author: BISHOP, J.

text:
    COUNTRYWIDE HOME LOANS SERVICING, LP v. DIANE CREED
    (AC 33477)
    DiPentima, C. J., and Keller and Bishop, Js.

      Argued March 20
    officially released August 20, 2013

      Kevin Creed, for the appellant (defendant).

      Oscar L. Suarez, for the appellee (substitute plaintiff).
   Opinion

BISHOP, J.

In this foreclosure action, the defendant, Diane Creed, appeals from the judgment of strict foreclosure rendered by the trial court in favor of the substitute plaintiff, Aurora Loan Services, LLC. On appeal, the defendant claims that (1) the court improperly failed to hold an evidentiary hearing to determine if it had subject matter jurisdiction after she raised the issue of the plaintiffs standing, and (2) neither the original plaintiff nor the substitute plaintiff had standing to bring the action. We affirm the judgment of the trial court.

The following undisputed facts and procedural history are pertinent to our consideration of the issues on appeal. On November 9, 2006, the defendant executed a mortgage in favor of Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for American Brokers Conduit, which secured a debt evidenced by a $420,000 promissory note executed on the same date and made payable to American Brokers Conduit. Prior to the commencement of this action, the note, endorsed in blank, was negotiated and delivered to Countrywide. On May 21,2007, Countrywide initiated this foreclosure action based on the defendant’s alleged failure to make required payments due on the note and mortgage after February 1, 2007. In April, 2008, Countrywide transferred possession of the note to the plaintiff. The plaintiff became a party to the foreclosure action by way of a motion to substitute after MERS assigned the mortgage to it in June, 2008. The defendant did not object to the plaintiffs motion to substitute and it was granted by the court, Agati, J., on July 14, 2008.

The trial court file reflects that the defendant made numerous discovery requests during the pendency of the matter and that the court was requested to address multiple objections and motions to compel with respect to the production of requested documents. In April, 2010, the plaintiff filed a motion for summary judgment as to liability against the defendant. Attached to the plaintiffs motion were two affidavits: by Cheryl Marchant, a vice president of the plaintiff, and John Cook, a title searcher retained by the plaintiff. Also attached to the plaintiffs motion for summary judgment were copies of the mortgage deed, the note, and the assignment of the mortgage from MERS filed on the Southbury land records. The court, Abrams, J., denied the plaintiffs motion on the ground that there was a genuine issue of material fact regarding whether the plaintiff had failed to credit payments made by the defendant.

After another series of discovery disputes and the entry of a default against the defendant for failure to respond to requests for admission, the plaintiff filed a motion for a judgment of strict foreclosure. At the hearing on the motion on May 2, 2011, the defendant questioned the plaintiffs chain of title to the note and challenged whether Countrywide held the note at the commencement of the action. In response, the plaintiff produced the original note, which had two cancelled endorsements to Countrywide and one endorsement in blank, the original mortgage executed in favor of MERS, and the assignment of the mortgage from MERS to the plaintiff. On the basis of these documents, the court, Matasavage, J., determined that the plaintiff was the holder of the note and rendered a judgment of strict foreclosure. The defendant filed the present appeal, which initiated an automatic stay of the foreclosure. See Practice Book § 61-11 (a).

On July 11, 2011, the plaintiff successfully moved to terminate the appellate stay of execution. The defendant filed a motion to review the court’s termination of stay order, which subsequently was denied by this court on September 1,2011. In October, 2011, the defendant filed a postjudgment motion to dismiss the action in the trial court, claiming that the plaintiff did not have standing to bring the foreclosure action and that, therefore, the court lacked subject matter jurisdiction. In connection with her motion to dismiss, the defendant filed a request for a full evidentiary hearing. The plaintiff objected to the motion and the court, Trombley, J., denied the defendant’s motion. Judge Trombley determined that he would not order an evidentiary hearing on the standing issue because Judge Matasavage had examined the issue when he rendered the judgment of strict foreclosure on May 2,2011. He further determined that the plaintiff had produced the original note at the hearing before Judge Matasavage, which was sufficient to confer standing on the plaintiff.

Thereafter, on January 10, 2012, the plaintiff filed a motion to open the judgment of foreclosure and reenter judgment after a termination of the appellate stay. By memorandum of decision dated February 7, 2012, the court, Taylor, J., granted the plaintiff’s motion to open and reenter judgment. Judge Taylor found that the plaintiff had established that it held the note and that the defendant had failed to rebut the evidence establishing the plaintiffs right to maintain the action. Thereafter, on March 19, 2012, Judge Taylor rendered a judgment of strict foreclosure and set a new law day of April 10, 2012. The defendant subsequently filed an amended appeal in which she claimed that the trial court had once again improperly rendered a judgment of strict foreclosure. On May 24,2012, the plaintiff filed another motion to terminate the appellate stay. Judge Taylor denied that motion on December 4, 2012, and wrote in his memorandum of decision that after the first appellate stay was terminated, several issues had arisen warranting the continuation of the appellate stay, including whether the plaintiffs showing regarding its claimed status as the holder of the note was sufficient in the absence of an evidentiary hearing. We now turn to the defendant’s claims on appeal.

I

The defendant first claims that the court improperly failed to conduct an evidentiary hearing to determine whether it had subject matter jurisdiction when she raised the issue of the plaintiffs standing. Specifically, the defendant argues that she raised questions of fact regarding the dates of the various assignments of the note and the validity of the assignments and that, therefore, she was entitled to an evidentiary hearing to resolve the jurisdictional factual dispute. We are not persuaded.

As a preliminary matter, we set forth the standard of review. “Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause.” (Internal quotation marks omitted.) RMS Residential Properties, LLC v. Miller, 303 Conn. 224, 229, 32 A.3d 307 (2011). “We have long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary. . . . Moreover, [i]t is a fundamental rule that a court may raise and review the issue of subject matter jurisdiction at any time. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction .... The subject matter jurisdiction requirement may not be waived by any party, and also may be raised by a party, or by the court sua sponte, at any stage of the proceedings, including on appeal. . . . Once the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented. . . . The court must fully resolve it before proceeding further with the case.” (Internal quotation marks omitted.) Park National Bank v. 3333 Main, LLC, 127 Conn. App. 774, 778, 15 A.3d 1150 (2011).

“In determining whether a court lacks subject matter jurisdiction, the inquiry usually does not extend to the merits of the case. . . . Nevertheless, the court must determine whether it has the power to hear the general class [of cases] to which the proceedings in question belong. . . . Because the elements of subject matter jurisdiction are dependent upon both law and fact . . . in some cases it may be necessary to examine the facts of the case to determine if it is within a general class the court has power to hear. . . . Further, [w]hen issues of fact are necessary to the determination of a court’s jurisdiction, due process requires that a trial-like hearing be held, in which an opportunity is provided to present evidence and to cross-examine adverse witnesses.” (Internal quotation marks omitted.) Equity One, Inc. v. Shivers, 125 Conn. App. 201, 204-206, 9 A.3d 379 (2010), cert. granted, 300 Conn. 936, 17 A.3d 474 (2011).

The defendant relies on various precedents from this court to support her claim that if a defendant raises an issue of the plaintiffs standing, the court must hold a full “trial-like” evidentiary hearing. For example, in Equity One, Inc. v. Shivers, supra, 125 Conn. App. 201, this court held that because the trial court did not specifically find that the plaintiff was the holder of the note at the time that it instituted the action, the trial court failed to determine the pertinent facts necessary to ascertain whether it had subject matter jurisdiction. Consequently, this court remanded the case with direction to the trial court to hold an evidentiary hearing to determine the necessary jurisdictional issue of fact concerning whether the plaintiff was the holder of the note at the time it commenced the action. Id., 206. See also Park National Bank v. 3333 Main, LLC, supra, 127 Conn. App. 779-80 (when question regarding plaintiffs standing was raised on motion for summary judgment, court should have held hearing to determine whether plaintiff was owner or holder of note at time action was commenced).

We agree with the defendant that “ [o]nce the question of lack of jurisdiction is raised, it must be disposed of no matter in what form it is presented.” (Internal quotation marks omitted.) Equity One, Inc. v. Shivers, supra, 125 Conn. App. 204. This principle, however, only requires that the court actually “determine the pertinent facts necessary to ascertain where jurisdiction [exists].” Id., 206. Thus, although we have held that an evidentiary hearing is required to resolve a disputed question of fact as to when the plaintiff acquired the note, those precedents are inapposite because in the case at hand there is no dispute that the plaintiff was the holder of the note. Thus, where a jurisdictional determination is not dependent on the resolution of a meaningful factual dispute, there is no requirement that the court conduct a fact-based hearing.

In the present case, there was no factual dispute that required the court to hold an evidentiary hearing to properly determine that it had subject matter jurisdiction. Judge Matasavage had the pertinent facts before him from which he could properly determine that the plaintiff had standing. The plaintiff presented the original note, with an accompanying affidavit detailing its transfer from Countrywide. The plaintiff was entitled to a rebuttable presumption that, as the holder of the note endorsed in blank, it had standing. In RMS Residential Properties, LLC v. Miller, supra, 303 Conn. 228-32, our Supreme Court held that, pursuant to General Statutes § 49-17, the holder of a negotiable promissory note secured by a mortgage has standing to bring a foreclosure action against the maker of the note, even prior to the assignment of the mortgage to the holder. “[A] holder of a note is presumed to be the owner of the debt, and unless the presumption is rebutted, may foreclose the mortgage under [General Statutes] § 49-17. . . . The production of the note establishes his case prima facie against the makers and he may rest there. ... It [is] for the defendant to set up and prove the facts which limit or change the plaintiffs rights.” (Internal quotation marks omitted.) Id., 231-32; see also Deutsche Bank National Trust Co. v. Shivers, 136 Conn. App. 291, 297 n.4, 44 A.3d 879 (same), cert. denied, 307 Conn. 938, 56 A.3d 950 (2012).

The defendant argues, nevertheless, that she brought two disputed factual issues to the court’s attention during the May 2, 2011 hearing on the plaintiffs motion for judgment of strict foreclosure before Judge Matasa-vage. First, she claimed that two of the endorsements on the note had been cancelled and argued that a hearing was required in order to determine the effect of the cancellations. The court concluded, however, that the documents were in order and that they demonstrated that the plaintiff was the holder of note and therefore had standing to foreclose on the mortgage. Specifically, the court responded: “They now hold the note. They’re the ones—Aurora Loan Services is the one who brought the case. They’re holding the note. There was an endorsement on there that was cancelled. What more do you need to know? They hold the note. The documents appear to be in order. There is an assignment here from MERS to Aurora Loan Services. The documents appear to be in order.” As to the defendant’s issue of fact regarding the cancelled endorsements, on the basis of our review of the record, we fail to see how an eviden-tiary hearing could produce additional evidence that would change the legal effect of the blank endorsement on the note, which, as a matter of law, transformed the instrument into bearer paper, payable to any party who possessed it. See General Statutes § 42a-3-205 (b) (“[w]hen endorsed in blank, an instrument becomes payable to bearer and may be negotiated by transfer of possession alone until specially endorsed”).

Second, the defendant asserts that she brought up a discrepancy in the dates of the assignment of the note. She questioned whether in fact the plaintiff had been assigned the mortgage prior to the action, to which the court responded that the document “speaks for itself’ and instructed the defendant’s counsel to examine the document. On appeal regarding this issue, the defendant argues that she was referring to the discrepancy between the date of the purported assignment of the mortgage and the note by MERS and the date of Countrywide’s transfer of the note. The document evidencing the transfer of the mortgage from MERS to the plaintiff is titled “Corporate Assignment of Mortgage” and purports to assign “the said Mortgage together with the Note.” Although the plaintiff agrees that the language in the assignment of the mortgage purports to assign both the mortgage and the note, it also argues that this is meaningless in light of the undisputed fact that MERS never held the note. The plaintiff also asserts that the defendant did not actually raise this issue before Judge Matasavage prior to the rendering of a judgment of strict foreclosure. The plaintiff further argues that although the defendant did raise this specific issue before Judge Trombley and Judge Taylor, she failed to offer any evidence that called into question the plaintiff’s status as holder of the note. We agree with the plaintiff that the defendant did not produce any evidence that this, arguably inaccurate, filing on the land records rebutted the presumption that the plaintiff had standing as the possessor of the note endorsed in blank. Chase Home Finance, LLC v. Fequiere, 119 Conn. App. 570, 576-77, 989 A.2d 606 (even if assignment of mortgage to trustee was not valid, trustee, as holder of negotiable instrument secured by mortgage, had statutory right to foreclose on mortgage, and trustee had standing to bring foreclosure action), cert. denied, 295 Conn. 922, 991 A.2d 564 (2010). Thus, since any discrepancy in the language of the assignment as to whether the assignment pertains to both the mortgage and note is not legally pertinent to the plaintiffs right to bring this action, there was no need for the court to conduct an evidentiary hearing on that issue.

In sum, having failed to present any evidence rebutting the presumption that Countrywide was the rightful owner of the debt at the time it commenced the action, or that the plaintiff improperly was substituted for Countrywide, the defendant is unable to demonstrate any disputed jurisdictional facts mandating or warranting an evidentiary hearing. “Due process does not mandate full evidentiary hearings on all matters, and not all situations calling for procedural safeguards call for the same kind of procedure. ... So long as the procedure afforded adequately protects the individual interests at stake, there is no reason to impose substantially greater burdens . . . under the guise of due process.” (Citation omitted; internal quotation marks omitted.) GMAC Mortgage Corp. v. Glenn, 103 Conn. App. 264, 275, 931 A.2d 290 (2007). Accordingly, the defendant’s claim fails.

II

We next address the defendant’s related claim that neither Countrywide nor the plaintiff had standing to bring the action. We are not persuaded.

“It is well established that [a] party must have standing to assert a claim in order for the court to have subject matter jurisdiction over the claim. . . . Standing is the legal right to set judicial machinery in motion. One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subj ect matter of the controversy. . . . [T]he court has a duty to dismiss, even on its own initiative, any appeal that it lacks jurisdiction to hear. . . . Where a party is found to lack standing, the court is consequently without subject matter jurisdiction to determine the cause. . . . Our review of the question of [a] plaintiffs standing is plenary.” (Internal quotation marks omitted.) HSBC Bank, USA, N.A. v. Navin, 129 Conn. App. 707, 710-11, 22 A.3d 647, cert. denied, 302 Conn. 948, 31 A.3d 384 (2011).

The defendant first argues that Countrywide did not have standing to commence the foreclosure action due to the cancelled endorsements on the note. The defendant, however, ignores the undisputed fact that the note had three endorsements: the two cancelled endorsements to Countrywide and one blank endorsement. As stated previously, the subject promissory note was endorsed in blank by American Brokers Conduit, and, therefore, is payable to the bearer. “The plaintiffs standing to enforce the promissory note is set forth by the provisions of the Uniform Commercial Code as adopted in General Statutes § 42a-1-101 et seq. Under these statutes, only a ‘holder’ of an instrument or someone who has the rights of a holder is entitled to enforce the instrument. General Statutes § 42a-3-301. The ‘holder’ is the person or entity in possession of the instrument if the instrument is payable to bearer. General Statutes § 42a-l-201 (b) (21) (A). When an instrument is endorsed in blank, it ‘becomes payable to bearer and may be negotiated by transfer of possession alone . . . .’ General Statutes § 42a-3-205 (b).” Chase Home Finance, LLC v. Fequiere, supra, 119 Conn. App. 577. Countrywide, by way of its possession of an instrument payable to bearer, was a valid holder of the instrument and, therefore, was entitled to enforce it. See id. Accordingly, Countrywide had standing to commence the foreclosure action.

We turn now to the defendant’s claim that the plaintiff also lacked standing. The defendant first repeats her argument as to the cancelled endorsements on the note because the plaintiff obtained the note from Countrywide. Again, it is undisputed that when the plaintiff was substituted into the action, it had possession of the note endorsed in blank. When the plaintiff was substituted into the action, it assumed the position of Countrywide. “The manner in which to bring a title taken by an assignment pending suit to the attention of the court is by and in an application for a change of parties. ... No new cause of action, in such case, has arisen; there has been simply a transfer of the right of action for the original cause. . . . The substitution was effected when the order that it be made was passed. Nothing further was required to put the new plaintiff in the shoes of the former plaintiffs.” (Internal quotation marks omitted.) F.P., Inc. v. Collegium & Wethersfield Ltd. Partnership, 33 Conn. App. 826, 831, 639 A.2d 527, cert. denied, 229 Conn. 917, 642 A.2d 1211 (1994).

The defendant also argues that the plaintiff lacked standing at the time of judgment because MERS, the original mortgagee as nominee for American Brokers Conduit, did not have title to the note, and, therefore, its purported assignment of the mortgage and the note to the plaintiff was ineffective. As discussed previously, the plaintiff agrees that the language in the “Corporate Assignment of the Mortgage” that purports to assign both the mortgage and the note is meaningless in light of the fact that MERS never obtained an interest in the note. The plaintiff also argues that regardless of whether the assignment of the note from MERS was effective, it had obtained possession of the note from Countrywide and, therefore, was a valid holder of the instrument and was entitled to enforce it. For example, in CitiMortgage, Inc. v. Gaudiano, 142 Conn. App. 440, 68 A.3d 101 (2013), this court held that the evidence supported the trial court’s determination that the holder had standing to bring a foreclosure action, notwithstanding a similar discrepancy in land records as here, where MERS recorded an assignment of the mortgage and note, despite the undisputed fact that MERS never held the note. Section 49-17 “permits the holder of a negotiable instrument that is secured by a mortgage to foreclose on the mortgage even when the mortgage has not yet been assigned to him. . . . The statute codifies the common-law principle of long standing that the mortgage follows the note, pursuant to which only the rightful owner of the note has the right to enforce the mortgage. . . . Our legislature, by adopting § 49-17, has provide [d] an avenue for the holder of the note to foreclose on the property when the mortgage has not been assigned to him. ” (Emphasis added; internal quotation marks omitted.) Id., 445. In the present case, the defendant failed to produce any evidence to rebut the presumption that the plaintiff was the holder of the note. RMS Residential Properties, LLC v. Miller, supra, 303 Conn. 234 (“[i]t is for the maker of the note to rebut the presumption that a holder of the note is also the owner of it”). We therefore conclude that the court correctly determined that the plaintiff had standing.

The judgment is affirmed and the case is remanded for the purpose of setting new law days.

In this opinion the other judges concurred.

       Mortgage Electronic Registration Systems, Inc. (MERS), was cited into the action as a party defendant in the trial court. MERS did not file an appearance and was defaulted. We refer to Diane Creed as the defendant in this opinion.

       This action was initially commenced by the named plaintiff, Countrywide Home Loans Servicing, LP (Countrywide), as agent for Park Sienna. Aurora Loan Services, LLC, became a party to the foreclosure action by way of a motion to substitute after Countrywide transferred possession of the note to it. We refer to Aurora Loan Services, LLC, as the plaintiff in this opinion.

       As this court previously has explained, “MERS does not originate, lend, service, or invest in home mortgage loans. Instead, MERS acts as the nominal mortgagee for the loans owned by its members. The MERS system is designed to allow its members, which include originators, lenders, servicers, and investors, to assign home mortgage loans without having to record each transfer in the local land recording offices where the real estate securing the mortgage is located. . . .
      “The benefit of naming MERS as the nominal mortgagee of record is that when the member transfers an interest in a mortgage loan to another MERS member, MERS privately tracks the assignment within its system but remains the mortgagee of record. According to MERS, this system saves lenders time and money, and reduces paperwork, by eliminating the need to prepare and record assignments when trading loans. . . .
      “If, on the other hand, a MERS member transfers an interest in a mortgage loan to a non-MERS member, MERS no longer acts as the mortgagee of record and an assignment of the security instrument to the non-MERS member is drafted, executed, and typically recorded in the local land recording office. ” (Internal quotation marks omitted.) Chase Home Finance, LLC v. Fequiere, 119 Conn. App. 570, 572 n.2, 989 A.2d 606 (quoting Jackson v. Mortgage Electronic Registration Systems, Inc., 770 N.W.2d 487, 490-91 [Minn. 2009]), cert. denied, 295 Conn. 922, 991 A.2d 564 (2010).

       The document evidencing the transfer of the mortgage from MERS to the plaintiff was titled “Corporate Assignment of Mortgage” and purported to assign “the said Mortgage together with the Note.” The plaintiff concedes that MERS was only the mortgagor and did not have an interest in the note for it to assign.

       The first judgment of strict foreclosure was entered in this action by the court, Agati, J., on September 22, 2008, and was opened.

       In rendering a new judgment of foreclosure, the court, Taylor, J., did not create a mootness problem with respect to the defendant’s original appeal because in opening the judgment, the trial court did not reverse itself or resolve any of the issues in the original appeal in the defendant’s favor. See RAL Management, Inc. v. Valley View Associates, 278 Conn. 672, 691-92, 899 A.2d 586 (2006). In that case, our Supreme Court stated that “[i]n considering the effect of the opening of a judgment on a pending appeal . . . the appropriate question is whether the change to the judgment has affected the issue on appeal. If, in opening the judgment, the trial court reverses itself and resolves the matter at issue on appeal in the appellant’s favor, it is clear that the appeal is moot as there is no further practical relief that may be afforded. . . . Conversely, if the judgment is opened to address issues entirely unrelated to the appeal, the opening of the judgment has had no effect on the availability of relief.” (Citations omitted.) Id.

       On May 30, 2012, this court granted the defendant’s motion to file a supplemental brief in connection with her amended appeal challenging the decisions of Judge Taylor and Judge Trombley. The defendant failed to file a supplemental brief, and, therefore, any claims she sought to raise in connection with her amended appeal are deemed abandoned. See Deutsche Bank National Trust Co. v. Bertrand, 140 Conn. App. 646, 648 n.2, 59 A.3d 864, cert. dismissed, 309 Conn. 905, 68 A.3d 661 (2013).

       General Statutes § 49-17 provides: “When any mortgage is foreclosed by the person entitled to receive the money secured thereby but to whom the legal title to the mortgaged premises has never been conveyed, the title to such premises shall, upon the expiration of the time limited for redemption and on failure of redemption, vest in him in the same manner and to the same extent as such title would have vested in the mortgagee if he had foreclosed, provided the person so foreclosing shall forthwith cause the decree of foreclosure to be recorded in the land records in the town in which the land lies.”


source: Caselaw Access Project

author: ALVORD, J.

license: Public Domain

text:
    STATE OF CONNECTICUT v. VICTOR C.

    (AC 34055)
    Robinson, Alvord and Keller, Js.

      Argued April 11
    officially released August 20, 2013

      Michael Zariphes, assigned counsel, for the appellant (defendant).

      Adam E. Mattel, deputy assistant state’s attorney, with whom, on the brief, were John C. Smriga, state’s attorney, and Cornelius P. Kelly, senior assistant state’s attorney, for the appellee (state).

       In accordance with our policy of protecting the privacy interests of the victims of the crime of risk of injury to a child, we decline to identify the victim or others through whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

   Opinion

ALVORD, J.

The defendant, Victor C., appeals from the judgment of conviction, rendered after a jury trial, of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that the trial court improperly (1) denied his postverdict motions for a judgment of acquittal and a new trial on the basis of insufficient evidence; (2) permitted the state, just prior to presenting its case-in-chief, to file a substitute information extending the time period during which the alleged crimes were committed, and denied his request for a continuance in order to formulate a defense for the extended time period; and (3) admitted the hearsay statements of the minor victim contained within the testimony of a nurse practitioner. We affirm the judgment of conviction.

The jury reasonably could have found the following facts in support of its verdict. In 2009, the victim was thirteen years old. Between March and September of that year, her mother was staying at a drug rehabilitation center, and the victim was living in a house in Bridgeport with her grandmother, grandfather, uncle, one or two younger siblings, and her stepfather, the defendant. One night, the defendant entered the victim’s bedroom and, after removing her clothes, rubbed his erect penis on her breasts and vagina (incident). The victim did not attempt to stop the incident from occurring because she was scared.

The victim told her mother about the incident while her mother was residing at the drug rehabilitation center. Her mother previously had been investigated by the Department of Children and Families (department), and she did not inform anyone of what had happened to her daughter. The victim then told her uncle’s girlfriend about the incident, and through a series of conversations, several members of the victim’s family became aware of the incident. At about the same time, the victim’s special education teacher, who is a mandated reporter; see General Statutes § 17a-101 (b); noticed that the victim was unfocused and apathetic in the classroom. She confronted the victim about her change in attitude, and the victim told her about the incident. The special education teacher brought the victim to the school’s social worker, and the department was contacted. The victim was interviewed by a department investigator and later by a forensic examiner. Approximately fifteen days after disclosing the incident to her special education teacher, the victim was examined by Janet Murphy, a nurse practitioner at the child sexual abuse clinic (clinic) at Yale-New Haven Hospital. Murphy’s examination consisted of an interview of the victim as well as a physical examination.

The record reveals the following procedural history. The defendant was charged with sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (1), sexual assault in the second degree in violation of General Statutes § 53a-71 (a) (1), risk of injury to a child in violation of § 53-21 (a) (2) and threatening in the second degree in violation of General Statutes § 53a-62 (a) (1). On December 30, 2010, the state filed a substitute part A information alleging that he violated those statutes on “an undetermined date in November or December of 2009 . . . .” On August 2, 2011, the state filed an amended substitute information, which differed from the original information only in that it removed the charge of threatening in the second degree. On September 12,2011, the state filed a substitute information, which alleged that the defendant committed the three remaining crimes “on an undetermined date between March and December of 2009 . . . .”

The state proffered the September 12,2011 substitute information outside the presence of the empaneled jury just prior to commencing its case-in-chief against the defendant. The defendant objected to the substitute information on the ground that expanding the time period when the incident occurred from November or December, 2009, to sometime between March and December, 2009, was a violation of his due process and confrontation clause rights. During his argument in support of his objection, he requested a continuance to further investigate and formulate a defense for the expanded time period. After argument, the court determined that the time period was not an essential element of the alleged crimes and overruled the defendant’s objection to the substitute information.

Following the presentation of the state’s case-in-chief, the court granted the defendant’s oral motion for a judgment of acquittal as to sexual assault in the first degree, and the state filed an amended substitute information to reflect that judgment. The jury subsequently returned a guilty verdict on the charge of risk of injury to a child in violation of § 53-21 (a) (2), and was unable to reach a unanimous verdict on the charge of sexual assault in the second degree. The defendant then filed a motion for a judgment of acquittal and a motion for a new trial. The court denied both motions. Thereafter, the court rendered judgment of conviction on the charge of risk of injury to a child in violation of § 53-21 (a) (2) and sentenced the defendant to incarceration for twenty years, suspended after fifteen years, and ten years of probation. This appeal followed.

I

The defendant first claims that the court improperly denied his postverdict motions for a judgment of acquittal and a new trial on the basis of insufficient evidence. He argues that the inconsistency and impeachment of the victim’s testimony cast significant doubt on its veracity, and that the victim’s testimony about the incident, absent any physical evidence, was insufficient to support the jury’s guilty verdict. We do not agree that the evidence was insufficient to sustain the conviction.

The record reveals that the defense strategy was to undermine the credibility of the victim and that the victim’s testimony was inconsistent and contradicted by other testimony. For example, the victim initially testified that she could not remember where within the home or what time of day the incident occurred, but subsequently testified that the incident happened in her bedroom at night. Throughout her testimony, when she was posed questions pertaining to the incident, the victim testified that she could not remember. Oftentimes, however, she would follow up those answers by stating, “I don’t want to remember,” and then providing an answer to the question. On cross-examination, after answering a series of questions about the discrepancy between her answers of, “I don’t remember,” and, “I don’t want to remember,” the victim answered yes to a leading question about whether she had fabricated the entire story about the incident. Her answer to the next question, however, denied that she had fabricated the story, and defense counsel did no further questioning on that topic. After the victim testified, the jury heard testimony from the victim’s special education teacher that the victim had difficulty expressing herself, receiving information, maintaining concentration and disclosing personal information. The jury also heard testimony from the forensic interviewer, who testified that when he interviewed the victim, she was anxious, nervous and uncomfortable during the interview, and that she responded, “I don’t remember,” multiple times to his questions. He further testified that when he asked the victim about such responses, the victim stated that she responded in that manner because it was hard to talk about the incident.

The victim testified that the incident occurred in November or December, 2009, while her mother was staying at the drug rehabilitation center. This testimony was contradicted by the testimony of one of her uncles that the victim’s mother had left the drug rehabilitation center and returned home in September, 2009. In the defendant’s case-in-chief, he offered the impeachment testimony of another one of the victim’s uncles. That uncle’s testimony, that the victim’s one year old brother could not have been staying at the house with the victim at the time of the incident, contradicted the victim’s testimony that her brother was present when the incident occurred.

“The standard of review employed in a sufficiency of the evidence claim is well settled. [W]e apply a two part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the [jury] reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt. ... [A reviewing court] cannot substitute its own judgment for that of the jury if there is sufficient evidence to support the jury’s verdict. . . . [P]roof beyond a reasonable doubt does not mean proof beyond all possible doubt . . . nor does proof beyond a reasonable doubt require acceptance of every hypothesis of innocence posed by the defendant that, had it been found credible by the [jury], would have resulted in an acquittal. ... On appeal, we do not ask whether there is a reasonable view of the evidence that would support a reasonable hypothesis of innocence. We ask, instead, whether there is a reasonable view of the evidence that supports the jury’s verdict of guilty.” (Internal quotation marks omitted.) State v. Moore, 141 Conn. App. 814, 818, 64 A.3d 787, cert. denied, 309 Conn. 908, 68 A.3d 663 (2013).

“Questions of whether to believe ór to disbelieve a competent witness are beyond our review. As a reviewing court, we may not retry the case or pass on the credibility of witnesses. . . . We must defer to the [finder] of fact’s assessment of the credibility of the witnesses that is made on the basis of its firsthand observation of their conduct, demeanor and attitude.” (Internal quotation marks omitted.) State v. John O., 137 Conn. App. 152, 160, 47 A.3d 905, cert. denied, 307 Conn. 913, 53 A.3d 997 (2012). “When conflicting testimony is presented, the jury may credit the testimony it finds believable. . . . Therefore, [t]he [jury] can . . . decide what—all, none, or some—of a witness’ testimony to accept or reject.” (Internal quotation marks omitted.) State v. Madore, 96 Conn. App. 271, 283, 900 A.2d 64, cert. denied, 280 Conn. 907, 907 A.2d 93 (2006). Moreover, the state need not present physical evidence in order to secure a conviction; see State v. Pedro S., 87 Conn. App. 183, 201, 865 A.2d 1177, cert. denied, 273 Conn. 924, 871 A.2d 1033 (2005); the jury may find a defendant guilty based solely on the testimony of one witness. See, e.g., State v. Madore, supra, 283 n. 12. The dispositive question in this case, therefore, is whether the victim’s testimony provided the jury with a reasonable basis on which it could conclude that the state proved beyond a reasonable doubt each of the elements of § 53-21 (a) and, thus, provided the jury with a sufficient basis on which it could find the defendant guilty of that charge.

To convict the defendant of risk of injury to a child pursuant to § 53-21 (a) (2), the state was required to prove beyond a reasonable doubt that he “ha[d] contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjected] a child under sixteen years of age to contact with the intimate parts of [the defendant] in a sexual and indecent manner likely to impair the health or morals of such child . . . (Emphasis added.) The state elicited the testimony of the victim, who testified that when she was thirteen years old the defendant entered her bedroom one night, removed her clothing and rubbed his erect penis on her breasts and vagina. The victim’s testimony, therefore, provided evidence that the defendant’s conduct met the elements of § 53-21 (a) (2) on the basis of either contact with the victim’s intimate parts or the subjection of the victim to contact with the intimate parts of the defendant such that the manner of contact was likely to impair the victim’s health or morals. The jury was entitled to credit any portion of the victim’s testimony and properly could find the defendant guilty based solely on her testimony about his conduct. Accordingly, there was sufficient evidence to convict the defendant of risk of injury to a child. The court properly denied the defendant’s postverdict motions for a judgment of acquittal and a new trial.

II

The defendant next claims that the court abused its discretion when (1) it allowed the state, just prior to presenting its case-in-chief, to submit a substitute information that expanded the time period during which the alleged crimes occurred, and (2) it denied the defendant’s request for a continuance to investigate and prepare a defense for the expanded time period in the substitute information. We do not agree that the court abused its discretion.

The record reveals that on the morning of September 12, 2011, the court, Thim, J., opened court by noting that the state had filed a substitute information. The prosecutor explained that the substitute information contained two changes. First, it changed the time frame during which the alleged crimes occurred from “an undetermined date in November or December of 2009” to “an undetermined date between March and December of 2009 . . . .” Second, it changed the number of the street address of the house where the alleged crimes occurred. The defense attorney objected, stating: “Your Honor ... I object to the amending of the information. Not the address, but the expansion of the time period. We’ve never dealt with a time period other than November [and] December, 2009. Our whole—everything we’ve ever been given is that time. To expand it at this time, I would ask for a delay so we can further our investigation. Our investigation focused on the original time span. I think it’s—at the time of trial to expand it by eight months in a case like this would be inappropriate and would deny my client due process and a right to confront witnesses and a fair trial.”

The prosecutor argued that the state should be permitted to submit a substitute information because time was not an essential element of the crimes. The prosecutor explained that the original information reflected the original time estimate provided by the victim, but that subsequently the victim had said with certainty that the incident occurred while her mother was staying at the drug rehabilitation center, and the prosecutor anticipated that a witness for the defense would testify that the victim’s mother was staying at the drug rehabilitation program from March, 2009, until September, 2009. Finally, the prosecutor noted that the defendant was not prejudiced because the defendant could cross-examine the victim as to the discrepancy in her statements, and the victim’s mother was available to testify. Defense counsel rebutted the prosecutor’s explanation by echoing his objection that the time period was essential in this case and that to expand it by eight months would be prejudicial. The court disagreed and explained its ruling to defense counsel: “The time period is not an essential element of the crime. You said that it might— that somehow this affects the investigation you’ve done. I just don’t see that here. You do not have an alibi defense that has been filed. I just don’t see a demonstration of prejudice.” Defense counsel countered that he did not know whether he had an alibi defense for the time period between March and October, 2009, because he had not had the need to investigate those months. The court overruled the objection.

A

We first review whether the court abused its discretion by allowing the state, just prior to presenting its case-in-chief, to submit a substitute information that expanded the time period during which the alleged crimes occurred. “Before a trial begins, the state has broad authority to amend an information pursuant to Practice Book § 36-17. Once the trial has started, however, the prosecutor is constrained by the provisions of Practice Book § 36-18. This court has held that for purposes of Practice Book § § 36-17 and 36-18, a criminal trial begins with the voir dire of the prospective jurors. . . .

“Under Practice Book § 36-18, if good cause is shown, the court may permit the state to amend the information at any time before a verdict is returned. The sole limiting requirement under Practice Book § 36-18 is that no additional or different offense may be charged in an amendment, and no substantive rights of the defendant may be prejudiced by an amendment. . . .

“The trial court may permit the state, after the start of the trial, to file an amended information to conform to the evidence. . . . The order of the trial court allowing the filing of such an amendment to conform to the evidence is generally within its sound discretion . . . and thus subject to review only upon circumstances indicating an abuse of that discretion. . . .

“If the state seeks to amend charges after the commencement of trial, it shoulders the burden of establishing that no substantive rights of the defendant would be prejudiced. . . . Like any other party petitioning the court, the state must demonstrate the basis for its request. Under [Practice Book] § 624 [now § 36-18], the state must show: (1) good cause for the amendment; (2) that no additional or different offense is charged; and (3) that no substantive right of the defendant will be prejudiced. This allocation of burden encourages the state to prepare its case carefully because it bears the burden of justifying subsequent adjustments.” (Citations omitted; footnote omitted; internal quotation marks omitted.) State v. Wilson F., 77 Conn. App. 405, 411-13, 823 A.2d 406, cert. denied, 265 Conn. 905, 831 A.2d 254 (2003). The defendant concedes that the state met the second prong of the test—no additional offense was charged—but he argues that the state failed to meet the first and third prongs of the test.

To comply with the first prong of the test and “meet its burden of showing good cause to amend an information pursuant to the rules of practice, the state must provide more than a bare assertion that it is merely conforming the charge to the evidence.” State v. Jordan, 132 Conn. App. 817, 825, 33 A.3d 307, cert. denied, 304 Conn. 909, 39 A.3d 1119 (2012). The state must demonstrate why the information necessitated substitution. Id.; see also State v. Grant, 83 Conn. App. 90, 93-95, 98, 848 A.2d 549 (good cause shown when information amended to expand time frame to conform to victim’s testimony that changed from identifying specific date to providing date range when incidents occurred), cert. denied, 270 Conn. 913, 853 A.2d 529 (2004); State v. Wilson F., supra, 77 Conn. App. 413 (good cause shown when amended date in information would more closely conform to anticipated testimony, testifying victim was young when incident occurred and incident occurred years prior). Here, the prosecutor provided a lengthy explanation to the court of his rationale for proffering the substituted information. The prosecutor explained that the victim originally had stated that the incident occurred in November or December, 2009, but subsequently had stated with certainty that the incident had occurred while her mother was staying at the drug rehabilitation center. The state learned that the victim’s uncle would be testifying that the victim’s mother attended the drug rehabilitation center from March, 2009, until September, 2009. The state also was aware that the victim had difficulty remembering the details of the incident because, as she repeatedly stated in interviews prior to trial and subsequently reiterated during her testimony at trial, she did not want to remember the incident. It was reasonable for the court to determine that the state showed good cause for amending the information to conform to the anticipated testimony that would be presented by a child victim who was unsure of the date when the incident occurred and the victim’s uncle who would testify that the victim’s mother was not staying at the drug rehabilitation center in November and December, 2009.

With regard to the third prong of the test, “the decisive question is whether the defendant was informed of the charges with sufficient precision to be able to prepare an adequate defense.” State v. Tanzella, 226 Conn. 601, 608, 628 A.2d 973 (1993). “[T]he constitutional right to be informed of the nature and cause of the accusation entitles the defendant to insist the indictment apprise him of the crime charged with such reasonable certainty that he can make his defense and protect himself after judgment against prosecution on the same charge.” (Internal quotation marks omitted.) State v. Grant, supra, 83 Conn. App. 98-99. “[I]t is not essential in a criminal prosecution that the crime be proved to have been committed on the precise date alleged, it being competent ordinarily for the prosecution to prove the commission of the crime charged at any time prior to the date of the complaint and within the period fixed by the Statute of Limitations. . . . Thus, it is entirely proper for a court to permit an amendment or a substitute information merely to amplify or to correct the time of the commission of the offense when time is not a material ingredient of the crime charged.” (Citations omitted; internal quotation marks omitted.) State v. Ramos, 176 Conn. 275, 276-77, 407 A.2d 952 (1978).

“Time is not usually an essential element of an offense”; State v. Orsini, 187 Conn. 264, 274, 445 A.2d 887, cert. denied, 459 U.S. 861, 103 S. Ct. 136, 74 L. Ed. 2d 116 (1982); and this case in which the defendant did not file an alibi defense does not present an abnormality. See State v. Horton, 132 Conn. 276, 277, 43 A.2d 744 (1945); State v. Ferris, 81 Conn. 97, 99, 70 A. 587 (1908). The defendant was aware that he was on trial for charges stemming from a single incident involving alleged sexual abuse of his stepdaughter. Whether the incident occurred in March, 2009, December, 2009, or sometime in between is not essential to being apprised of the crime charged with such reasonable certainty that he could formulate a defense. The defendant did not present an alibi defense; rather, the theory of his defense was that the victim had fabricated the story because she did not like him. The expanded time frame of the substitute information did not impair his ability to make that argument, as he still was able to elicit testimony that exposed inconsistencies in the victim’s testimony. Further, prior to trial, the defendant was aware that the forensic interviewer’s report provided that the incident occurred while the victim’s mother was at the drug rehabilitation center, and the first substitute information provided that the incident occurred on “an undetermined date . . . .” Accordingly, we conclude that the court did not abuse its discretion in permitting the state to file a substitute information because the defendant was not deprived of his “constitutional right to be informed of the nature and cause of the accusation” against him. (Internal quotation marks omitted.) State v. Grant, supra, 83 Conn. App. 98.

B

We next review whether the trial court abused its discretion by denying the defendant’s request for a continuance to investigate and prepare a defense for the expanded time frame included in the substitute information. “The determination of whether to grant a request for a continuance is within the discretion of the trial court, and will not be disturbed on appeal absent an abuse of discretion. . . .

“A reviewing court is bound by the principle that [e]very reasonable presumption in favor of the proper exercise of the trial court’s discretion will be made. ... To prove an abuse of discretion, an appellant must show that the trial court’s denial of a request for a continuance was arbitrary. . . . There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. ... In the event that the trial court acted unreasonably in denying a continuance, the reviewing court must also engage in harmless error analysis. . . .

“Among the factors that may enter into the court’s exercise of discretion in considering a request for a continuance are the timeliness of the request for continuance; the likely length of the delay; the age and complexity of the case; the granting of other continuances in the past; the impact of delay on the litigants, witnesses, opposing counsel and the court; the perceived legitimacy of the reasons proffered in support of the request; the defendant’s personal responsibility for the timing of the request; [and] the likelihood that the denial would substantially impair the defendant’s ability to defend himself .... We are especially hesitant to find an abuse of discretion where the court has denied a motion for continuance made on the day of the trial.” (Citations omitted; emphasis in original; internal quotation marks omitted.) State v. Davis, 135 Conn. App. 385, 393-94, 42 A.3d 446, cert. denied, 305 Conn. 916, 46 A.3d 171 (2012).

In this case, defense counsel, in the midst of his argument in support of the defendant’s objection to the filing of the substitute information, timely requested a continuance by simply stating: “To expand [the time period] at this time, I would ask for a delay so we can further our investigation.” Defense counsel advanced no separate argument in favor of a continuance, but rather conflated that initial request with his argument in support of his objection to the proffered substitute information. Defense counsel argued that he did not have reason to investigate March through October, 2009, previously, but he did not specify what he wanted to investigate during this time period. Rather, he hypothesized that a potential alibi defense for the time period of March through October, 2009, could be discovered. Further, defense counsel did not specify for how long he was requesting a continuance, and the court was aware that the state’s principal witness had travelled from out of state to testify on the morning when the defendant made his request.

It is unlikely that the court’s denial of the defendant’s request substantially impaired the defendant’s ability to defend himself because the theory of defense related primarily to discrediting the victim’s testimony, and the defendant has not presented any rationale as to how further investigation could have increased the success of that strategy. Even if we assume arguendo that the one sentence in which defense counsel requested a “delay” constituted a sufficient request for a continuance and, further, that the court’s denial of the defendant’s objection to the filing of a substitute information was also a denial of a continuance, the record reflects that the reasons that were presented to the court as support for the continuance do not constitute a sufficient basis on which we can conclude that the denial of a continuance was an abuse of discretion.

Ill

The defendant next claims that the court improperly admitted the victim’s hearsay statements contained within the testimony of a nurse practitioner. He argues that the statements that the victim made to Murphy during her examination were inadmissible under the medical exception to the hearsay rule because her statements “were motivated by a desire to further an investigation and aid in the prosecution of the defendant with respect to her false/fabricated allegation of sexual abuse.” We are not persuaded.

The record reveals that the state called Murphy, who testified as to the following on September 13, 2011. Murphy works as a pediatric nurse practitioner and an associate medical director at the clinic. The clinic provides a variety of services to children in various towns and cities, but Murphy’s work with children from Bridgeport consists of conducting medical evaluations. It was in this capacity that she saw the victim on March 30, 2010.

Prior to conducting a physical examination of the victim, Murphy obtained a “history,” which she defined as information collected about the reason a physician is seeing a patient. She had some information about why the victim had come to see her, but Murphy testified that she “had a few more medical questions around what happened, making sure [she] knew what [she] needed to check. And it’s not just the physical well-being of [the victim], but some of it is the emotional well-being, checking in to see how she is doing, is she feeling safe. And [the clinic’s] intent is to also get these kids into therapy and kind of making sure that [the victim is] doing okay to determine how urgent do we need to get [the victim] into therapy . . . .” After Murphy provided this explanation of the type of information the victim revealed in her history, the prosecutor asked Murphy whether obtaining the history was critical to her diagnosis and treatment of the victim. Murphy answered in the affirmative. The prosecutor then tried to ask about what the victim had said when Murphy obtained her history, but defense counsel objected on the ground that Murphy’s testimony about what the victim said was hearsay. The state claimed the question and advocated that the alleged hearsay contained in Murphy’s response would be admissible pursuant to § 8-3 (5) of the Connecticut Code of Evidence. The court overruled the objection on the basis of § 8-3 (5) and State v. Arroyo, 284 Conn. 597, 935 A.2d 975 (2007). Murphy then testified about what the victim said when Murphy obtained her history, including that she was worried about the adequacy of the medical care that she had sought at her school and that she wanted Murphy to conduct a pregnancy test on her and explain to her the result.

“In State v. Saucier, 283 Conn. 207, 926 A.2d 633 (2007) (en banc), [our Supreme Court] stated: To the extent a trial court’s admission of evidence is based on an interpretation of the [Connecticut] Code of Evidence, our standard of review is plenary. For example, whether a challenged statement properly may be classified as hearsay and whether a hearsay exception properly is identified are legal questions demanding plenary review. They require determinations about which reasonable minds may not differ; there is no judgment call by the trial court .... We review the trial court’s decision to admit evidence, if premised on a correct view of the law, however, for an abuse of discretion.” (Internal quotation marks omitted.) State v. Miller, 121 Conn. App. 775, 780, 998 A.2d 170, cert. denied, 298 Conn. 902, 3 A.3d 72 (2010). In this case, the court identified the section of the Connecticut Code of Evidence that provides the medical exception to the hearsay rule and admitted the hearsay statements of the victim through the testimony of Murphy pursuant to it. The defendant does not claim that the court made an erroneous interpretation of the law, and we therefore review the court’s determination under the abuse of discretion standard.

“Section 8-3 (5) of the Connecticut Code of Evidence provides an exception to the hearsay rule for [a] statement made for purposes of obtaining a medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to the medical diagnosis or treatment.” (Internal quotation marks omitted.) State v. Serrano, 123 Conn. App. 530, 540, 1 A.3d 1277 (2010), cert. denied, 300 Conn. 909, 12 A.3d 1005 (2011). “Admissibility of out-of-court statements made by a patient to a medical care provider depends on whether the statements were made for the purposes of obtaining medical diagnosis or treatment . . . and on whether the declarant’s statements reasonably were related to achieving those ends. . . . The term medical encompasses psychological as well as somatic illnesses and conditions.” (Citations omitted; internal quotation marks omitted.) State v. Telford, 108 Conn. App. 435, 440, 948 A.2d 350, cert. denied, 289 Conn. 905, 957 A.2d 875 (2008). “Although [t]he medical treatment exception to the hearsay rule requires that the statements be both pertinent to treatment and motivated by a desire for treatment ... in cases involving juveniles, our cases have permitted this requirement to be satisfied inferentially.” (Internal quotation marks omitted.) State v. Juan V., 109 Conn. App. 431, 446-47, 951 A.2d 651, cert. denied, 289 Conn. 931, 958 A.2d 161 (2008).

In this case, the court admitted the testimony of Murphy pursuant to § 8-3 (5) of the Connecticut Code of Evidence and State v. Arroyo, supra, 284 Conn. 597. In Arroyo, our Supreme Court affirmed the admission of a child victim’s hearsay statements through a witness’ testimony, which recounted statements that the victim had made during forensic interviews she conducted with the victim. The defendant in Arroyo, however, was not claiming that the court improperly admitted the testimony of the forensic interviewer because it was inadmissible hearsay, but rather that it was a violation of the defendant’s rights under the confrontation clause. Id., 625-35. While the admission of a hearsay statement is limited by the parameters of the confrontation clause; see State v. Cameron M., 307 Conn. 504, 515, 55 A.3d 272 (2012), cert, denied, U.S. , 133 S. Ct. 2744, 186 L. Ed. 2d 194 (2013); the defendant in this case did not make a confrontation clause objection at trial, nor would one have been applicable because the victim was available to testify.

The defendant argues that the victim’s statements were not made to Murphy for purposes of obtaining a medical diagnosis or treatment or describing her medical history, but rather “it was to further her untruthful, unfounded and wrongful attempt to better her life, attitude, depression, anger and living arrangements by providing false and fabricated allegations, information, evidence and statements to other persons in positions of authority who could and would have the ability to help prosecute the defendant because she was depressed and angry about the loss of three family members in the last year, her mother was away due to drug issues and the defendant had disciplined her for talking to older men on her computer.” The record, however, supports a conclusion that the victim’s statements were made for medical purposes.

According to Murphy, she believed that the victim “was just really trying to answer [her] questions and really get good medical care.” This is exemplified by the anecdote Murphy recounted wherein the victim asked for a pregnancy test because she had missed several menstrual periods, requested that Murphy actually show her the result of the test because her school nurse had not done so, and then asked Murphy to repeat the test to ensure that she was not pregnant. As for Murphy’s purpose in interviewing the victim in order to learn her history, she testified that an interview to obtain a patient’s history was common practice and critical to the proper diagnosis and administration of the best physical and psychological care. The court, therefore, did not abuse its discretion in admitting the hearsay statements made by the victim pursuant to § 8-3 (5) of the Connecticut Code of Evidence because the statements were made for the purposes of obtaining a medical diagnosis and describing her history to Murphy.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53-21 (a) provides in relevant part: “Any person who ... (2) has contact with the intimate parts, as defined in section 53a-65, of a child under the age of sixteen years or subjects a child under sixteen years of age to contact with the intimate parts of such person, in a sexual and indecent manner likely to impair the health or morals of such child . . . shall be guilty of ... a class B felony . . . .”

       “ ‘Intimate parts’ means the genital area or any substance emitted therefrom, groin, anus or any substance emitted therefrom, inner thighs, buttocks or breasts.” General Statutes § 53a-65 (8).

       The state does not contend that the defendant’s request was not properly preserved at trial. The record reveals that the thrust of the argument in which the request appears concerned the objection to the filing of the substitute information, and both defense counsel and the prosecutor mentioned the possibility of a continuance only in passing. At the conclusion of argument, the court denied defense counsel’s objection to the filing of the substitute information, did not mention a continuance, and asked defense counsel if he was ready to proceed before the jury. Defense counsel answered in the affirmative.

       The defendant does not object to the admission of any statements in particular, but rather to any hearsay statement made within this portion of Murphy’s testimony.

       We note that “[i]n order to establish reversible error on evidentiary impropriety . . . the defendant must prove both an abuse of discretion and a harm that resulted from such abuse.” (Internal quotation marks omitted.) State v. Cecil J., 291 Conn. 813, 819, 970 A.2d 710 (2009).


author: ALVORD, J. PELLEGRINO, J.,

text:
    MADELINE MCDERMOTT, ADMINISTRATRIX (ESTATE OF WILLIAM MCDERMOTT), ET AL. v. STATE OF CONNECTICUT
    (AC 34255)
    Robinson, Alvord and Pellegrino, Js.

      Argued March 13
    officially released August 20, 2013

      Michael R. Butters, assistant attorney general, with whom were MaiteBarainca, assistant attorney general, and, on the brief, George Jepsen, attorney general, for the appellant (state).

      William F. Gallagher, with whom, on the brief, were HughD. Hughes and Thomas McNamara, for the appel-lees (plaintiffs).
   Opinion

ALVORD, J.

The defendant, the state of Connecticut, appeals from the judgment of the trial court, rendered after a bench trial, in favor of the plaintiffs, Madeline McDermott, both individually and in her capacity as administratrix of the estate of her late husband, William McDermott (decedent). On appeal, the defendant claims that the court improperly (1) determined the scope of the duty of care that it owed the decedent, (2) concluded that it had breached the duty of care owed to the decedent, and (3) concluded that the decedent’s death was proximately caused by the conduct of the defendant’s employees. We reverse the judgment of the trial court.

The following facts were found by the court or are not disputed. On February 8, 2005, employees from the defendant’s Department of Transportation were dispatched to Cromwell to remove a fifty-five foot sugar maple tree that was located on a grass strip bounded easterly by Main Street and westerly by a pedestrian* sidewalk. Upon arrival, the work crew, consisting of six men, marked the work site with two traffic cones that were placed on the sidewalk. One cone was located approximately eighty-five feet to the south of the tree, and the other cone was located approximately one hundred feet to the north of the tree. The two cones were not moved during the course of the tree removal operation.

The crew then proceeded to remove the limbs from the tree. After the “limbing” had been completed, the crew removed the remaining tree trunk in segments beginning at the top and progressing downward, a procedure known as “chunking.” At approximately 1:30 p.m., the decedent, a pedestrian with no connection to the removal operation, approached the work site. He walked approximately thirty feet past the southern sidewalk cone and stood between two members of the work crew. At that point, the three men were approximately fifty-five feet from the surface of the tree, which was now approximately twenty-five feet in height. They watched as another crew member in a bucket truck prepared to remove an additional ten foot chunk from the tree trunk. One end of a rope was tied to the top of the remaining tree, and the other end of the rope was tied to a pickup truck. After appropriate cuts were made in the tree, the pickup truck pulled the trunk segment in a southerly direction. The tree segment fell to the ground in a controlled manner and landed in the general area in which it was anticipated to fall.

When the trunk segment hit the ground, however, it fell on one of the limbs that previously had been removed from the tree. The limb, described as a log approximately twenty-five inches in length, was propelled into the air by the force of the falling trunk segment, and it flew at great speed and a low trajectory toward the decedent and the two crew members. The log struck the decedent’s forehead. He fell backward and hit the back of his head on the sidewalk. After striking the decedent, the log continued to travel more than thirty additional feet and came to rest approximately ninety feet from the tree. The decedent died as the result of being hit by the log, either by the force of the log’s impact with his forehead or by hitting the back of his head on the sidewalk after the impact caused him to fall backward. The plaintiff commenced this action against the defendant, seeking damages for wrongful death and loss of consortium, after permission to sue the state had been granted by the claims commissioner pursuant to General Statutes § 4-160 et seq.

By agreement of the parties, the court bifurcated the liability and damages phases of the trial. After seven days of evidence, the court issued a memorandum of decision on June 15,2011, concluding that the defendant was liable to the plaintiff on both counts of her complaint. In that decision, the court made the following determinations: (1) the exact circumstances of the decedent’s death were not reasonably foreseeable because there was no evidence that anyone had ever been killed or injured in such a manner from such a distance during a tree removal operation; (2) the prevailing safety standard in the tree removal industry is that persons who are not directly involved in cutting the tree should stand at least two tree lengths away from the tree; (3) the decedent was standing more than two tree lengths away from the remaining tree trunk when he was struck by the log; (4) the prevailing safety standard did not absolve the defendant from liability because “ ‘[ejvidence of custom in the trade ... is not conclusive’ ”; (5) the fact that the decedent was standing within the area marked by the sidewalk traffic cones was the “determinative” factor in this case; (6) although the cones could have been moved closer to the tree as chunks of the tree trunk were removed, the crew did not move the cones and the defendant “voluntarily assumed a duty that may not have been legally imposed upon it otherwise”; (7) “requiring work crews to keep bystanders and pedestrians out of work zones that they themselves have established is entirely consistent with the public policy favoring a safe populace and a realistic vision of acceptable risk”; (8) in demarcating the limits of the work zone with the traffic cones, the work crew established the limits of its duty to the decedent; (9) the defendant violated that duty of care by allowing the decedent to stand within the demarcated work zone during the tree removal operation; and (10) the defendant’s violation of that duty of care proximately caused the decedent’s death. The court subsequently held a hearing in damages and awarded the plaintiff $46,371.65 in economic damages, $825,000 in noneconomic damages, and $435,000 in damages for loss of consortium. This appeal followed.

I

The defendant’s first claim is that the trial court improperly determined the scope of the duty of care that it owed the decedent. Specifically, the defendant argues that the court erroneously framed the duty of care issue as follows: “[D]id the members of the work crew have a duty to require [the decedent] to move to a location beyond the sidewalk cone . . . The defendant concedes that it had a duty of care to members of the general public during the tree removal operation, but claims that the duty owed was “to exercise reasonable care for the safety of the general public.” It claims that it met that duty by keeping the decedent and other members of the general public a distance of more than two tree lengths from the remaining tree and that the decedent was in a safe location irrespective of the placement of the cones.

“The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury. . . . Contained within the first element, duty, there are two distinct considerations. . . . First, it is necessary to determine the existence of a duty, and [second], if one is found, it is necessary to evaluate the scope of that duty. . . . The issue of whether a duty exists is a question of law . . . which is subject to plenary review. We sometimes refer to the scope of that duty as the requisite standard of care.” (Citations omitted; internal quotation marks omitted.) LePage v. Horne, 262 Conn. 116, 123, 809 A.2d 505 (2002).

“Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action. . . . Thus, [t]here can be no actionable negligence . . . unless there exists a cognizable duty of care. . . . [T]he test for the existence of a legal duty entails (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case.” (Internal quotation marks omitted.) Mazurek v. Great American Ins. Co., 284 Conn. 16, 29, 930 A.2d 682 (2007). With respect to the foreseeability element, the fact finder must consider whether the defendant knew, or should have known, that the situation at hand would obviously and naturally, even though not necessarily, expose the plaintiff to probable harm unless preventive measures were taken. See LePage v. Horne, supra, 262 Conn. 124.

In the present case, as found by the court, all of the tree’s limbs and several segments of the tree trunk had been removed before the decedent approached the work site. Although the log that struck the decedent remained by the tree, it was not standard industry practice to remove all “limbing debris” prior to the “chunk-ing” operation. The court expressly determined that “there was no evidence that anyone had ever been killed or injured in such a manner from such a distance during a tree removal operation.” The court further stated that the decedent, when struck by the log, was standing in an area “considered [to be] a safe distance [from the tree removal operation] according to the safety standard that prevails in the tree removal industry.” The cones, set up before the operation began, could have been moved closer to the tree as segments of the tree trunk were removed and been in compliance with the industry standards or rules. Because the work crew left the cones in their original locations, however, the court determined that the decedent was standing within the “work zone” that had been established by the work crew, even though that work zone “exceeded the industry standard.” The court concluded that “[i]n setting the perimeter of the work zone, the work crew voluntarily assumed a duty that may not have been legally imposed upon it otherwise.”

We agree with the defendant that the duty of care owed to the decedent and other members of the general public was to keep them a reasonably safe distance away from the tree removal operation. Although we agree with the court that, under certain circumstances, a party may voluntarily assume a duty that otherwise may not have been legally imposed, we disagree with the court that the defendant in the present case assumed the duty to remove the decedent from the area in which he was standing simply because of the location of the cones.

The court, in reaching its conclusion that the defendant voluntarily assumed a greater duty of care beyond that legally imposed by marking a work site in excess of industry standards, relied on a Superior Court decision that cited § 323 of the Restatement (Second) of Torts. Section 323 provides that “[o]ne who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking.” 2 Restatement (Second), Torts, Standard of Conduct § 323, p. 135 (1965).

In its memorandum of decision, the court did not find that the decedent relied upon the placement of the cones when he walked within the area to stand with the crew members. Further, the court did not find that the risk of harm of being hit by tree debris had increased because the southerly cone, instead of being placed fifty feet from the tree in accordance with industry standards, was placed eighty-five feet from the tree in excess of industry standards. The decedent was standing fifty-five feet from the tree when hit. The log traveled more than ninety feet, which was further than even the “voluntarily assumed” coned demarcations of the work site.

The court’s factual findings in this case are not supportive of its determination with respect to the scope of the duty owed by the defendant to the decedent. The court concluded that the defendant’s duty was to prevent the decedent from walking past the cone, even though the court found that the decedent was standing within an area considered appropriate by industry standards and that the log that struck him traveled beyond the coned area. The court essentially imposed strict liability on the defendant for any harm that occurred within the coned area.

n

The defendant also claims that the trial court improperly concluded that the decedent’s death was proximately caused by the conduct of the defendant’s employees in failing to remove him from the area marked by the cones. We agree.

“Causation is an essential element of a cause of action in negligence. ... [A] plaintiff must establish that the defendant’s conduct legally caused the injuries. . . . The first component of legal cause is causation in fact. Causation in fact is the purest legal application of . . . legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor’s conduct. . . . The second component of legal cause is proximate cause .... [T]he test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiffs injuries. . . . Further, it is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendant’s conduct]. . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection. . . . This causal connection must be based upon more than conjecture and surmise.” (Citation omitted; internal quotation marks omitted.) Kumah v. Brown, 130 Conn. App. 343, 347, 23 A.3d 758 (2011), aff'd, 307 Conn. 620, 58 A.3d 247 (2013).

“Proximate cause establishes a reasonable connection between an act or omission of a defendant and the harm suffered by a plaintiff. . . . Proximate cause serves to [temper] the expansive view of causation [in fact] ... by the pragmatic . . . shaping [of] rules which are feasible to administer, and yield a workable degree of certainty. ... In other words, legal cause can be portrayed pictorially as a Venn diagram, with the circle representing cause in fact completely subsuming the smaller circle representing proximate cause, which specifically focuses on that which we define as legal causation. [Our Supreme Court] has defined proximate cause as [a}n actual cause that is a substantial factor in the resulting harm . . . .” (Citations omitted; emphasis in original; internal quotation marks omitted.) Stewart v. Federated Dept. Stores, Inc., 234 Conn. 697, 606, 662 A.2d 763 (1995).

The negligent conduct of the defendant, as found by the court, was allowing the decedent to stand in an area within the work zone demarcated by the southerly cone even though there had been no violation of industry standards or rules. The court acknowledged that the “specific event that caused [the decedent’s] death was not legitimately foreseeable” and that there was “no evidence that anyone had ever been killed or injured in such a manner from such a distance during a tree removal operation.” These factual findings are amply supported by the record. A “defendant [is] not required to take precautions against hazards too remote to be reasonably foreseeable.” Roy v. Friedman Equipment Co., 147 Conn. 121, 124, 157 A.2d 599 (1960). “Sometimes, accidents happen without negligence.” Carrasquillo v. Carlson, 90 Conn. App. 705, 707, 880 A.2d 904 (2005).

Despite these findings, the court nevertheless determined that the defendant was hable for the decedent’s death. Such a liability determination compehed the conclusion that the defendant’s failure to remove the decedent from the area in which he was standing was the proximate cause of the decedent’s death. We disagree with that conclusion for the reasons already discussed. The question of proximate cause is generally a factual issue. It becomes a question of law, however, when the mind of a fair and reasonable person could reach only one conclusion. Under the circumstances of this case, we conclude that the issue of proximate cause is a question of law and that the defendant’s conduct was not the proximate cause of the decedent’s death. See Doe v. Manheimer, 212 Conn. 748, 757, 563 A.2d 699 (1989), overruled in part on other grounds by Stewart v. Federated Dept. Stores, Inc., supra, 234 Conn. 608; Hughes v. National Car Rental Systems, Inc., 22 Conn. App. 586, 590, 577 A.2d 1132, cert. denied, 216 Conn. 817, 580 A.2d 57 (1990).

The judgment is reversed and the case is remanded with direction to render judgment in favor of the defendant.

In this opinion ROBINSON, J., concurred.

PELLEGRINO, J.,

dissenting. I regret that I do not agree with the opinion of the majority, and respectfully, I feel compelled to file this dissent.

The critical facts, as set forth more fully in the majority’s opinion, are not in dispute. Employees of the Department of Transportation of the defendant, state of Connecticut, were in the process of removing a tree. At the beginning of the tree removal operation, the work crew marked off a work zone with traffic cones. One cone was located approximately eighty-five feet to the south of the tree, and the other cone was located approximately one hundred feet to the north of the tree. The decedent, William McDermott, a bystander, walked past the southern cone into the delineated work zone and stood talking with two members of the work crew approximately fifty-five feet from the surface of the tree, which at that point was twenty-five feet tall. There was no evidence that the workers asked the decedent to leave the work zone at any time. While the decedent was standing with the work crew, a segment of the tree trunk was cut from the tree and fell to the ground; upon hitting the ground, it struck a log that previously had been removed from the tree. The log was propelled into the air, and it struck the decedent, causing him to fall backward and hit the back of his head on the sidewalk. After striking the decedent, the log continued in the air approximately another thirty feet and eventually came to rest almost ninety feet from the tree.

I agree with the trial court that the defendant had a duty to protect members of the public from foreseeable harm within the coned work zone it had created, and, accordingly, that the determinative fact in this case is that the decedent was standing within the perimeter of the work zone at the time he was struck by the log. The majority disagrees, holding that notwithstanding the placement of the cones, the defendant only owed a duty to the decedent and other members of the public to keep them a “reasonably safe distance away” from the tree being removed—as informed by industry standards in the field of tree care and removal. The majority, therefore, attaches greater significance to the fact that the decedent was fifty-five feet away from the tree at the time he was struck by the log, or, five feet beyond the prevailing “two tree lengths” standard for persons not directly involved in a tree removal operation. This formulation of the defendant’s duty effectively elevates industry custom for workers to a conclusive standard of liability for the general public and renders irrelevant the voluntary actions of the work crew in marking the perimeter for their removal operation. In my view, this result is not in keeping with our precedent and well established principles of negligence law. See, e.g., Coburn v. Lenox Homes, Inc., 186 Conn. 370, 381, 441 A.2d 620 (1982) (evidence of custom in trade “may be admitted on the issue of the standard of care, but is not conclusive”).

Moreover, I agree with the trial court that the defendant’s failure to remove the decedent from the work zone proximately caused the decedent’s death. Although the majority characterizes proximate cause in this case as a question of law, our Supreme Court has cautioned that proximate cause “becomes a conclusion of law only when the mind of a fair and reasonable man could reach only one conclusion; if there is room for a reasonable disagreement the question is one to be determined by the trier as a matter of fact.” (Internal quotation marks omitted.) Trzcinski v. Richey, 190 Conn. 285, 295, 460 A.2d 1269 (1983). Because I believe that there is room for “reasonable disagreement” here, I would defer to the factual finding of the trial court on proximate cause, which was not clearly erroneous in view of the evidence in the record. See, e.g., Hernandez v. Dawson, 109 Conn. App. 639, 641-42, 953 A.2d 664 (2008) (In reviewing findings of fact on proximate cause, “our review is limited to deciding whether such findings were clearly erroneous. A finding of fact is clearly erroneous when there is no evidence in the record to support it.” [Internal quotation marks omitted.]).

In short, I agree with the trial court that the defendant assumed a duty to the decedent, that the defendant breached that duty, and that the defendant’s breach of duty proximately caused the decedent’s death. I therefore respectfully dissent, and would affirm the judgment of the trial court.

       For convenience, we refer to Madeline McDermott in both capacities as the plaintiff.

       Because we conclude that the court erroneously determined the scope of duty owed to the decedent and that the defendant’s conduct was not the proximate cause of the decedent’s death, we do not reach the defendant’s second claim.

       As noted in our case law, the duty inquiry relating to the attenuation between the harm to the plaintiff and the defendant’s alleged negligent conduct is quite similar to the analysis undertaken with respect to the third element of negligence, proximate cause. “[T]he question whether there is a duty has most often seemed helpful in cases where the only issue is in reality whether the defendant stands in any such relation to the plaintiff as to create any legally recognized obligation of conduct for the plaintiffs benefit. Or, reverting again to the starting point, whether the interests of the plaintiff are entitled to legal protection at the defendant’s hands against the invasion which has in fact occurred. Or, again reverting, whether the conduct is the proximate cause of the result. The circumlocution is unavoidable, since all of these questions are, in reality, one and the same. W. Prosser & W. Keeton, [Torts (5th Ed. 1984)] § 42, p. 274; see also id., § 53, p. 358.” (Internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 574 n.9, 717 A.2d 215 (1998).

         The court noted that “ ‘ [e] vidence of custom in the trade may be admitted on the issue of standard of care, but it is not conclusive.’ ” The court was referring to an industry standard promulgated by the International Society of Arboriculture and approved by the American National Standards Institute (institute). The institute’s standards, according to the plaintiffs expert, are the nationally recognized arboriculture standards and are applicable to all tree care related work. Section 9.5.12 of the American National Standard for Arboricultora! Operations provides: “Workers not directly involved in manual land-clearing operations shall be at least two tree lengths away from the tree or trunk being dropped.” There is no institute standard addressed directly to bystander nonworkers, but the court found that the two tree length rule was applicable to this situation, and the parties do not challenge that determination.
      We note that the court never opined that the industry standard of two tree lengths from the tree cutting operation was not reasonable. When the court noted that evidence of the custom of the trade may not be conclusive, it referenced, inter alia, comment (c) of § 295A of the Restatement (Second) of Torts. Section 295A provides: “In determining whether conduct is negligent, the customs of the community, or of others under like circumstances, are factors to be token into account, but are not controlling where a reasonable man would not follow them.” 2 Restatement (Second), Torts, Standard of Conduct § 295A, p. 62 (1965). Comment (c) of § 295A provides in relevant part: “Customs which are entirely reasonable under the ordinary circumstances which give rise to them may become quite unreasonable in the light of a single fact in the particular case.” Id., § 295A, comment (c), p. 63. The trial court did not find § 9.5.12 of the American National Standard for Arboricultural Operations unreasonable under the circumstances of this case, but, rather, determined that the defendant had assumed a greater duty of care by allowing the decedent to stand within the area marked by the cones as placed by the work crew prior to the tree removal operation.

       The Superior Court’s standard civil jury instruction 3.6-8, the notes to which cite to § 323 of the Restatement (Second) of Torts, provides: “A person who voluntarily performs an act, without legal obligation to do so, has the same duty of care in performing that act that any other person would have under the same circumstances. That duty is the duty to use reasonable care under the circumstances.” Connecticut Civil Jury Instructions 3.6-8 (revised January 1, 2008), available at http://www.jud.ct.gov/JI/ civil/part3/3.6-8.htm (last visited August 6, 2013).

       “In so far as the defendant is held liable for consequences which do not lie within the original risk which the defendant has created, a strict liability without fault is superimposed upon the liability that is logically to be attributed to the negligence itself.” (Internal quotation marks omitted.) Lodge v. Arett Sales Corp., 246 Conn. 563, 575 n.10, 717 A.2d 215 (1998).

       The trial court, after reciting the four essential elements in a negligence case, determined that the only issues to be resolved were (1) whether the defendant owed the decedent a duty to remove him from the location beyond the sidewalk cone and (2) whether the failure to do so constituted a breach of that duty. The court did not undertake a proximate cause analysis. Instead, in footnote 3 of its memorandum of decision, the court stated: “As relates to the other elements of the negligence claim, the evidence clearly demonstrated that the log was the proximate cause of [the decedent’s] death.” The question as to proximate cause, however, should have been whether the defendant’s conduct, in permitting the decedent to remain within the area marked by the cones, was a substantial factor in bringing about the decedent’s death. See Malloy v. Colchester, 85 Conn. App. 627, 634, 858 A.2d 813, cert. denied, 272 Conn. 907, 863 A.2d 698 (2004).

       “Because actual causation, in theory, is virtually limitless, the legal construct of proximate cause serves to establish how far down the causal continuum tortfeasors will be held liable for the consequences of their actions. . . . The fundamental inquiry of proximate cause is whether the harm that occurred was within the scope of foreseeable risk created by the defendant’s negligent conduct.” (Internal quotation marks omitted.) Malloy v. Colchester, 85 Conn. App. 627, 633, 858 A.2d 813, cert. denied, 272 Conn. 907, 863 A.2d 698 (2004).

       At trial, work crew members testified that they believed that the decedent and the two employees standing next to him were in a safe area, that there was no concern that they could be hit by tree debris and that they had never seen a piece of a tree propelled out in such a manner before the day of the incident. The defendant’s director of public safety and the defendant’s expert, aboard certified master arborist, likewise testified that the decedent was in a safe area, that none of the defendant’s standard protocols had been violated, and that no similar situations had occurred in which a tree limb traveled so far and in such a manner to cause injuries.

       I note that § 9.5.12 of the American National Standard for Arboricultural Operations, which was approved by the American National Standards Institute, provides that “[wjorkers not directly involved in manual land-clearing operations shall be at least two tree lengths away from the tree or trunk being dropped.” (Emphasis added.) The decedent, a bystander, was standing a mere five feet beyond this minimum standard for nonworkers at the time of the incident. Furthermore, the trial court never made a finding that the two tree lengths standard established what constitutes a “reasonably safe” distance from the tree—the court simply noted that two tree lengths is “considered a safe distance according to the safety standard that prevails in the tree removal industry” and found that the decedent was more than two tree lengths away from the tree when he was struck by the log.

       I am not swayed by the majority’s concern that, by focusing on the placement of the cones instead of on industry safety standards, the “court essentially imposed strict liability on the defendant for any harm that could have occurred within the coned area.” The trial court did not hold that the defendant would have been liable for any injury occurring within the delineated work zone; rather, the defendant’s liability extended only to reasonably foreseeable injuries—those stemming from the tree removal operation and occurring within the marked perimeter of the removal site.

       I agree with the majority that the trial court, in afootnote in its memorandum of decision, incorrectly identified “the log”—rather than the defendant’s failure to remove the decedent from the coned work zone—as the proximate cause of the decedent’s death. I do not, however, agree with the majority’s assessment that the trial court did not undertake any further proximate cause analysis in the memorandum of decision. In my view, the trial court appropriately analyzed the causation issues in conjunction with its determination of the scope of the defendant’s duty. Indeed, as the majority recognized, the duty and proximate cause inquiries “ ‘are, in reality, one and the same.’ ” Furthermore, in its concluding paragraph, the trial court appropriately tied the defendant’s conduct to the proximate cause inquiry, stating: “Allowing [the decedent] to stand within [the work] zone for an extended period of time during tree removal operations was a negligent violation of [the defendant’s] duty; a violation that proximately caused [the decedent’s) death." (Emphasis added.)