INFORMATION COMMISSION ET AL. JOHN G. ROWLAND v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (15127)
    (15128)
    O’Connell, Landau and Freedman, Js.

      Argued December 9, 1996
    officially released March 12, 1997

      Ralph G. Elliot, for the appellants (defendant Hartford Courant Company et al.).

      James R. Smith, with whom was Dana A. D’Angelo, for the appellee (plaintiff in the first case).

      James K. Robertson, Jr., for the appellee (plaintiff in the second case).

       March 12,1997, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   FREEDMAN, J.

These cases are appeals from the judgments of the trial court sustaining consolidated appeals by the plaintiffs, Patrick J. Bona and John G. Rowland, from a decision of the named defendant, the freedom of information commission (commission). The commission had ordered disclosure of a police incident report (report) concerning an alleged incident in April, 1994, at the Middlebury home of Deborah Rowland, the former wife of Rowland, the present Governor of Connecticut. We affirm the judgments of the trial court.

The following facts, as found by the commission and adopted by the trial court, are relevant'to these appeals. On October 10, 1994, the defendant Craig Baggott, a political reporter for the defendant Hartford Courant Company (Courant), hand delivered to the Middlebury police department a written request for incident reports, domestic violence reports and related materials, for the dates of April 9,10 and 11,1994. This request did not mention Rowland or his former wife. On October 11, 1994, Baggott hand delivered to Bona, the Middlebury police chief, a written request for all reports of “an incident at the Rowland home on South Street in Middlebury during April.” The request sought the disclosure of the records “today” and asked for a response “as soon as possible.” Upon receiving this request, Bona told Baggott that he would refer it to the town attorney. When Baggott pressed him for a response, Bona stated that he would not provide the information that day.

On the following day, October 12, counsel for the Courant faxed a letter to Mitchell W. Pearlman, an attorney who is the executive director of and general counsel to the commission. The letter informed Pearlman that Baggott had made a written request to Bona, which Bona had denied on October 11. Counsel for the Courant requested in the letter that the denial of Baggott’s October 10 request be heard simultaneously with commission docket number FIC 94-252 (FIC 94-252), the denial of a previous request dated September 1, 1994. The hearing on FIC 94-252 was scheduled to be heard the following day, October 13. A copy of the letter was faxed to Bona and the Middlebury town counsel.

On October 14, Baggott received a written response to his October 10 and 11 requests in a letter from Bona dated October 13. With respect to “reports of an incident at the Rowland home,” Bona provided Baggott with a copy of the “incident history” and, apparently relying on General Statutes § 1-19 (b) (3) (G), stated that he would not disclose the full incident report because it contained uncorroborated allegations subject to destruction pursuant to General Statutes § l-20c. The incident history revealed that Deborah Rowland had made a complaint to the Middlebury police on April 10, 1994, concerning an incident identified in the incident history as “family offenses, nonviolent” and “verbal between husband and wife.”

At the October 13, 1994 commission hearing, Deane C. Avery, the commissioner to whom the matter had been assigned, denied the Courant’s request to hold a simultaneous hearing that day on the September 1 and the October 10 and 11 requests for the report. On Octo ber 13, Avery also assigned an October 17,1994 hearing date on the Courant’s October 10 and 11 requests for the report, docketed as commission docket number FIC 94-255 (FIC 94-255).

At the hearing on October 17, Rowland was granted party status at his request. Both Bona and Rowland filed or orally made several motions at the outset of the hearing, raising several alleged procedural irregularities. All of the motions were denied by Avery and the hearing proceeded on the merits. On October 31, 1994, the commission issued its final decision in FIC 94-255, in which it ordered disclosure of the report within twenty-four hours of the decision and permitted Bona to redact certain portions of the report because they referred “to third parties who are not the subjects of the incident in question.”

Bona and Rowland appealed the commission decision to the Superior Court. At the hearing, the parties filed written stipulations that Bona and Rowland initiated these appeals, that Bona is the keeper of the records of the Middlebury police department and is responsible for the report, that Rowland is a subject mentioned in the report and was admitted as a party in the proceedings before the commission. The trial court found that Bona and Rowland were both aggrieved by the commission decision from which they appealed.

The trial court further found, inter alia, that “substantial rights of the plaintiffs Bona and Rowland have been prejudiced by the [commission’s] final decision ordering disclosure of the report, which the court finds is exempt from mandatory disclosure. The final decision was affected by error of law in the commission’s application and interpretation of the exemption under General Statutes § 1-19 (b) (3) (G), [was] clearly erroneous in view of the rehable, probative and substantial evidence on the whole record and [was] arbitrary and characterized by abuse of discretion.” Consequently, the trial court sustained the appeals of Bona and Rowland, and the Courant appealed to this court.

On appeal, the Courant argues that the trial court improperly (1) interpreted § 1-19 (b) (3) (G) or § l-20c as containing no obligation on the part of the police to make a good faith attempt to corroborate allegations before § 1-19 (b) (3) (G) maybe invoked, (2) interpreted § 1-19 (b) (3) (G) as not requiring the custodian of records to make a finding as to the public interest before refusing to disclose, (3) found that there was only one document, not three, at issue, (4) found that the documents at issue and in their totality were exempt from disclosure under § 1-19 (b) (3) (G), and (4) found that an interview that Courant reporter Christopher Keating had with Avery was an illegal ex parte communication under General Statutes § 4-181.

I

We first consider whether the report consisted of one document or three documents. The Courant argues that the trial court improperly viewed the three page report as a single document, when in fact there are three separate and distinct records concerning the incident at the Rowland home on April 10, 1994. These documents, as described in the final decision of the commission, “consist of three single page documents: one document . . . is entitled an ‘Incident Report Summary Sheet,’ the second document ... is entitled ‘Incident Report Narrative’ and the third document ... is an analysis for submission to the state police.” The Courant argues that each of these documents constitutes a separate and distinct “public record” within the meaning of General Statutes § l-18a (d) and, therefore, that each of them constitutes a separate record subject to the Freedom of Information Act, General Statutes § 1-7 et seq. (act). We disagree.

The trial court found that the Courant’s claim was not substantiated by the evidence in the record, stating that “[i]n accordance with [commission] regulations, Bona certified under oath to the [commission] that the three pages are ‘the original incident report for case number 94-02511.’ (Emphasis added.) Regs., Conn. State Agencies § 1-21J-35 (f) (5). It is clear that all three pages are treated as one report by Middlebury police.” Counsel for the Courant conceded at oral argument before this court that the question of whether the report constitutes one document or three documents was a question of fact to be resolved by the trial court, and that on appeal we apply the “clearly erroneous” standard. From our review of the evidence, including an examination of the three page report, we cannot say that the trial court’s conclusion that the report constitutes one document rather than three documents was clearly erroneous.

II

We next consider the Courant’s arguments regarding the statutory interpretation of §§ 1-19 (b) (3) (G) and 1-20c. According to the Courant, the trial court’s statutory interpretation leads to consequences unintended by the legislature and against the public interest. We disagree.

The trial court found that the report was exempt from disclosure under § 1-19 (b), which provides that “[n]othing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of . . . (3) records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of . . . (G) uncorroborated allegations subject to destruction pursuant to section l-20c. . . .” General Statutes § l-20c provides that “ [e]xcept for records the retention of which is otheiwise controlled by law or regulation, records of law enforcement agencies consisting of uncorroborated allegations that an individual has engaged in criminal activity shall be reviewed by the law enforcement agency one year after the creation of such records. If the existence of the alleged criminal activity cannot be corroborated within ninety days of the commencement of such review, the law enforcement agency shall destroy such records.”

Applying those statutes, the trial court held that the report contains uncorroborated allegations of criminal activity that are subject to destruction pursuant to § 1-20c. The trial court held, therefore, that the report was exempt from disclosure pursuant to § 1-19 (b) (3) (G).

The act “expresses a strong legislative policy in favor of the open conduct of government and free public access to its records. . . . The act does not, however, confer upon the public an absolute right to all government information. ... In those limited circumstances where the legislature has determined that some other public interest overrides the public’s right to know, it has provided explicit statutory exceptions. See, e.g., General Statutes § 1-19 (b). We have held that these exceptions must be narrowly construed.” (Citations omitted; internal quotation marks omitted.) Lieberman v. State Board of Labor Relations, 216 Conn. 253, 266, 579 A. 505 (1990).

The legislative history of §§ 1-19 (b) (3) (G) and 1-20c is helpful in guiding our interpretation. Section 1-20c was enacted in 1988, as § 2 of Public Acts 1988, No. 88-227 (P.A. 88-227). The statute was originally designed to deal with files of the statewide organized crime investigative task force.

Section 3 of P.A. 88-227, which had been codified as General Statutes § l-20d, related to the alteration of records of law enforcement agencies prior to disclosure. Specifically, it provided an exemption from disclosure for uncorroborated information that might damage a person’s reputation. Thus, as the trial court noted, “[P.A.] 88-227, [in § 2], established the affirmative duty on the part of law enforcement agencies to review their records of uncorroborated allegations one year after they were created and to destroy such records if the allegations could not be corroborated within ninety days thereafter. Concomitantly, [in § 3], the General Assembly provided that law enforcement agencies could redact three types of information from their records prior to public disclosure: information relating to informants, information relevant to a present or future law enforcement action and uncorroborated information which would be significantly damaging to the reputation of someone who had not been convicted of a crime.”

In 1990, the legislature enacted No. 90-335 of the 1990 Public Acts, which repealed § l-20d. At the same time, however, the legislature added the following exemption from disclosure for records of law enforcement agencies: “uncorroborated allegations subject to destruction pursuant to Section l-20c.” This exemption is now codified at § 1-19 (b) (3) (G). The purpose of this amendment was to provide protection to those individuals who are subject to uncorroborated allegations.

With this background, we now consider the Courant’s specific arguments regarding whether the trial court properly concluded that the report was exempt from disclosure.

A

The Courant argues that the report was not subject to destruction pursuant to § l-20c. According to the Courant, § 1-19 (b) (3) (G) was intended to exempt only those records where the effort had been made and police had found that they could not corroborate the existence of criminal activity. All other documents are records in which criminal activity might be corroborated and these were to be open for public inspection and copying. The Courant argues that the ability of the public to see these documents during this period serves an important public safety purpose. The Courant contends that by allowing the public to know that accusations have been made, the statute increases the possibility that during the period of investigation guaranteed by § l-20c witnesses who can and will corroborate the allegations may come forward, thus removing the documents from the destruction provisions of § 1-20c and therefore from the exemption provisions of § 1-19 (b) (3) (G). Finally, the Courant argues that the effect of interpreting subparagraph (G) to seal these files from the moment of their creation is to frustrate any attempt to corroborate the allegations contained in them and to ensure that after fifteen months the police will be unable to corroborate, thus ensuring their destruction under § l-20c. We disagree with the Courant’s interpretation.

We first note that “[t]o determine the intent of the legislature, we first consider whether the statutory language yields a plain and unambiguous resolution. . . . If the words are clear and unambiguous, it is assumed that [they] express the intention of the legislature. . . . The words of a statute must be interpreted according to their ordinary meaning unless their context dictates otheiwise. ...” (Internal quotation marks omitted.) State v. Theriault, 38 Conn. App. 815, 828, 663 A.2d 423, cert. denied, 235 Conn. 922, 666 A.2d 1188 (1995). We further note that “[i]n construing statutes, we must use common sense and must not interpret statutes to yield bizarre and irrational results.” Cross v. Hudon, 42 Conn. App. 59, 66, 677 A.2d 1385, cert. denied, 239 Conn. 932, 683 A.2d 400 (1996).

We conclude that pursuant to the clear and unambiguous language of §§ 1-19 (b) (3) (G) and l-20c, records of uncorroborated allegations are not to be disclosed during the fifteen month period in which corroboration is sought. Furthermore, if the report was made public during the initial fifteen month period, then, as noted by the trial court, “there would be no purpose to either the corroboration effort, which must begin on the one year- anniversary of the creation of the record, or to the destruction of the record if uncorroborated, for the content would have already been made public.” We agree with the trial court that it would be an “illogical interpretation” to provide for the destruction of uncorroborated records after they had already been made public. In addition, if we follow to its logical conclusion the Courant’s position that a report is open for inspection and copying any time before it is determined that it cannot be corroborated, then regardless of how unfounded a report may be, it would not be exempt if one could be fast enough to file a request for release before it was possible to conduct an investigation.

We further note that even if we were to venture beyond the words of the statute, the interpretation urged by the Courant—that the information, even if uncorroborated, should be disclosed during the initial fifteen month period—is not supported by the legislative history of P.A. 88-227. Rather, the legislative history supports the interpretation urged by the plaintiffs, namely, that the information should not be disclosed during the fifteen month period unless and until it is corroborated. If the report is corroborated any time within the fifteen month period, it can never fall within the purview of § l-20c.

B

The Courant argues that § 1-19 (b) (3) (G) is unavailable to custodians who have failed to make a good faith attempt to corroborate. According to the Courant, the word “cannot,” as used in § l-20c, denotes impossibility, and a finding of impossibility implies a good faith attempt. The Courant contends that in the present case, the attempted corroboration consisted of only a cursory and momentary inquiry, begun and concluded on the day of the incident, and that while such an investigation might support a finding of “has not yet corroborated,” it cannot support a finding of “cannot be corroborated.”

Section l-20c provides that “records of law enforcement agencies consisting of uncorroborated allegations . . . shall be reviewed by the law enforcement agency one year after the creation of such records.” The statute further provides that the law enforcement agency shall destroy such records within ninety days of the commencement of the review if they cannot be corroborated.

If we accept the Courant’s argument, the commission would then be required not only to determine if the allegations had been corroborated but also to review the actions of the law enforcement agency to see if the agency, in the opinion of the commission, has conducted a sufficient investigation in order to obtain such corroboration. Nowhere do we find the authority for this proposition. We decline to interpret the language of § l-20c to require such a finding by the commission that there was a good faith attempt to corroborate. We agree with the plaintiffs that the purpose of the act was to ensure openness in government and access by the public, not to establish the actions law enforcement agencies must take when acting upon a complaint or otherwise to impose standards for police investigations.

C

The Courant next argues that § 1-19 (b) (3) (G) is unavailable to custodians who have failed to determine that disclosure would not be in the public interest. We disagree.

Section 1-19 (b) (3) provides an exemption from the mandatory disclosure of police records “if the disclosure of said records would not be in the public interest because it would result in the disclosure of . . . (G) uncorroborated allegations subject to destruction pursuant to section l-20c . . . .” The Courant argues that, by including the phrase “not in the public interest because,” the legislature clearly manifested an intent that the custodian of records make an assessment as to the effect on the public interest of disclosing uncorroborated information. The Courant posits that only if the custodian has made the assessment that it would not be in the public interest to disclose the records is there justification for the refusal to make the disclosure.

In Chairman v. Freedom of Information Commission, 217 Conn. 193, 585 A.2d 96 (1991), the issue was whether a personnel evaluation of a state’s attorney was exempt from the disclosure requirements of the act by reason of § 1-19 (b) (2), which provides an exemption from mandatory disclosure for “personnel or medical files and similar files the disclosure of which would constitute an invasion of personal privacy . . . .” The Supreme Court in Chairman stated t hat; “[t]he [commission], in determining if an invasion of privacy would result from disclosure of the personnel evaluation, applied a balancing test. Section 1-19 (b) (2) does not require such a balancing test. We have held that if the ‘statutory language ... is clear and unambiguous . . . courts cannot, by construction, read into such statutes provisions which are not clearly stated.’ Frazier v. Manson, 176 Conn. 638, 642, 410 A.2d 475 (1979). We note that an exemption under § 1-19 (b) (1), which excludes disclosure of ‘preliminary drafts or notes provided the public agency has determined that the public interest in withholding such documents clearly outweighs the public interest in disclosure,’ expressly requires a balancing test in determining when information may be disclosed. The fact that the legislature specifically declined to include a balancing requirement in § 1-19 (b) (2) is strong evidence that a balancing test is inappropriate when applying § 1-19 (b) (2).” Chairman v. Freedom of Information Commission, supra, 200. Similarly, § 1-19 (b) (3) (G) contains no such express requirement of a balancing test. We hold therefore that the legislature has not required a balancing test prior to a determination that a document is exempt from disclosure pursuant to § 1-19 (b) (3) (G).

We also refer to the other subparagraphs of § 1-19 (b) (3) to support our conclusion that the legislature has already made the determination that uncorroborated allegations subject to destruction pursuant to § l-20c should not be disclosed. Section 1-19 (b) (3) prefaces subparagraphs (A) through (G) with “if the disclosure of said records would not be in the public interest because it would result in the disclosure of . . . .” Those subparagraphs include records identifying informants not otherwise known, signed statements of witnesses, information to be used in a prospective law enforcement action if prejudicial to such action, investigatory techniques, arrest records of a juvenile, and the name and address of the victim of a sexual assault. One can hardly argue that the legislature intended that a balancing test be applied before a law enforcement agency declines to release the name and address of a victim of a sexual assault or information to be used in a law enforcement action if prejudicial to such action. We conclude that in these provisions, as in § 1-19 (b) (3) (G), the legislature has determined that disclosure would not be in the public interest and that no balancing is required.

D

The Courant argues that records are not “subject to” destruction pursuant to § l-20c until, after investigation, it has been determined that the allegations in them “cannot” be corroborated.

As previously indicated, records under § 1-19 (b) (3) (G) are not exempt from mandatory disclosure unless they are “subject to destruction pursuant to section 1-20c.” In its brief, the Courant seeks to have us conclude that this language means that “the records sought to be exempted have already been subjected to that degree of good faith investigation which is the condition precedent to a finding under § l-20c that the allegations in a record ‘cannot’ be corroborated, and therefore it must be destroyed.” (Emphasis in original.) Specifically, the Courant contends in its brief that “[i]n the specific context in which the phrase ‘subject to destruction’ is used in § 1-19 (b) (3) (G) to describe public records, the only rational reading of the phrase is that the records have already been determined under § l-20c to contain allegations that ‘cannot’ be corroborated, and therefore must be destroyed on or after their first anniversary, and therefore ought not to be disclosed.” (Emphasis in original.) We disagree with this interpretation.

As correctly noted by the trial court, “§§ 1-19 (b) (3) (G) and l-20c, interpreted reasonably together, provide an exemption from disclosure for uncorroborated allegations during the fifteen months between the creation of the record and completion of the effort to review and corroborate.” If, during or at the end of the fifteen month period, the allegations are corroborated, the records would be disclosed pursuant to General Statutes § 1-19 (a). As the trial court concluded, “[i]f, by the end of the fifteen month period, the allegations ‘cannot be corroborated’ in the wording of § l-20c, the record then must be destroyed. Section 1-19 (b) (3) (G) provides an exemption for records ‘subject to’ destruction. The term ‘subject to’ indicates a future possibility of destruction, thus exempting the records during the fifteen month period.”

We agree with the conclusion of the trial court that records are “subject to destruction” during the fifteen month period between the creation of the record and either corroboration or destruction of the record.

Ill

The Courant’s final argument involves an alleged ex parte communication between Courant reporter Keating and Avery, the commissioner to whom the matter had been assigned. The Courant claims that the trial court improperly found that the interview between Keating and Avery was an ex parte communication in violation of § 4-181. The trial court, however, went on to find that the commission had sustained its burden of proving that no prejudice resulted to either Bona or Rowland as a result of this ex parte communication and, as a result, the court did not grant them any relief on this basis.

“ [A] requisite element of appealability is that the party claiming error in the decision of the trial court be aggrieved . . . for if a party attempting to appeal can by no possibility suffer injury by the judgment, he should not be permitted to appeal. ...” (Citations omitted; internal quotation marks omitted.) Local 1303 & Local 1378 v. Freedom of Information Commission, 191 Conn. 173, 175-76, 463 A.2d 613 (1983).

In light of the finding of the trial court that no prejudice resulted from this ex parte communication and the fact that the court did not grant the plaintiffs any relief on that basis, we conclude that the Courant suffered no injury and, therefore, this issue is not appealable.

The judgments of the trial court are affirmed.

In this opinion the other judges concurred.

       See footnote 4.

       General Statutes § 1-19 (b) provides in relevant part: “Nothing in sections 1-15, l-18a, 1-19 to l-19b, inclusive, and 1-21 to l-21k, inclusive, shall be construed to require disclosure of . . . (3) records of law enforcement agencies not otherwise available to the public which records were compiled in connection with the detection or investigation of crime, if the disclosure of said records would not be in the public interest because it would result in the disclosure of . . . (G) uncorroborated allegations subject to destruction pursuant to section l-20e . . . .”

       General Statutes § l-20c provides: “Except for records the retention of which is otherwise controlled by law or regulation, records of law enforcement agencies consisting of uncorroborated allegations that an individual has engaged in criminal activity shall be reviewed by the law enforcement agency one year after the creation of such records. If the existence of the alleged criminal activity cannot be corroborated within ninety days of the commencement of such review, the law enforcement agency shall destroy such records.”

       The hearing thus proceeded only in FIC 94-252, the denial of the September 1 request. Counsel for Rowland and Bona conceded at that hearing that there was no incident report involving Rowland for April 14, 15 or 16, the dates specified in the September 1 request. The outcome of that commission case is not at issue in the present appeal.

       Unloss otherwise noted, the defendants Baggott, Courant reporter David Fink, who filed the appeal in FIC 94-252, and the Courant will collectively be referred to as the Courant.

       “A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Durkin v. Durkin, 43 Conn. App. 659, 662, 689 A.2d 344 (1996).

       The trial court held that the commission’s finding that it could not ascertain any allegations of criminal activity in the report was clearly erroneous. The trial court stated in part that “[information previously disclosed by Bona established that Ms. Rowland made a complaint to Middlebury police about an incident at her home on April 10, 1994, which was later termed by the police ‘family offenses, nonviolent’ and ‘verbal between husband and wife.’
      The report reveals that two phone calls were placed to Middlebury police, who went to Ms. Rowland’s home and interviewed her with respect to what had occurred. The allegations made to police as set forth in the report constitute ‘uncorroborated allegations that an individual has engaged in criminal activity’ within the meaning of General Statutes § l-20c. Black’s Law Dictionary, 6th Ed., defines ‘crime’ as ‘a positive or negative act in violation of penal law.’ Ms. Rowland described for the police what had occurred at her home prior to the arrival of the police. The report sets forth her description of what happened. The events as she described them constitute a violation of the Connecticut penal code, General Statutes § 53a-1 et seq., in at least one respect. The criminal offense in question is cited on the third page of the report by reference to a specific section of the penal code. The offense which is specified is a class C misdemeanor. The report also reveals an unsuccessful attempt by Middlebury police to substantiate the allegations. It is difficult to understand how the commission could overlook this citation of a criminal offense.”

       Public Act 88-227 was entitled “An Act Concerning the Disclosure of Information by the Statewide Organized Crime Investigative Task Force.” Contrary to the argument made in the Courant’s brief, however, there is nothing in P.A. 88-227 that suggests that § l-20c was to apply only to allegations of criminal activity made by the police rather than allegations made to the police.

       General Statutes (Rev. to 1989) § l-20d provides in relevant part: “Copies of records of law enforcement agencies disclosed pursuant to this chapter or otherwise may first be altered by removal of: (1) Any information which would contribute to the identification of an informant; (2) any uncorroborated information which, if publicly known, would significantly damage the reputation of a person not convicted of a crime related to such uncorroborated information . . . and (3) any information relevant to a present or future law enforcement action.” Section l-20d was repealed by Public Acts 1990, No. 90-335.

       Then Senator Richard Blumenthal, speaking in favor of Public Acts, No. 90-335, stated: “What this bill does or would do is essentially to provide for an exemption from disclosure under the FOI, the Freedom of Information Act for records for uncorroborated accusations against individuals that are subject to destruction under Section l-20c of the Connecticut General Statutes. Those are the kinds of records which after a year must be reviewed by a law enforcement agency and destroyed within 90 days if there is no evidence to corroborate the accusations or allegations of an individual.
      “The purpose really is to provide some protection for individuals who may be the subject of these kinds of allegations and who deserve some protection against disclosure under the FOIA.” 33 S. Proc., Pt. 5,1990 Sess., pp. 1546-47.

       The legislative history contains the following colloquy:
      “Representative [Linda M.] Emmons: Representative Levin, I would just like to ask you a few questions, to try to find the order in which this is going to happen. Section 2 pretty much says that the records and information shall be reviewed by the agency one year after the creation of such records, and if the activity cannot be corroborated with the 90 days of the commencement of the view, they shall destroy them. And during that period, which is one year and 90 days, are the records open under Chapter 3, or are they closed?
      “Speaker [Irving J.] Stolberg: Representative Levin.
      “Representative [Jay B.] Levin: Through you, Mr. Speaker, they would be closed.
      “Speaker Stolberg: Representative Emmons.
      “Representative Emmons: Thank you, Mr. Speaker. I think it would have been clearer if it had said that.” 31 H.R. Proc., Pt. 12,1988 Sess., pp. 4010-4011.

       The trial court, in its decision, stated that “[t]he report also reveals an unsuccessful effort by Middlebury police to substantiate the allegations.” The trial court further stated that “[t]he report was written and signed on April 11, 1994, the day after Middlebury police were summoned to Ms. Rowland’s home. The report shows that Middlebury police as of April 11 had made efforts to corroborate the allegations of criminal activity, but had not yet been successful.”

       According to the Courant, although the police chief generally makes 1 he del ermination regarding whether a good faith attempt to corroborate was made, ultimately the decision will be that of the commission if a complaint is made under the act. The transcript of the oral argument before this court reveals the following:
      “The Court: Do you find in that, statute a duty upon the police to attempt to corroborate every complaint which is made to the department?
      “Mr. Elliot: I find in that statute a duty on the police to make a good faith attempt to corroborate because, unless they do, under the plain meaning of the word ‘cannot’ be corroborated, ‘cannot’ is the word the legislature used. Not might not, or, hasn’t been, but ‘cannot.’ No one can malm the finding under l-20e that the record cannot be corroborated. And there is ample case law, and I have cited in my brief, where ‘cannot’ implies a good faith attempt to try.
      “The Court: Who would determine whether or not a good faith attempt was made? How is that determination to be made? And by whom?
      “Mr. Elliot: If there is an FOI complaint, ultimately, the freedom of information commission. But the police chief makes the determination. And in 9999 cases out of 10,000, no one knows about it.”

       It is important to note what is before us and what is not before us. Although, in general, law enforcement agencies have a duty to investigate complaints in a proper and timely manner, the issue of what constitutes a proper and timely investigation is not before us, nor should anything contained in this opinion be interpreted to reflect otherwise on this issue. What is before us, as stated previously, is whether §§ 1-19 (b) (3) (G) and 1-20 require the commission to review actions of law enforcement agencies to determine whether the agency has conducted a sufficient investigation. "We must construe the act as we find it, without reference to whether we think it would have been or could be improved by the inclusion of other provisions. . . .Where the statutory language is clearly expressed, as here, courts must apply the legislative enactment according to the plain terms and cannot read into the terms of a statute something which manifestly is not there in order to reach what the court thinks would be a just result.” (Citations omitted; internal quotation marks omitted.) Johnson v. Manson, 196 Conn. 309, 315, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787 (1986). “[I]t is not the province of a court to supply what the legislature chose to omit. The legislature is supreme in the area of legislation, and courts must apply statutory enactments according to their plain terms.” (Internal quotation marks omitted.) Glastonbury Co. v. Gillies, 209 Conn. 175, 180-81, 550 A.2d 8 (1988).

       In the present case, the trial court noted that it was undisputed that Bona had made no specific finding concerning the public interest when he determined that the report was exempt from disclosure under § 1-19 (b) (3) (G). The trial court ruled, however, that no such finding was required.

       Subparagraphs (A) through (F) of § 1-19 (b) (3) provide exemptions for “(A) the identity of informants not otherwise known or the identity of witnesses not otherwise known whose safety would be endangered or who would be subject to threat or intimidation if their identity was made known, (B) signed statements of witnesses, (C) information to be used in a prospective law enforcement action if prejudicial to such action, (D) investigatory techniques not otherwise known to the general public, (E) arrest records of a juvenile, which shall include any investigatory files, concerning the arrest of such juvenile, compiled for law enforcement purposes, (F) the name and address of the victim of a sexual assault under section 53a-70, 53a-70a, 53a-71, 53a-72a, 53a-72b or 53a-73a, or injury or risk of injury, or impairing of morals under section 53-21, or of an attempt thereof . . . .”

       General Statutes § 4-181 (a) provides: “Unless required for the disposition of ex parte matters authorized by law, no hearing officer or member of an agency who, in a contested case, is to render a final decision or to make a proposed final decision shall communicate, directly or indirectly, in connection with any issue of fact, with any person or party, or, in connection with any issue of law, with any party or the party’s representative, without notice and opportunity for all parties to participate.”


author: DALY, J.

text:
    THOMAS BEVERLY v. STATE OF CONNECTICUT ET AL.
    (15901)
    O’Connell, Poti and Daly, Js.

      Argued January 23
    officially released April 8, 1997

      Henry D. Marcus, for the appellant (plaintiff).

      Paul M. Pieszak, for the appellees (defendants).
   DALY, J.

The plaintiff appeals from the judgment rendered on the jury’s verdict following a hearing in damages, claiming that the trial court improperly (1) granted the defendants’ motion in limine to exclude certain of the plaintiffs medical records, (2) denied his motion to set aside the verdict and to order an additur or a new trial, (3) denied his motion for a special finding and (4) failed to give a Secondino charge.

The following facts are relevant to this appeal. On October 12, 1989, the plaintiff in this personal injury action was a passenger in a van owned by the defendant state and operated by the defendant James Todd. The department of correction van was being used to transport prisoners, including the plaintiff. As the van proceeded south on Main Street in Hartford, it collided with the rear of a vehicle stopped for a red traffic signal at the intersection of Main and Gold Streets, allegedly causing injuries to the plaintiff. The plaintiff sought treatment for his injuries at various times from medical personnel of the department of correction, to which he was committed for a substantial portion of the relevant period of time, and from two private physicians, Edward A. Powers and Stephen C. Shifreen. Powers discharged the plaintiff as fully recovered. Shifreen subsequently found that the plaintiff continued to show symptoms.

The defendants served interrogatories and requests for production on the plaintiff on February 26,1991. The plaintiff responded on December 20, 1991, providing medical records of the department of correction from October 19 through November 29, 1989, as well as an authorization for the release of medical records relating to the plaintiff. The plaintiff subsequently executed additional authorization on a form apparently provided to the defendants by the department of correction.

The state conceded liability and the matter was heard by a jury as to damages only. At the hearing in damages, the plaintiff sought to introduce records subsequent to November 29, 1989. The defendants filed a motion in limine seeking the exclusion of those records, claiming that they should not be admitted because the plaintiff had failed to meet his continuing duty to disclose with respect to those records pursuant to Practice Book § 232. The trial court granted the defendants’ motion in limine.

The jury granted the plaintiff $5500, $500 in economic damages and $5000 in noneconomic damages. The plaintiff moved to set aside the verdict, for an additur and for a new trial on damages only. The plaintiffs motion was denied by the trial court. This appeal ensued.

I

The plaintiff challenges the granting of the motion in limine that precluded him from introducing any medical records of the department of correction subsequent to November 29, 1989. The defendants argue that the motion was properly granted pursuant to Practice Book § 231 because the plaintiff failed to satisfy his duty to disclose those records pursuant to Practice Book § 232.

Section 232 provides that “[i]f, subsequent to compliance with any request or order for discovery and prior to or during trial, a party discovers additional or new material or information previously requested and ordered subject to discovery or inspection ... he shall promptly . . . file and serve in accordance with Sec. 120 a supplemental or corrected compliance.” Section 231 provides that “[i]f any party has failed ... to comply with the provisions of Sec. 232 . . . the court may, on motion, make such order as the ends of justice require. Such orders may include the following . . . (d) The entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence . . . .”

We need not determine whether the quoted rules of practice apply in this case. “It is a fundamental rule of appellate review of evidentiary rulings that if error is not of constitutional dimensions, an appellant has the burden of establishing that there has been an erroneous ruling which wasprobably harmful to him.” (Emphasis added; internal quotation marks omitted.) Sadloski v. Manchester, 235 Conn. 637, 645, 668 A.2d 1314 (1995); 1 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 60 (i), p. 385. We conclude that the plaintiff has failed to meet the burden of demonstrating that the exclusion of the records was probably harmful.

The plaintiff argues that Powers’ deposition testimony, in which he testified that the plaintiff was fully recovered, might have been refuted by the excluded records. He claims that those records contained numerous findings, made subsequent to Powers’ discharge of the plaintiff as recovered, of symptoms traceable to the vehicular accident as well as to an incident in which a jail gate was accidentally closed on him. He concedes, however, that there was nothing in the excluded records regarding permanency to which the plaintiffs own expert had not already testified and that, contrary to Powers’ testimony that the plaintiff was cured, Shifreen testified that he continued to have problems traceable to the accident. He argues generally, however, that the excluded records could have refuted Powers’ testimony, and he claims to have been harmed by the fact that “all they have is contradictory testimony.” The plaintiff further concedes that, having been convicted of multiple felonies, he would have had low credibility with the jury. His contention appears to be that the result might have been different had the excluded evidence been admitted to corroborate Shifreen’s and the plaintiff’s testimony. The plaintiff has failed to cite any material in the excluded records that would have discredited Powers’ testimony, and we conclude that the excluded records would have been cumulative at best. Moreover, the plaintiff has failed to meet his burden of demonstrating—in fact has not even argued—that the result would probably have been different had the excluded records been admitted. He, therefore, cannot prevail on this claim.

II

The plaintiff next claims that the trial court improperly denied his motion to set aside, for an additur and for a new trial. The basis of this claim apparently is an assertion that the award of $5500 is inadequate as a matter of law because his hospital bills for treatment of injuries allegedly sustained in the accident amounted to $364.36 and his physicians’ bills totaled $4533.50.

“We accord great deference to a jury’s award of damages. Litigants have a constitutional right to have factual issues determined by the jury. This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded. . . . This right is one obviously immovable limitation on the legal discretion of the court to set aside a verdict.... The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury. Mather v. Griffin Hospital, 207 Conn. 125, 138, 540 A.2d 666 (1988). Similarly, [t]he credibility of witnesses and the weight to be accorded to their testimony lie within the province of the jury. Desmarais v. Pinto, 147 Conn. 109, 110, 157 A.2d 596 (1960). 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. Campbell v. Gould, 194 Conn. 35, 41, 478 A.2d 596 (1984). . . . Skrzypiec v. Noonan, 228 Conn. 1, 10, 633 A.2d 716 (1993).

“The trial court’s refusal to set aside the verdict or to order an additur is entitled to great weight and every reasonable presumption should be given in favor of its correctness. In reviewing the action of the trial court in denying the motions for additur and to set aside the verdict, our primary concern is to determine whether the court abused its discretion and we decide only whether, on the evidence presented, the jury could fairly reach the verdict they did. The trial court’s decision is significant because the trial judge has had the same opportunity as the jury to view the witnesses, to assess their credibility and to determine the weight that should be given to their evidence. Moreover, the trial judge can gauge the tenor of the trial, as we, on the written record, cannot, and can detect those factors, if any, that could improperly have influenced the jury. . . . The only practical test to apply to a verdict is whether the award of damages falls somewhere within the necessarily uncertain limits of fair and reasonable compensation in the particular case, or whether the verdict so shocks the sense of justice as to compel the conclusion that the jury were influenced by partiality, mistake or corruption.” (Citations omitted; internal quotation marks omitted.) Childs v. Bainer, 235 Conn. 107, 112—14, 663 A.2d 398 (1995).

In the present case, the nature and extent of the plaintiffs injuries were hotly contested. The plaintiffs treating physicians, Shifreen and Powers, disagreed as to the existence of any permanent disability attributable to this accident. Powers found no permanency, although he was aware of subsequent incidents befalling the plaintiff, including that he had fallen in the shower, had been hit over the head and had had a jail gate close on him. We conclude that the jury could have reasonably concluded that the plaintiff was entitled to only $5500 in damages.

“ ‘The existence of conflicting evidence limits the court’s authority to overturn a jury verdict. The juiy is entrusted with the choice of which evidence is more credible and what effect it is to be given. Ford v. Blue Cross & Blue Shield of Connecticut, Inc., 216 Conn. 40, 58, 578 A.2d 1054 (1990).’ Skrzypiec v. Noonan, supra, 228 Conn. 11. ‘From the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than we can, on the printed record, what factors, if any, could have improperly influenced the jury.’ Birgel v. Heintz, 163 Conn. 23, 26, 301 A.2d 249 (1972).” Childs v. Bainer, supra, 235 Conn. 116-17. There was ample evidence in the record tending to support the jury’s verdict, and the verdict, therefore, did not shock the sense of justice.

“We have previously determined that a juiy may award a plaintiff less than the claimed special damages. Rickert v. Fraser, 152 Conn. 678, 211 A.2d 702 (1965). In Rickert, the jury was confronted with conflicting evidence concerning the plaintiffs injuries. The plaintiff had claimed $755.27 in medical expenses, $2719.20 in lost wages and $46,525.53 for pain and suffering. The jury awarded the plaintiff only $2500 in damages, and [our Supreme Court] upheld the trial court’s refusal to set aside the verdict because [a]s to the matter of [the plaintiffs] injuries and the pain and suffering resulting therefrom . . . the medical testimony and opinions were conflicting to such an extent that the jury could have refused to credit the plaintiffs claims. Id., 680-81.” (Internal quotation marks omitted.) Childs v. Bainer, supra, 235 Conn. 119. We conclude that, in the present case, the medical testimony and opinions were conflicting to such an extent that the jury could have refused to credit the plaintiffs claims.

We affirm the trial court’s refusal to set aside the verdict and to order an additur.

Ill

The plaintiff also claims that the trial court improperly denied his motion for a finding of vexatious defense pursuant to General Statutes § 52-226a. The plaintiff maintains that the state’s admission of negligence shortly before the hearing in damages violated that statute.

Section 52-226a provides in pertinent part: “In any civil action tried to a jury, after the return of a verdict and before judgment has been rendered thereon . . . the prevailing party may file a written motion requesting the court to make a special finding to be incorporated in the judgment or made a part of the record, as the case may be, that the action or a defense to the action was without merit and not brought or asserted in good faith. ...”

“[W]e have declined to uphold awards under the bad-faith exception absent both clear evidence that the chailenged actions are entirely without color and [are taken] for reasons of harassment or delay or for other improper purposes . . . .” (Internal quotation marks omitted.) Fattibene v. Kealey, 18 Conn. App. 344, 360-61, 558 A.2d 677 (1989). Furthermore, it is the burden of the appellant to present us with a proper record on the basis of which we can determine the appeal. Practice Book §§ 4009, 4061; State v. Fullwood, 194 Conn. 573, 581, 484 A.2d 435 (1984); 1 B. Holden & J. Daly, supra, p. 386.

The record before us does not indicate that any evidence was presented to the trial court to demonstrate that the defense raised by the defendants prior to trial was “entirely without color and [raised] for reasons of harassment or delay or for other improper purposes,” nor does it indicate that any motion for articulation was filed pursuant to Practice Book § 4051.

We conclude that “[w]ithout the necessary factual and legal conclusions furnished by the trial court, either on its own or in response to a proper motion for articulation, any decision made by us respecting this claim would be entirely speculative.” (Internal quotation marks omitted.) Cohen v. Cohen, 41 Conn. App. 163, 169, 674 A.2d 869 (1996).

We affirm the trial court’s denial of the plaintiffs motion for a finding of vexatious defense.

IV

Finally, the plaintiff claims in his brief that the trial court improperly failed to instruct the jury that it could draw an adverse inference from the failure of the defendants to introduce records of the department of correction or to call as witnesses any of the medical personnel who allegedly examined him during his periods of incarceration.

“[Our Supreme Court] first articulated the conditions under which such an instruction is appropriate in Secondino v. New Haven Gas Co., [supra, 147 Conn. 672], The failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party’s cause. . . . There are two requirements for the operation of the rule: The witness must be available, and he must be a witness whom the party would naturally produce. ... A witness who would naturally be produced by a party is one who is known to that party and who, by reason of his relationship to that party or to the issues, or both, could reasonably be expected to have peculiar or superior information material to the case which, if favorable, the party would produce. . . . Id., 675; see State v. Grant, 221 Conn. 93, 105-106, 602 A.2d 581 (1992); State v. Greene, 209 Conn. 458, 469-70, 551 A.2d 1231 (1988); Shelnitz v. Greenberg, 200 Conn. 58, 73, 509 A.2d 1023 (1986); State v. Brown, 169 Conn. 692, 705, 364 A.2d 186 (1975); Bell v. Bihary, 168 Conn. 269, 271, 362 A.2d 963 (1975).

“A party, however, is not entitled to receive such an instruction in all circumstances. To have the jury charged on the rule, the party claiming the benefit of it must show that he is entitled to it. . . . [T]he trial court must make a preliminary determination that there is evidence in the record to support these elements.” (Citations omitted; internal quotation marks omitted.) Hines v. St. Vincent’s Medical Center, 232 Conn. 632, 637-38, 657 A.2d 578 (1995).

“A possible witness whose testimony is for any reason comparatively unimportant, cumulative or inferior to what has been offered should be dispensed with on the general ground of expense and inconvenience, without anticipation that an inference may be invoked.” (Internal quotation marks omitted.) State v. Alfonso, 195 Conn. 624, 632, 490 A.2d 75 (1985); State v. Miles, 195 Conn. 552, 557, 489 A.2d 373 (1985).

Our review of the record and transcripts indicates that the testimony and medical records at issue would not have constituted peculiar or superior information material to the case, and we have concluded in part I of this opinion that the information therein would have been cumulative at best. We conclude that the plaintiff has not demonstrated that he was entitled to the requested charge.

The judgment is affirmed.

In this opinion the other judges concurred.

       See Secondino v. New Haven Gas Co., 147 Conn. 672, 165 A.2d 598 (1960).


author: FOTI, J.

text:
    SARA LIPWICH v. EMIL H. FRANKEL, COMMISSIONER OF TRANSPORTATION
    (15452)
    Foti, Heiman and Schaller, Js.
    Argued January 14
    officially released April 8, 1997

      Steven R. Rolnick, for the appellant (plaintiff.

      Andrew S. Turret, for the appellee (defendant).
   FOTI, J.

The plaintiff appeals from the judgment rendered by the trial court granting the defendant’s motion for summary judgment. The plaintiff claims that the trial court improperly (1) rendered summary judgment by incorrectly interpreting applicable statutes and (2) refused the plaintiff permission to amend her complaint. The plaintiff also alleges that the doctrine of sovereign or governmental immunity should be abolished for negligence claims against the state. We affirm the judgment of the trial court.

The plaintiff commenced this action against the defendant commissioner of transportation seeking to recover for personal injuries claimed to have been suffered as a result of a fall on October 8, 1992, on a sidewalk adjacent to the building occupied by the department of motor vehicles (DMV) on State Street in Hamden.

The defendant filed a motion for summary judgment claiming that (1) the department of transportation (DOT) had no statutory duty to maintain or repair the area of the alleged fall and (2) the plaintiff had failed to allege in her complaint that a state agency requested the DOT to maintain the subject sidewalk so as to invoke the provisions of General Statutes § lSb-30. The trial court first addressed the second ground the defendant relied on in support of the motion for summary judgment and concluded that an issue of fact existed as to whether the DMV requested the DOT to maintain the area in question, thus, precluding the granting of summary judgment on that basis.* The trial court concluded, however, that the defendant was entitled to summary judgment on the first ground because, as a matter of law, the defendant had no statutory duty to maintain the area where the plaintiff fell. The trial court ruled that, because the action was brought pursuant to General Statutes § 13a-144, the plaintiffs burden was to establish that the defendant had a statutory duty to maintain the area where she fell. The court also determined, from the documents submitted, that the sidewalk where the injury allegedly occurred was not part of the state highway as defined by General Statutes § 13a-14, and concluded that, therefore, any duty on the part of the defendant must arise, if at all, by virtue of § 13b-30. The trial court further determined, as a matter of law, that the term “roads and drives” as used in § 13b-30 does not impose responsibility on the defendant, pursuant to § 13a-144, to maintain sidewalks.

I

The plaintiff claims that § 13b-30 should be read to include sidewalks. She argues that “[t]he trial court’s reading of § 13b-30 confuses the [defendant’s] general duty of maintenance and repair as established by statutes like [General Statutes] § 13a-91, with a failure to comply with a specific request, pursuant to § 13b-30, from another agency to maintain or improve state owned property under the control of that state agency.” She claims further that “[t]he responsibility of the [defendant] under § 13b-30 is based upon the request of another state agency with regard to a specific location on state owned property, not the label which is put on that location.” We conclude that in construing § 13b-30, sidewalk is not included within the term “roads and drives.”

“[W]hen it is shown that the commissioner has a legal duty to repair or maintain such roads and drives pursuant to § 13b-30, § 13a-144 imposes liability on the commissioner for injuries sustained on those roads and drives as a result of the commissioner’s negligence in performing his or her duty.” Amore v. Frankel, 228 Conn. 358, 365, 636 A.2d 786 (1994). Section 13b-30 does not impose a duty on the defendant regarding sidewalks. We must strictly construe any statute in derogation of the doctrine of sovereign immunity. See Herzig v. Horrigan, 34 Conn. App. 816, 822, 644 A.2d 360 (1994). “In the specific context of statutes in derogation of sovereign immunity, [w]here there is any doubt about [the] meaning or intent [of the statute, it is] given the effect which makes the least rather than the most change in sovereign immunity. . . . [T]he state’s sovereign right not to be sued without its consent is not to be diminished by statute, unless a clear intention to that effect on the part of the legislature is disclosed, by the use of express terms . . . .” (Internal quotation marks omitted.) Hunte v. Blumenthal, 238 Conn. 146, 168, 680 A.2d 1231 (1996) (Callahan, J., dissenting).

The duty under § 13b-30 is to maintain roads and drives. The legislature saw fit not to include sidewalks, although it did include sidewalks in other sections of the statute. We conclude, therefore, that the trial court properly rendered summaiy judgment.

II

The plaintiff next argues that the trial court improperly denied her request for permission to amend her complaint to add a count of negligence against the state. The plaintiff claims that she falls within the scope of the “foreseeable class” exception to the doctrine of governmental immunity as set forth by our Supreme Court in Burns v. Board of Education, 228 Conn. 640, 644, 638 A.2d 1 (1994). We are unpersuaded.

Additional facts are needed for analysis of this claim. The only defendant in this action is the commissioner of transportation. The plaintiff sought to amend her complaint to add a claim against the state for negligence, but the trial court sustained the defendant’s objection to this request because “[t]he state of Connecticut is not a party.” The record does not disclose that the plaintiff sought and obtained permission from the claims commissioner to file a claim against the state as required by General Statutes § 4-160. We conclude, therefore, that the trial court properly denied the plaintiffs request for permission to amend her complaint.

Ill

The plaintiff argues that sovereign immunity should be abolished in Connecticut. She cites other states that have abolished governmental immunity for certain claims through legislative and judicial exceptions.

Our Supreme Court has refused to abrogate the doctrine of governmental immunity by judicial fiat. Fidelity Bank v. State, 166 Conn. 251, 255, 348 A.2d 633 (1974). “The source of sovereign power in the state of Connecticut is the constitution, and it is recognized that a sovereign is immune from suit ‘on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.’ [Horton v. Meskill, 172 Conn. 615, 623, 376 A.2d 359 (1977)] . . . .” (Citations omitted.) Herzig v. Horrigan, supra, 34 Conn. App. 818.

“The question whether the principles of governmental immunity from suit and liability can best serve this and succeeding generations has become, by force of the long and firm establishment of these principles as precedent, a matter for legislative, not judicial, determination.” (Internal quotation marks omitted.) Fidelity Bank v. State, supra, 166 Conn. 255. The state legislature possesses the authority to abrogate any governmental immunity by statute that the common law gives to the state and municipalities. White v. Burns, 213 Conn. 307, 312, 567 A.2d 1195 (1990). We, therefore, will not intrude upon the role of the legislature.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 13b-30 provides in pertinent part: “Maintenance of roads on state property. From funds appropriated to the Department of Transportation for general operations, the Commissioner of Transportation shall, on request of the state agency having jurisdiction over the property involved, maintain and improve the roads and drives on the grounds of state institutions . . . and other state agencies . . . .”

       On appeal, the defendant, as part of his counterstatement of the issues and not as a cross appeal or an alternate reason for affirming the trial court, also claims that the trial court improperly “fail[ed] to grant summary judgment for [the] defendant on the ground that the court lacks subject matter jurisdiction since the complaint fails to allege that the Department of Motor Vehicles requested the Department of Transportation to maintain the sidewalk where the plaintiff alleges to have fallen.”

       GeneralStatut.es § 13a-144 provides in pertinent part: “Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the Superior Court. . . .”

       General Statutes § 13a-14 provides: “There shall be a system of state highways which shall include (1) state primary highways, which are highways serving the predominant flow of traffic between the principal towns of this state and between such towns and similar towns of the surrounding states; (2) state secondary highways, which are connecting and feeder highways which supplement the state primary system by serving the predominant flow of traffic between the smaller towns of the state and between such towns and other towns in this state and in surrounding states; and (3) state special service highways, which are highways which provide access from the primary and secondary systems of state highways to federal and state facilities.”

       See footnote 1.

       The plaintiff concedes, and we agree, that the sidewalk where she claims to have fallen is not part of the state highway system as defined under § 13a-14.

       See, e.g., General Statutes §§ 13a-91 (a), 13a-92 and 13a-258.

       The record discloses that the plaintiff first sought unsuccessfully to cite in the state as an additional party defendant. The plaintiff did not appeal from that denial.

       General Statutes § 4-160 (a) provides: “When the Claims Commissioner deems it just and equitable, he may authorize suit against the state on any claim which, in his opinion, presents an issue of law or fact under which the state, were it a private person, could be hable.”


author: DUPONT, C. J.

text:
    JARRETT PION v. SOUTHERN NEW ENGLAND TELEPHONE COMPANY
    (15632)
    Dupont, C. J., and Spear and Hennessy, Js.
    Submitted on briefs January 29
    officially released April 8, 1997

      Timothy C. Spayne and Donald E. Leone filed a brief for the appellant (plaintiff).

      Eugene A. Cooney and Sharone G. Komman filed a brief for the appellee (defendant).
   DUPONT, C. J.

The plaintiff appeals from the summary judgment rendered in favor of the defendant. The plaintiff claims that genuine issues of material fact exist that preclude judgment for the defendant as a matter of law. We disagree and affirm the judgment of the trial court.

The relevant uncontroverted facts are those that follow. The plaintiff Jarrett Pion filed this action, through his parents, alleging that on August 8,1990, he sustained multiple injuries when, while riding his bicycle, the “bicycle drifted” and he “violently struck a repeater box and cross arm support braces that were mounted” on a telephone pole owned, controlled and maintained by the defendant. The investigative report by the state police contained information that between 1 p.m. and 2 p.m., the plaintiff was riding his bicycle south on Day Street in the town of Brooklyn. He was accompanied by a friend, Daniel Turner, who was also riding a bicycle. The weather was clear, but the roads were wet in spots from an earlier rain shower. The plaintiff and Turner were riding downhill at a high rate of speed when the plaintiff veered off to the right side of the road and collided with an electric signal repeater box and the telephone pole on which it was mounted, both of which were owned and operated by the defendant. The plaintiff sustained serious head injuries when he made impact with the wooden cross beams that supported the repeater box. The repeater box and cross beams were located four feet from the ground. The telephone pole was located on private property.

Turner was the only eyewitness to the accident. He gave a statement to the police, and was also deposed. Turner testified in his deposition that he and the plaintiff had ridden their bicycles down the hill on Day Street hundreds of times, and that neither of them had ever veered off the road before. Turner described the telephone pole as being on a strip of grass between a white fence and the road. He stated that the distance from the fence to the shoulder of the road is three feet. Turner also stated that there are some trees on the strip of grass between the grass and the road, so that it would be nearly impossible to ride a bicycle on the grass. He also stated that the ordinary place to ride a bicycle on Day Street was in the road and not on the shoulder.

The plaintiff filed a two count complaint. The first count alleged that the defendant was negligent in its placement of the repeater box and in failing to warn adequately of its presence. The second count is identical to the first, except that it alleges that the defendant was reckless, wanton and wilful. The defendant raised two special defenses to both counts, contributory negligence and the barring of both claims by the applicable statute of limitations.

The standard of review for summary judgment is well established. “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. ... In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . Although the party seeking summary 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 an issue. . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment].” (Citation omitted; internal quotation marks omitted.) Home Ins. Co. v. Aetna Life & Casualty Co., 235 Conn. 185, 202, 663 A.2d 1001 (1995); see also Practice Book § 384.

The defendant attached the police report and Turner’s deposition to its motion for summary judgment. The plaintiffs opposition referred to a statement made by Turner on February 22, 1991, to Turner’s deposition and to the police report. The parties agree as to the circumstances surrounding the accident, the extent of the plaintiffs injuries and the location and characteristics of the telephone pole.

The dispositive issue on appeal is whether the defendant owed a duty of care to the plaintiff. The trial court concluded that, as a matter of law, the defendant did not owe the plaintiff any duty. The issue of whether a defendant owes a duty of care is an appropriate matter for summary judgment because the question is one of law. “There can be no actionable negligence . . . unless there exists a cognizable duty of care. . . . Whether a duty of care exists is a question of law to be decided by the court.” (Citations omitted.) Waters v. Autuori, 236 Conn. 820, 826, 676 A.2d 357 (1996).

“The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual. . . . Although it has been said that no universal test for [duty] ever has been formulated . . . our threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised. ... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant’s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? . . . Thus, initially, if it is not foreseeable to a reasonable person in the defendant’s position that harm of the type alleged would result from the defendant’s actions to a particular plaintiff, the question of the existence of a duty to use due care is foreclosed, and no cause of action can be maintained by the plaintiff.” (Internal quotation marks omitted.) Clohessy v. Bachelor, 237 Conn. 31, 45, 675 A.2d 852 (1996).

Foreseeability of the mere possibility of such an accident does not create a duty. “A simple conclusion that the harm to the plaintiff was foreseeable . . . cannot by itself mandate a determination that a legal duty exists. Many harms are quite literally ‘foreseeable,’ yet for pragmatic reasons, no recovery is allowed. ... A further inquiry must be made, for we recognize that ‘duty’ is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection. . . . While it may seem that there should be a remedy for every wrong, this is an ideal limited perforce by the realities of this world. Every injury has ramifying consequences, like the ripplings of the waters, without end. The problem for the law is to limit the legal consequences of wrongs to a controllable degree. . . . The final step in the duty inquiry, then, is to make a determination of the fundamental policy of the law, as to whether the defendant’s responsibility should extend to such results.” (Internal quotation marks omitted.) Id., 45-46.

Specifically, the facts of this case concern whether the defendant telephone company owes a duty of care to a person traveling in the road who accidentally veers off the road and collides with the defendant’s telephone pole, which is located on private property, is surrounded by trees, and is located some distance from the shoulder of the road. The Restatement (Second) of Torts sets forth the duty owed to travelers of public roads by adjacent landowners. “Conditions Dangerous to Travelers on Adjacent Highway. A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidentally brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby to persons who (a) are traveling on the highway, or (b) foreseeably deviate from it in the ordinary course of travel.” 2 Restatement (Second), Torts § 368 (1965).

Section 368 (b) applies to this case. The trial court concluded, on the basis of the police report and Turner’s deposition testimony, that the plaintiffs deviation from the road was not in the ordinary course of travel. This conclusion precluded the need for any further factual findings. Turner stated in his deposition that although he and the plaintiff had ridden down the Day Street hill on many occasions, neither of them had ever ridden on the shoulder or on the grass. He also testified that it was customary for bicycle riders to ride in the middle of Day Street, rather than off to the side or on the shoulder, because the trees and grass on the side of the road made riding there nearly impossible. The plaintiff did not produce any affidavits or other proof pursuant to Practice Book § 384 to counter this evidence.

The plaintiff claims in his brief that the trial court improperly relied on Turner’s deposition, arguing that if the case had gone to trial, the plaintiff would have had the opportunity to refute it with the testimony of an expert. He claims that an expert would testify at trial to the defendant’s negligence, but gives no indication of the possible content or what facts would disprove the factual predicates of § 368 of the Restatement of Torts.

The party opposing a motion for summary judgment “must present evidence that demonstrates the existence of some disputed factual issue .... The movant has the burden of showing the nonexistence of such issues but the evidence thus presented, if otheiwise sufficient, is not rebutted by the bald statement that an issue of fact does exist. ... To oppose a motion for summary judgment successfully, the nonmovant must recite specific facts . . . which contradict those stated in the movant’s affidavits and documents.” (Citations omitted; internal quotation marks omitted.) Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578-79, 573 A.2d 699 (1990). The opposing party to a motion for summary judgment “must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . The existence of the genuine issue of material fact must be demonstrated by counter-affidavits and concrete evidence.” (Citation omitted; internal quotation marks omitted.) 2830 Whitney Avenue Corp. v. Heritage Canal Development Associates, Inc., 33 Conn. App. 563, 567, 636 A.2d 1377 (1994).

The plaintiff argues that the questions of whether the deviation from the road was foreseeable and whether the plaintiff was riding his bicycle with due care are factual issues that should have gone to a jury. Although foreseeability is a necessary component of duty; Waters v. Autuori, supra, 236 Conn. 827; “the conclusion that a particular injury to a particular plaintiff or class of plaintiffs possibly is foreseeable does not, in itself, create a duty of care. . . . [F]oreseeability is not commensurate with duty, and proof of foreseeability does not establish the existence of a duty of care.” (Citations omitted; internal quotation marks omitted.) Id., 827-28.

We conclude that the trial court was correct in its determination, as a matter of law, that the defendant could not reasonably foresee the possibility of an accident such as the plaintiffs and that even if such a possibility existed, it was too remote to create a duty to the plaintiff. Clohessy v. Bachelor, supra, 237 Conn. 45-46.

The judgment is affirmed.

In this opinion the other judges concurred.

       In fact, with the exception of Turner’s February 22, 1991 statement, the plaintiff offered the same documents in his opposition as the defendant offered in its motion for summary judgment. The February 22,1991 statement is consistent with the deposition in all relevant areas.