source: Caselaw Access Project

author: MIHALAKOS, J.

license: Public Domain

text:
    DOW-WESTBROOK, INC. v. CANDLEWOOD EQUINE PRACTICE, LLC
    (AC 29982)
    DiPentima, Robinson and Mihalakos, Js.
    Argued September 24, 2009
    officially released March 9, 2010

      Bernadette M. Keyes, with whom was Shari Ann Murphy, for the appellant (plaintiff).

      Ralph G. Eddy, with whom, on the brief, was David A. Estabrook, for the appellee (defendant).
   Opinion

MIHALAKOS, J.

The plaintiff, Dow-Westbrook, Inc., appeals after a trial to the court, from the judgment in favor of the defendant, Candlewood Equine Practice, LLC (Candlewood Equine), finding that the defendant was not negligent as a result of injuries suffered by the plaintiffs horse, Eiffel Tower, at the defendant’s veterinary clinic. On appeal, the plaintiff argues that the court erred by finding (1) in favor of the defendant on the plaintiff’s negligence claims in that the finding was against the weight of the evidence, (2) that the parties’ hold harmless agreement, signed by the plaintiff, waived liability and (3) that the plaintiff’s expert witness was not qualified to testify. We affirm the judgment of the trial court.

The court found the following facts. The plaintiff, a corporation owned by Jane Dow-Burt, owns a riding stable in Westbrook known as the Westbrook Hunt Club. The defendant, a limited liability company owned by Ronald Emond, a veterinarian, operates a veterinary clinic in Bridgewater, specializing in equine reproduction.

In 2001, the plaintiff purchased a mare known as Eiffel Tower for $5000. Dow-Burt testified that she used Eiffel Tower for riding lessons and a few horse shows. Due to a head injury sustained years prior while the horse was being cross-tied, Eiffel Tower had a dis-cemable head tilt. On April 10, 2004, Eiffel Tower was transported from the Westbrook Hunt Club to Candle-wood Equine by Darren Tiadore, a horse trainer employed by the plaintiff, and Dow-Burt’s husband, Thomas Burt. Thomas Burt testified that he was a retired building contractor and was not knowledgeable about equine matters. Eiffel Tower was to be bred by artificial insemination at the defendant’s clinic using frozen semen from the stallion “Rodney.”

Upon delivering Eiffel Tower to the defendant, Tia-dore had a conversation with Emond regarding Eiffel Tower, the substance of which is disputed by the parties. At trial, Thomas Burt testified that Tiadore specifically told Emond that Eiffel Tower was not to be turned out with other horses. In contrast, Emond testified that Tiadore apologized to him for the horse’s appearance, stating that Eiffel Tower was not properly groomed and had just been pulled out of a field with other horses. He also testified that Tiadore told him not to worry about Eiffel Tower’s appearance because the plaintiffs intent was that the horse be used as a broodmare. The only additional instructions came from Dow-Burt, who wrote, “careful on crossties she’s good, but had an accident—8-10 yrs. ago,” on the defendant’s boarder agreement, in the section for special handling instructions.

While Eiffel Tower was at Candlewood Equine, the defendant made three attempts to artificially inseminate her, on April 17, May 25 and July 14, 2004. During this time, Eiffel Tower was turned out with another broodmare, Anna, from April 10 until June 2, 2004, the date it was alleged that Anna kicked Eiffel Tower in the right hind leg, dislocating Eiffel Tower’s hock. Eiffel Tower remained at Candlewood Equine until August 5, 2004, when she was brought back to Westbrook Hunt Club. She stayed there until June 28, 2005, when she was sold for $1 as a companion animal.

The plaintiff subsequently filed suit, alleging that the defendant was negligent in turning out the plaintiffs horse with another horse and that the defendant failed to supervise properly and to provide professional care for the horse, constituting a breach of the boarder agreement. The defendant filed a counterclaim seeking indemnification of its attorney’s fees, alleging that the plaintiff breached the hold harmless provision of the boarder agreement by filing suit. In the court’s memorandum of decision filed May 14, 2008, judgment was rendered in favor of the defendant on the plaintiffs complaint and on the defendant’s counterclaim in the amount of $15,000. This appeal followed. Additional facts will be provided as necessary.

I

The plaintiff first claims that the court’s judgment in favor of the defendant on the plaintiffs negligence claims was against the weight of the evidence. We disagree.

We begin by setting forth our standard of review. “On appeal, [o]ur function ... is not to examine the record to see if the trier of fact could have reached a contrary conclusion. . . . Rather, it is the function of this court to determine whether the decision of the trial court is clearly erroneous. . . . This involves a two part function: where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision; where the factual basis of the court’s decision is challenged we must determine whether the facts set out in the memorandum of decision are supported by the evidence or whether, in light of the evidence and the pleadings in the whole record, those facts are clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citation omitted; internal quotation marks omitted.) Lewis v. Frazao Building Corp., 115 Conn. App. 324, 329, 972 A.2d 284 (2009).

The plaintiff alleges that the defendant was negligent in turning out Eiffel Tower because a reasonable person would not have done so. According to the plaintiff, Tiadore warned Emond not to turn out Eiffel Tower, and, alternatively, had he failed to warn Emond, the defendant was negligent in turning the horse out without first inquiring about any potential risk. In addition, the plaintiff alleges that the court’s judgment was against the weight of the evidence because the defendant admitted negligence when he filed a claim with his insurance provider.

As the trier of fact, the court was within its discretion to believe Emond’s testimony regarding his conversation with Tiadore and to discredit the testimony of Thomas Burt. Dow-Burt testified at her deposition on September 24, 2007, that she did not know what special instructions Tiadore gave Emond when Tiadore delivered Eiffel Tower. The court also pointed out Dow-Burt’s admission that, upon learning of the injury to Eiffel Tower, it would have been natural to question her husband about whether any special instructions regarding toning out were given to the defendant. Further, Dow-Burt could have easily warned the defendant not to turn out Eiffel Tower in the special instructions section of the boarder agreement. She chose not to do so. The combination of Dow-Burt’s testimony, coupled with her failure to give any instructions regarding turning out, led the court to find Thomas Burt’s testimony implausible.

Furthermore, the court’s determination that the defendant did not violate any standard of care was not against the weight of the evidence. Both Jonathan Davis, a veterinarian, who operates a large equine reproductive clinic in New York, and Emond testified at trial regarding the standard of care. Davis testified that unless a horse’s owner had given instructions otherwise, it is standard practice to turn mares out together while they are at a veterinary facility for breeding purposes. According to Davis, turning out two mares together produces a calming effect and facilitates the breeding process. Additionally, he testified that horses sometimes injure themselves when they are turned out by themselves, making it difficult to predict whether herd turnout increases the likelihood of an injury.

Consequently, the defendant took reasonable precautions to prevent an altercation between Eiffel Tower and Anna. Davis testified that before a stable turns two horses out together, someone must supervise their interaction to make sure that they get along. Emond testified that upon arrival, Eiffel Tower was put directly into a stall with another horse, and she was supervised when she was introduced to her pasture mate, Anna. The court properly concluded that there was no credible evidence that the defendant violated any prevailing standard of care in veterinary medicine with respect to Eiffel Tower.

Finally, the plaintiff claims that the defendant admitted negligence by filing a report of claim form after the injury to Eiffel Tower. The plaintiff contends that the defendant admitted negligence on this form, and, therefore, the court’s judgment in favor of the defendant is against the weight of the evidence. While the plaintiffs argument has some merit, we cannot find that, in light of all the evidence available, the court’s decision was against the weight of the evidence.

“Because it is the trial court’s function to weigh the evidence and determine credibility, we give great deference to its findings. ... In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. . . . Instead, we make every reasonable presumption ... in favor of the trial court’s ruling.” (Internal quotation marks omitted.) New Hartford v. Connecticut Resources Recovery Authority, 291 Conn. 433, 487, 970 A.2d 592 (2009).

The insurance form in question is from the defendant’s professional liability policy. The claim form states, “[d]o you consent to payment of this claim,” and the defendant checked the “yes” box. Just below, the form states, “[i]f you marked yes or uncertain, please explain why you feel you were negligent in the care you provided in the space below.” In that space, the defendant typed, “[s]ee attached letter” and attached a description of the incident.

Nevertheless, the defendant asserts that he never intended to admit negligence on that form.* **** Rather, the defendant maintains that his intention was to submit a claim for reimbursement under his professional extension coverage, a separate policy to cover monetary loss with respect to accrued but unpaid charges. Pursuant to the professional extension coverage form-bailee supplement, coverage includes “monetary loss to the [i]nsured of accrued but unpaid charges made by the [i]nsured, when such charges are rendered uncollectable by reason of a covered loss or damages to insured property.” According to the policy language, it was not necessary for the defendant to admit negligence in order to collect under that policy.

Although the defendant may have unintentionally admitted negligence on the form, the court is the sole arbiter of the credibility of witnesses and the weight to be given specific evidence. New Hartford v. Connecticut Resources Recovery Authority, supra, 291 Conn. 487. We must give great deference to the court’s factual findings. Id. Based on the facts established at trial, the court determined that the defendant was not negligent. In light of the entire record before us, we find that the court’s determination was not clearly erroneous.

II

The plaintiff also claims that the court erred in determining that, in support of the defendant’s counterclaim, the “hold harmless” clause of the boarder agreement was valid. We disagree.

We must first set forth the standard of review for the plaintiffs claim. We are called on to construe whether the court properly gave effect to the hold harmless provision of the boarder agreement signed by the parties. “Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. . . . [T]he interpretation and construction of a written contract present only questions of law, within the province of the court ... so long as the contract is unambiguous and the intent of the parties can be determined from the agreement’s face. . . . [T]he construction and legal effect of the contract [is] a question of law for the court.” (Citations omitted; internal quotation marks omitted.) Short v. Connecticut Bank & Trust Co., 60 Conn. App. 362, 367, 759 A.2d 129 (2000). Although the parties disagree as to the legal effect of the boarder agreement, neither claims that the language is ambiguous. Accordingly, our review of this question of law is plenary. See id.

Connecticut courts generally disfavor hold harmless provisions as against public policy. “[T]he law does not favor contract provisions which relieve a person from his own negligence . . . .” (Internal quotation marks omitted.) Reardon v. Windswept Farm, LLC, 280 Conn. 153, 159, 905 A.2d 1156 (2006). Our courts are careful not to allow hold harmless provisions to preclude recovery where there is unequal bargaining power between contracting parties. See Hanks v. Powder Ridge Restaurant Corp., 276 Conn. 314, 333-34, 885 A.2d 734 (2005).

Nonetheless, our courts have recognized the enforceability of hold harmless provisions releasing a defendant from liability for his own negligence where the parties to the contract are both commercial entities. Dwight Building Co. v. Stamford House Wrecking Co., 193 Conn. 297, 301-302, 476 A.2d 568 (1984); B & D Associates, Inc. v. Russell, 73 Conn. App. 66, 72-73, 807 A.2d 1001 (2002); Burkle v. Car & Truck Leasing Co., 1 Conn. App. 54, 57-58, 467 A.2d 1255 (1983). “In modem commerce, indemnity clauses are no longer so unusual as to require such specific mention of the indemnitee’s conduct as being within the scope of the indemnifying obligation. . . . Indemnity clauses in contracts entered into by businesses . . . should be viewed realistically as methods of allocating the cost of the risk of accidents apt to arise from the performance of the contract.” (Citation omitted; internal quotation marks omitted.) Laudano v. General Motors Corp., 34 Conn. Sup. 684, 687, 388 A.2d 842 (1977).

On April 14, 2004, Dow-Burt, president of the plaintiff corporation, signed the boarder agreement that had been faxed to her by the defendant. The release and hold harmless provision on which the defendant relies in its counterclaim is contained within that boarder agreement. As the court reasoned, both the plaintiff and the defendant are commercial entities similar in experience and sophistication. The plaintiff is a corporation in business since 1967, whose president, Dow-Burt, is a college graduate. The plaintiff runs a horse farm that boards and trains horses, provides riding lessons and hosts regular horse shows. The defendant is a coiporation that boards horses and provides veterinary and horse breeding services.

In the present case, the hold harmless provision was an agreement to allocate a predictable risk between two commercial entities of equal bargaining power, and the provision was not an attempt to limit liability for personal injuries. In fact, the plaintiff regularly requires its own riding and horse show clients to sign documents containing hold harmless clauses very similar to the defendant’s.* Although Dow-Burt asserted that she did not read the hold harmless provision of the defendant’s boarder agreement before signing it, she also admitted that she was familiar with the language, as she has used nearly identical provisions in her own agreements at Westbrook Hunt Club for “probably ten years or so.” During cross-examination, Dow-Burt acknowledged that her corporation has legal counsel to call if any legal questions arise during the course of business, and at no point in her testimony did Dow-Burt assert that she did not understand the language of the agreement.

The defendant’s boarder agreement required the plaintiff to acknowledge that there was inherent risk in managing and handling horses and required the plaintiff to release and to hold the defendant harmless from all damages associated with the horse unless caused by “gross negligence or willful misconduct.” Thus, by signing the agreement, the plaintiff agreed to hold the defendant harmless for any injuries to Eiffel Tower, unless caused by the gross negligence or wilful misconduct of the defendant.

In addition, the court heard evidence that the plaintiff could have had Eiffel Tower inseminated at a different stable. Even if the plaintiff specifically required that Eiffel Tower be inseminated by the stallion Rodney, Emond testified that the defendant could have packaged and shipped the semen for use at another veterinary facility by a different veterinarian. In essence, the plaintiff was never faced with the type of “take it or leave it” approach often found in cases of unequal bargaining power. See Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 333. The facts established by the court lead us to conclude that the plaintiff had commercial experience similar to and bargaining power equal to that of the defendant when the plaintiff signed the defendant’s boarder agreement.

Moreover, the plaintiff argues that the hold harmless provision of the agreement should be void as against public policy. We disagree. “Although it is well established that parties are free to contract for whatever terms on which they may agree ... it is equally well established that contracts that violate public policy are unenforceable. . . . [T]he question [of] whether a contract is against public policy is [a] question of law dependent on the circumstances of the particular case, over which an appellate court has unlimited review. . . . Thus, it is consistent with public policy to posit the risk of negligence upon the actor and, if this policy is to be abandoned, it has generally been to allow or require that the risk shift to another party better or equally able to bear it, not to shift the risk to the weak bargainer.” (Citations omitted; internal quotation marks omitted.) Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 326-27.

“A frequently cited standard for determining whether exculpatory agreements violate public policy was set forth by the Supreme Court of California in Tunkl v. Regents of the University of California, [60 Cal. 2d 92, 98-101, 383 P.2d 441, 32 Cal. Rptr. 33 (1963)]. In Tunkl, the court concluded that exculpatory agreements violate public policy if they affect the public interest adversely; id., at 96-98; and identified six factors (Tunkl factors) relevant to this determination: ‘[1] [The agreement] concerns a business of a type generally thought suitable for public regulation. [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.’ Id., at 98-101. The court clarified that an exculpatory agreement may affect the public interest adversely even if some of the Tunkl factors are not satisfied.” Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 328.

In Hanks, our Supreme Court held that “[n]o definition of the concept of public interest can be contained within the four comers of a formula. . . . [T]he ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations. . . . Thus, our analysis is guided, but not limited, by the Tunkl factors, and is informed by any other factors that may be relevant given the factual circumstances of the case and current societal expectations.” (Citations omitted; internal quotation marks omitted.) Id., 330.

In the present case, the hold harmless provision does not violate public policy. As a general matter, horse breeding does not appreciably impact the health or safety of the general public. Also, horse breeding is not an essential practice. Most importantly, both the plaintiff and the defendant were commercial entities of equal knowledge and bargaining power. The decision to breed and to board a horse involves choosing a stable, a veterinarian, negotiating a price and the careful act of transporting a horse to the chosen stable. Unlike the decision to go snow tubing, as in Hanks, the plaintiff had other available veterinary options, and the choice to board Eiffel Tower with the defendant was most certainly carefully planned. The boarder agreement required the plaintiff to list detailed care and insurance information for Eiffel Tower, and the plaintiff complied with those requirements.

For the aforementioned reasons, we find that the hold harmless provision of the boarder agreement does not violate public policy. The court correctly determined that Dow-Burt released the defendant from the plaintiffs negligence claim when she signed the boarder agreement, which required a showing of gross negligence or wilful misconduct to hold the defendant liable. Therefore, the court properly awarded reasonable damages on the defendant’s counterclaim.

Ill

The plaintiffs final claim is that the court erred by failing to allow the plaintiffs expert witness, Brett Gaby, a veterinarian, to testify at trial. According to the court, the key issue in this case was the standard of care in allowing broodmares to be turned out together at a veterinary clinic. The court determined that although Gaby had some experience with equine reproduction, he specializes in lameness and was not qualified to testify regarding reproduction and the standard of care for turning out horses. We conclude that the court erred in failing to allow Gaby to testify; however, this error was harmless.

The following additional facts and procedural history are relevant to our resolution of the plaintiffs claim. Before trial, the plaintiff disclosed Gaby as its expert on the standard of care for turning out horses. Gaby has extensive education, training and experience in the area of equine medicine. He has a bachelor’s degree from Cornell University and received his doctorate in veterinary medicine from Mississippi State University. He is a member of both the American Veterinary Medical Association and the American Association of Equine Practitioners. Gaby worked as a clinical intern at Rochester Equine Clinic in Rochester, New Hampshire, and before opening his own practice, he worked at Boston Equine Associates for four years. In 2003, he opened his current practice, Essex Equine, LLC, in Bolton, Massachusetts, which consists of three veterinarians, focusing on reproduction, acupuncture, dentistry and lameness. Approximately 80 percent of Gaby’s current practice focuses on lameness.

In its amended expert witness disclosure, the plaintiff asserted that in light of these qualifications, Gaby was expected to testify as to the “applicable standard of care for taking care of mares in preparation for breeding, during the breeding process and subsequent thereto.” The plaintiff stated that “Gaby will testily that it was not reasonably prudent to turn out mares in heat together, especially during the period of time while the mares were being artificially inseminated. That by doing so placed the subject mares in harms way and ultimately [led] to a severe and permanent injury. That said injury effectively ended the mare’s career both as a performance horse and as a broodmare.” At trial, the court ruled that Gaby was unqualified to render an expert opinion as to the standard of care for turning out horses, citing Gaby’s specialty in lameness as the reason.

We begin our review of this issue by setting forth the well established standard of review regarding a trial court’s ruling on the admissibility of expert testimony. “[T]he trial court has wide discretion in ruling on the admissibility of expert testimony and, unless that discretion has been abused or the ruling involves a clear misconception of the law, the trial court’s decision will not be disturbed. ... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did. . . . Even if a court has acted improperly in connection with the introduction of evidence, reversal of a judgment is not necessarily mandated because there must not only be an evidentiary [impropriety], there also must be harm.” (Citations omitted; internal quotation marks omitted.) Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 157-58, 971 A.2d 676 (2009).

Our Supreme Court “recently articulated the test for the admission of expert testimony, which is deeply rooted in common law. Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues.” (Internal quotation marks omitted.) Id., 158; see also Conn. Code Evid. § 7-2. In other words, “[i]n order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion.” (Internal quotation marks omitted.) State v. Douglas, 203 Conn. 445, 452, 525 A.2d 101 (1987).

“It is well settled that [t]he true test of the admissibility of [expert] testimony is not whether the subject matter is common or uncommon, or whether many persons or few have some knowledge of the matter; but it is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue. . . . Implicit in this standard is the requirement . . . that the expert’s knowledge or experience must be directly applicable to the matter specifically in issue. ” (Citations omitted; internal quotation marks omitted.) Sullivan v. Metro-North Commuter Railroad Co., supra, 292 Conn. 158-59; see also State v. Douglas, supra, 203 Conn. 453 (“in order to be admissible, the proffered expert’s knowledge must be directly applicable to the matter specifically in issue”).

Resolution of the issue before us turns on whether Gaby was qualified to render an expert opinion on the turnout of horses. Gaby testified that he was familiar with turning out horses for breeding purposes. Although his current practice focuses mainly on lameness, he testified that he has worked with artificial insemination in the past and that he still does some breeding. Gaby further testified that he has been “involved in the design and layout of the turnout situation because it is, after all, [his] practice and [he has] veterinary support working under [him].” Gaby stated that he was familiar with breeding and horse turnout and dealt specifically with the process while at the University of Mississippi. Finally, Gaby testified that, on the basis of his knowledge and experience, he would feel comfortable turning a horse out and has mares of his own at the clinic that he turns out.

Although Gaby may not specialize in turning out horses, he is a qualified veterinarian with experience and knowledge uncommon to the world that could have assisted the trier of fact in this case. Accordingly, we conclude that the court improperly precluded Gaby’s expert testimony.

We next must determine whether the preclusion of Gaby’s testimony was harmful. “[E]ven if a court has acted improperly in connection with the introduction of evidence, reversal of a judgment is not necessarily mandated because there must not only be an evidentiary [impropriety], there also must be harm. . . . The harmless [impropriety] standard in a civil case is whether the improper ruling would likely affect the result. . . . When judging the likely effect of such a trial court ruling, the reviewing court is constrained to make its determination on the basis of the printed record before it. ... In the absence of a showing that the [excluded] evidence would have affected the final result, its exclusion is harmless. . . . Moreover, an evidentiary impropriety in a civil case is harmless only if we have a fair assurance that it did not affect the jury’s verdict. . . .

“A determination of harm requires us to evaluate the effect of the evidentiary impropriety in the context of the totality of the evidence adduced at trial. . . . Thus, our analysis includes a review of: (1) the relationship of the improper evidence to the central issues in the case, particularly as highlighted by the parties’ summations; (2) whether the trial court took any measures, such as corrective instructions, that might mitigate the effect of the evidentiary impropriety; and (3) whether the improperly admitted evidence is merely cumulative of other validly admitted testimony.” (Citations omitted; internal quotation marks omitted.) Sullivan v. Metro-North Commuter Railroad Co., supra, 292 Conn. 161-62; see also Raudat v. Leary, 88 Conn. App. 44, 52-53, 868 A.2d 120 (2005) (improperly admitted expert testimony was harmful error when it related to central issue in case, namely, condition of purchased horse); DeMarkey v. Fratturo, 80 Conn. App. 650, 656-57, 836 A.2d 1257 (2003) (improperly admitted hearsay evidence about cause of motor vehicle accident was harmless because it was cumulative of properly admitted testimonial and diagram evidence). “The overriding question is whether the trial court’s improper ruling affected the jury’s perception of the remaining evidence.” (Internal quotation marks omitted.) Sullivan v. Metro-North Commuter Railroad Co., supra, 163.

In the present case, the plaintiff has not met the burden of demonstrating harmful error. The court concluded, from the totality of the evidence, that the defendant did not violate any prevailing standard of care by turning out Eiffel Tower with another mare. The issue facing us is whether, in light of the record, the testimony of the plaintiffs expert, Gaby, would have affected that result at trial. The preclusion of that testimony did not prevent the court from considering relevant and material evidence that affected the ultimate issue of the case, and both parties offered other testimony as to the standard of care. Moreover, the court made a factual determination to credit the testimony of Emond regarding his conversation with Tiadore. Gaby’s testimony would not have affected the court’s determination that Tiadore, through his statements, effectively gave the defendant permission to turn out Eiffel Tower.

Further, although the plaintiff proffered Gaby’s expected testimony in its expert witness disclosure, we have no record by which to determine that Gaby would have actually testified to those claims. Finally, because the signed boarder agreement held the defendant harmless from all claims and damages absent the defendant’s “gross negligence or willful misconduct,” Gaby’s testimony would not have affected the case’s outcome.

Although we conclude that the court improperly precluded Gaby’s expert testimony, the court’s impropriety in precluding that testimony was harmless.

The judgment is affirmed.

In this opinion the other judges concurred.

       The term “turned out” essentially means to move a horse from its stall to an outdoor pasture, usually with other horses.

       A broodmare is a female horse that is used for breeding.

       It should also be noted that Eiffel Tower and Anna were turned out together for almost two months, between April 4 and June 1, 2004, without incident.

       The court did not specifically address this issue in its memorandum of decision.

       The attached letter stated: “Re: Description of circumstances leading to the claim
      “On June 6, 2004, Eiffel Tower was kicked in the right hind leg by a pasture-mate. She suffered a serious dislocation of the right hind hock joint. Initial therapy using manual replacement and splinting was successful in putting the joint back in correct anatomic location. Eiffel Tower continues to be comfortable in a pasture-only situation maintained on non-steroidal anti-inflammatory medication. Her prognosis for future soundness and carrying a foal is very poor at this time.
      “The owner is requesting compensation for medical expenses directly related to the injury under my care.
      “The total medical expenses to this date are $12,500.00 and rising.”

       At trial, when specifically asked whether he admitted negligence in that claim, Emond responded, “[n]o.”

       At trial, the following colloquy occurred:
      “[The Defendant’s Counsel]: I’m going to show you a document that I believe has already been marked as a full exhibit. It’s exhibit six, plaintiffs exhibit six. Is that your insurance policy?
      “[The Witness]: Yes.
      “[The Defendant’s Counsel]: And what we’ve been talking about here is care, custody and control portion of the policy. Is that caption professional extension coverage form—
      “[The Witness]: Yes. . . .
      “[The Defendant’s Counsel]: But you are making a claim, and I think counsel had brought this out earlier, that you are making a claim to cover the expenses that have been incurred by [the plaintiff] for the medical care rendered to Eiffel Tower. Is that correct?
      “[The Witness]: That’s correct.”

       The defendant’s counterclaim alleged in part: “2. At all times material to the plaintiffs [cjomplaint, the plaintiff and defendant were parties to a written [bjoarder [ajgreement which provides that the plaintiff, as horse owner, agreed to release and hold harmless the defendant, Candlewood Equine, and its employees, representatives and contractors from and against any liabilities, claims and damages associated with the horse known as ‘Eiffel Tower,’ its medical or professional care, boarding or conduct while at Candlewood Equine unless the same results from Candlewood Equine’s gross negligence or willful misconduct.
      “3. Because the plaintiff alleges liability, claims and damages associated with the horse which do not result from any gross negligence or willful misconduct on the part of Candlewood Equine, the aforementioned hold harmless clause in the [bjoarder [ajgreement has been triggered and the plaintiff is liable to the defendant for all costs including attorneys fees incurred in defending the claim for damages associated with the horse and the boarding and professional care of the horse while at Candlewood Equine.”

       The applicable part of the agreement provides: “Candlewood Equine and its employees, representatives, and contractors will endeavor to properly supervise and directly provide proper, professional care for your horse. As the horse owner, you understand and agree that there is inherent risk involved with the handling and management of horses, and you hereby agree to release and hold harmless Candlewood Equine and its employees, representatives and contractors from and against any liabilities, claims and damages associated with the horse, its medical or professional care, boarding, or conduct while at Candlewood Equine, unless the same results from Candlewood Equine’s gross negligence or willful misconduct.”

       The plaintiff argues that our Supreme Court has repeatedly struck down hold harmless agreements excusing an entity’s future negligence, citing specifically Hanks v. Powder Ridge Restaurant Corp., supra, 276 Conn. 314. In Hanks, the court struck down a waiver of liability signed by a snowtuber who was injured seriously while snow tubing. That case, however, is distinguishable from the present case. In that case, the defendant had subjected the plaintiff to potential severe bodily harm or death. Id., 334-35. Moreover, the court stated that even though snow tubing is a voluntary activity, recreational activities are an important and healthy part of everyday life that are supported by public policy considerations. Id. The present case does not involve a personal health or safety issue but, rather, economic damages to a commercial enterprise.

       Dow-Burt testified that customers taking riding lessons were required to sign the following provision: “[T]he [ujndersigned does hereby agree to hold harmless and indemnify WHC [Westbrook Hunt Club] and further release WHC, its owner(s), agents, servants, and employees from any liability or responsibility for accident, damage, injury, or illness to the undersigned or any horse owned by the [ujndersigned or to any family member or spectator accompanying the [ujndersigned while under the direction and instruction of WHC, its owner(s), agents, servants, and employees.”
      Additionally, when the plaintiff boards a horse, it asks its customer to sign a boarding contract that contains the following provisions: “5. RISK OF LOSS: While the horse is boarded at WHC, WHC shall not be liable for any sickness, disease, theft, death or injury suffered by the horse or any other cause of action arising from or connected to the boarding of said horse. The OWNER fully understands that WHC does not carry any insurance on any horse not owned by it for boarding or any other purposes, for which the horse is covered under any public liability, accidental injury, theft, or equine mortality insurance, and that all costs, no matter how great, connected with boarding are to be bom by the OWNER.
      “6. HOLD HARMLESS: Owner agrees to hold WHC harmless from . . . any claim resulting from personal or property damage or injury caused by said horse to anyone and agrees to pay any legal fees and/or expenses incurred by WHC in defense of such claims. . . . [Wjithin the [bjoarding [cjontract the undersigned hereby acknowledges that the Westbrook Hunt Club is not liable for any injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities, pursuant to Section 52-577p of the Connecticut General Statutes . . . .”
      Last, horse shows sanctioned by the United States Equestrian Federation regularly take place at Westbrook Hunt Club. That federation requires those participating in its horse shows to sign the following indemnification provision: “I AGREE that I choose to participate voluntarily in the Competition with my horse, as a rider, driver, handler, vaulter, longeur, lessee, owner, agent, coach, trainer, or as a parent or guardian of a junior exhibitor. I am fully aware and acknowledge that horse sports and the Competition involve inherent dangerous risks of accident, loss, and serious bodily injury including broken bones, head injuries, trauma, pain, suffering, or death (“Harm”). I AGREE to release the Federation and the Competition from all claims for money damages or otherwise for any Harm to me or my horse and for any Harm caused by me or my horse to others, even if the Harm resulted, directly or indirectly, from the negligence of the Federation or the Competition.”

       The court also notes that, as a further indication that the agreement was a commercial risk allocation device, the boarding agreement “contained a statement as to the value of Eiffel Tower and also an acknowledgment that the horse was insured, as well as the name of the insurance agency and insurance policy number.”

       Section 7-2 of the Connecticut Code of Evidence provides: “A witness qualified as an expert by knowledge, skill, experience, training, education or otherwise may testify in the form of an opinion or otherwise concerning scientific, technical or other specialized knowledge, if the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue.”


author: GRUENDEL, J.

text:
    CZESLAWA NIKIEL ET AL. v. MICHAEL J. TURNER, JR., ET AL.
    (AC 30553)
    Gruendel, Robinson and Alvord, Js.
    Argued December 9, 2009
    officially released March 9, 2010

      Sydney T. Schulman, for the appellant (named plaintiff).

      Thomas R. Gerarde, with whom was Alan R. Dembic-zak, for the appellee (defendant town of Wethersfield).
   Opinion

GRUENDEL, J.

In this trip and fall action, the plaintiff Czeslawa Nikiel appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendant town of Wethersfield. On appeal, she alleges instructional error. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. During the early evening of April 30, 2003, the plaintiff was walking on the easterly side of Middletown Avenue in Wethersfield. The plaintiff resided several blocks away and regularly, over the course of years, walked from her home down Middletown Avenue as a means of exercise. Despite the existence of sidewalk on significant portions of Middletown Avenue, the plaintiff elected to walk in the street. While walking on Middle-town Avenue on this particular occasion, she tripped and fell to the ground in front of 428 Middletown Avenue, sustaining physical injury. It is undisputed that a sidewalk existed adjacent to that location.

The plaintiff subsequently commenced a civil action pursuant to General Statutes § 13a-149, commonly referred to as the municipal highway defect statute. See McIntosh v. Sullivan, 274 Conn. 262, 266 n.4, 875 A.2d 459 (2005). A trial followed, at the conclusion of which the jury returned a general verdict in favor of the defendant and the court rendered judgment accordingly. From that judgment, the plaintiff appeals.

The plaintiff contends that the court improperly instructed the jury on General Statutes § 14-300c (a), titled “Pedestrian use of roads and sidewalks,” which provides in relevant part that “ [n] o pedestrian shall walk along and upon a roadway where a sidewalk adjacent to such roadway is provided and the use thereof is practicable. ...” The court instructed the jury that “[i]f you find that there was a sidewalk adjacent to the area of Middletown Avenue where [the plaintiff] allegedly fell, and it was practicable, practical for her to use such sidewalk, then [the plaintiff] is negligent per se and cannot prove that the alleged defect in the roadway was the sole proximate cause of her injuries.” We disagree with the plaintiff that this instruction was improper.

The applicable standard of review is well established. “[J]ury instructions are to be read as a whole, and instructions claimed to be improper are read in the context of the entire charge. ... A jury charge is to be considered from the standpoint of its effect on the jury in guiding it to a correct verdict. . . . The test to determine if a jury charge is proper is whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law. . . . Jury instructions need not be exhaustive, perfect or technically accurate, so long as they are correct in law, adapted to the issues and sufficient for the guidance of the jury. . . . Our standard of review on this claim is whether it is reasonably probable that the jury was misled.” (Citation omitted; internal quotation marks omitted.) Beckenstein v. Reid & Riege, P.C., 113 Conn. App. 428, 440-41, 967 A.2d 513 (2009).

The plaintiffs legal argument centers on her reliance on General Statutes (Rev. 2006) § 14-300 (d), now (f), which provides that “[i]n any civil action arising under subsection (c) of this section or sections 14-300b to 14-300d, inclusive, the doctrine of negligence per se shall not apply.” That argument misses the mark, as it overlooks the fact that the present litigation arises under § 13a-149. It further ignores the fact that our General Assembly has mandated that noncompliance with § 14-300c (a) “shall be an infraction.” General Statutes § 14-300c (e).

The sole appellate authority cited in support of the plaintiffs position is Peterson v. Meehan, 116 Conn. 150, 154, 163 A. 757 (1933). From that decision, the plaintiff extrapolates the principle that “[a] pedestrian is not guilty of negligence as a matter of law in walking upon the roadway rather than on a sidewalk, even if the sidewalk is usable.” Id. Close examination reveals that Peterson is inapplicable to the present case.

First and foremost, the mandate of § 14-300c did not exist at the time Peterson was decided. As the Supreme Court noted in that 1933 opinion, the defendants had requested a jury charge “to the effect that if there is a sidewalk upon which a pedestrian can walk and he walks in the street instead, he is guilty of negligence, though he is not obligated by law to use the sidewalk.” (Emphasis added.) Id. In analyzing the propriety of the trial court’s denial of that request, the Supreme Court emphasized that “[i]n the absence of statutory or municipal regulations affecting the question, the pedestrian has equal rights in the street with the operator of an automobile.” (Internal quotation marks omitted.) Id. That our legislature subsequently enacted a law prohibiting pedestrians from walking along and upon a roadway where a sidewalk adjacent to such roadway is provided and the use thereof is practicable; General Statutes § 14-300c (a); and made noncompliance therewith an infraction; General Statutes § 14-300c (e); diminishes, if not defeats, the precedential force of that decision. In addition, it is noteworthy that Peterson involved a negligence action against private individuals, not an action against a municipality under the municipal highway defect statute. As such, the Peterson court properly held that “it was incumbent upon the defendant in this case to allege and prove the contributory negligence of the plaintiffs decedent.” Peterson v. Mee-han, supra, 116 Conn. 153. In contrast, the burden rests with the plaintiff in an action brought under § 13a-149 to demonstrate freedom from contributory negligence. Lukas v. New Haven, 184 Conn. 205, 207, 439 A.2d 949 (1981). Peterson thus offers little aid to the plaintiffs cause.

As this court recently observed, “[bjecause a plaintiff seeking recovery under § 13a-149 must prove that the defect was the sole proximate cause of her injuries, it follows that the plaintiff must demonstrate freedom from contributory negligence.” Nicefaro v. New Haven, 116 Conn. App. 610, 621, 976 A.2d 75, cert. denied, 293 Conn. 937, 981 A.2d 1079 (2009). A finding that the plaintiff failed to comply with the mandate of § 14-300c (a) cannot be reconciled with a determination that she is free from contributory negligence. Whether termed negligence per se, a presumption of negligence or evidence of negligence; see, e.g., Ward v. Greene, 267 Conn. 539, 548, 839 A.2d 1259 (2004) (“ ‘Where the court adopts the requirements of a legislative enactment as the standard of conduct of a reasonable person, a violation of the enactment may constitute negligence per se, or create a presumption of negligence, or make out a prima facie case of negligence, or constitute evidence of negligence, depending on the legal doctrine followed in a particular jurisdiction . . . .’ 57A Am. Jur. 2d 669-70, Negligence § 743 [1989].”); it suffices to say that failure to comply with § 14-300c (a) demonstrates negligence on the part of the plaintiff. Because recovery under § 13a-149 requires, inter alia, proof of “freedom from contributory negligence”; Lukas v. New Haven, supra, 184 Conn. 207; the court correctly instructed the jury that a finding of noncompliance with § 14-300c (a) precludes recovery under the municipal highway defect statute. We thus conclude that the instruction provided by the court was correct in law, was adapted to the issues and provided sufficient guidance to the jury.

The plaintiff also claims that the court abused its discretion in denying her request that the court instruct the jury to begin its deliberation with her verdict form, which contained a series of interrogatories. It is undisputed both that the court, in its instructions, explained the plaintiffs verdict form to the jury and that the form was presented for its consideration. “[T]he purpose of interrogatories [is] to elicit a determination of material facts, [and] to furnish the means of testing the correctness of the verdict rendered, and of ascertaining its extent. . . . The power of the trial court to submit proper interrogatories to the juiy, to be answered when returning [its] verdict, does not depend upon the consent of the parties or the authority of statute law. In the absence of any mandatory enactment, it is within the reasonable discretion of the presiding judge to require or to refuse to require the jury to answer pertinent interrogatories, as the proper administration of justice may require. . . . The trial court has broad discretion to regulate the manner in which interrogatories are presented to the jury, as well as their form and content.” (Citations omitted; internal quotation marks omitted). Viera v. Cohen, 283 Conn. 412, 449-50, 927 A.2d 843 (2007). On our careful review of the record, we conclude that the court did not abuse its discretion in denying the plaintiffs request.

The judgment is affirmed.

In this opinion the other judges concurred.

       The original complaint included claims against Wethersfield public works director Michael J. Turner, Jr., and Wethersfield town manager Bonnie Therrien in their official capacities, as well as a claim for loss of consortium by Nikiel’s husband, Kazimierz Nikiel. On October 30,2008, Turner, Therrien and the town moved to dismiss those claims on the ground that “the highway defect statute is the sole exclusive remedy,” which motion the court granted. Accordingly, Czeslawa Nikiel on November 5, 2008, filed an amended complaint, naming as the sole defendant the town of Wethersfield. In light of that procedural history and the consistent reference to the plaintiff in the singular form by her attorney at trial and in this appeal, we refer in this opinion to Czeslawa Nikiel as the plaintiff and the town of Wethersfield as the defendant.

       A copy of the plaintiffs verdict form, entitled “Jury Interrogatories and Verdict,” was included in the appendix to the defendant’s appellate brief. In addition, subsequent to oral argument before this court, the trial court granted the plaintiff’s motion for rectification of the trial court record regarding that form.


text:
    KEITH JOHNSON ET AL. v. M. JODI RELL ET AL.
    (AC 30279)
    Bishop, Gruendel and Beach, Js.
    Argued December 7, 2009
    officially released March 9, 2010

      Keith Johnson, pro se, the appellant (named plaintiff).

      Steven R. Strom, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellees (defendants).
   Opinion

GRUENDEL, J.

The pro se plaintiff Keith Johnson appeals from the judgment of the trial court dismissing his federal cause of action against the defendants, Governor M. Jodi Rell, commissioner of correction Theresa Lantz and warden David Strange of the Osborn Correctional Institution. The plaintiff contends that the court improperly concluded that it lacked subject matter jurisdiction over his action. We disagree and, accordingly, affirm the judgment of the trial court.

The plaintiff is an inmate incarcerated at the Osborn Correctional Institution (Osborn). In February, 2008, he commenced in the Superior Court a federal cause of action, pursuant to 42 U.S.C. § 1983, challenging the constitutionality of the conditions of his confinement. See Preiser v. Rodriguez, 411 U.S. 475, 499, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973) (“§ 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life, but not to the fact or length of his custody”); Jenkins v. Haubert, 179 F.3d 19, 21 (2d Cir. 1999) (prisoner may bring § 1983 claim “challenging the conditions of [his] confinement where [he] is unable to challenge the conditions through a petition for federal habeas corpus”). As characterized by the plaintiff in his appellate brief, his complaint “enumerated a laundry list of conditions at [Osborn] which are the basis of [his] constitutional challenge.” Specifically, he alleged that Osborn is overcrowded, averring that “[t]he cells . . . were originally built as single cells containing one bed per cell, a desk, a toilet and sink and a storage chest. ... A vast majority of the cells at [Osborn] now contain two inmates per cell.” The plaintiff also alleged, inter alia, that “[t]he ventilation system is grossly inadequate”; that “[t]he heating system is . . . inadequate and ineffective”; that “[t]he plumbing is not in adequate and working condition”; that various fire hazards exist within Osborn; that “[t]he procedures for the cleaning of cells . . . are inadequate”; that “[t]he shower facilities . . . are deplorable”; that “[r]ecreation[al] opportunities . . . are grossly inadequate”; that “[t]he dining facilities and food preparation areas . . . are unsanitary”; and that “[t]he staffing of the medical department ... is grossly inadequate.” Exposure to such conditions, he alleged, constituted cruel and unusual punishment in violation of the eighth amendment to the United States constitution.

Notably, the plaintiff sued the defendants in both their official and individual capacities. In his prayer for relief, the plaintiff requested declaratory and injunctive relief, compensatory and punitive damages, and an award of costs and fees associated with the prosecution of the action.

Pursuant to Practice Book §§ 10-30 and 10-31 (a) (1), the defendants filed a motion to dismiss for lack of subject matter jurisdiction. That motion was predicated on multiple grounds, including lack of standing, immunity from suit and failure to exhaust administrative remedies. In response, the plaintiff filed an objection thereto, which was accompanied by his supporting affidavit. The court held a hearing on the matter on April 14, 2008. In its July 1, 2008 memorandum of decision, the court concluded that the doctrines of sovereign and qualified immunity barred the plaintiffs action against the defendants. As a result, the court dismissed the action for lack of subject matter jurisdiction. From that judgment, the plaintiff appeals.

At the outset, we note that “[i]n an appeal from the granting of a motion to dismiss on the ground of subject matter jurisdiction, this court’s review is plenary. A determination regarding a trial court’s subject matter jurisdiction is a question of law. When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record. . . . Jurisdiction of the subject matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong. ... A court has subject matter jurisdiction if it has the authority to adjudicate a particular type of legal controversy.” (Internal quotation marks omitted.) Francis v. Chevair, 99 Conn. App. 789, 791, 916 A.2d 86, cert. denied, 283 Conn. 901, 926 A.2d 669 (2007). “When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light. ... In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.” (Internal quotation marks omitted.) Bellman v. West Hartford, 96 Conn. App. 387, 393, 900 A.2d 82 (2006). Further, in addition to admitting all facts well pleaded, the motion to dismiss “invokes any record that accompanies the motion, including supporting affidavits that contain undisputed facts.” (Internal quotation marks omitted.) Henriquez v. Allegre, 68 Conn. App. 238, 242, 789 A.2d 1142 (2002).

Our consideration of the court’s subject matter jurisdiction begins with the defendants’ contention that the plaintiff lacks standing. They maintain that the plaintiffs failure to allege injury in his complaint deprived the court of subject matter jurisdiction and mandated dismissal of the action. We agree.

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 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 subject matter of the controversy. . . . [Our Supreme Court] has often stated that the question of subject matter jurisdiction, because it addresses the basic competency of the court, can be raised by any of the parties, or by the court sua sponte, at any time. . . . [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 the plaintiffs standing is plenary.” (Citations omitted; internal quotation marks omitted.) Lewis v. Slack, 110 Conn. App. 641, 643-44, 955 A.2d 620, cert. denied, 289 Conn. 953, 961 A.2d 417 (2008).

Standing is no mere procedural technicality. As the United States Supreme Court has explained, “[t]he power to declare the rights of individuals and to measure the authority of governments ... is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy.” (Internal quotation marks omitted.) Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982). As a result, “[t]he exercise of judicial power, which can so profoundly affect the lives, liberty, and property of those to whom it extends, is therefore restricted to litigants who can show [an injury] resulting from the action which they seek to have the court adjudicate.” (Internal quotation marks omitted.) Id., 473. The standing requirement further evinces a proper regard for the judicial branch’s relationship with coequal branches of government under our constitutional structure. Thus, “[i]t is the role of courts to provide relief to claimants, in individual or class actions, who have suffered, or will imminently suffer, actual harm; it is not the role of courts, but that of the political branches, to shape the institutions of government in such fashion as to comply with the laws and the Constitution.” Lewis v. Casey, 518 U.S. 343, 349, 116 S. Ct. 2174, 135 L. Ed. 2d 606 (1996).

An allegation of injury is both fundamental and essential to a demonstration of standing. Under Connecticut law, standing “requires no more than a colorable claim of injury; a plaintiff ordinarily establishes his standing by allegations of injury.”* **** (Emphasis in original.) Maloney v. Pac, 183 Conn. 313, 321 n.6, 439 A.2d 349 (1981). “As long as there is some direct injury for which the plaintiff seeks redress, the injury that is alleged need not be great.” Id., 321; see also Broadnax v. New Haven, 270 Conn. 133, 156, 851 A.2d 1113 (2004) (“only those individuals who have suffered a direct injury would have standing”). Furthermore, an allegation of injury is a prerequisite under federal law to the maintenance of an action under § 1983. See, e.g., Colombo v. O’Connell, 310 F.3d 115, 117 (2d Cir. 2002) (“[t]o state a claim under [§] 1983, a plaintiff must allege facts indicating that some official action has caused the plaintiff to be deprived of his or her constitutional rights—in other words, there is an injury requirement to state the claim”), cert. denied, 538 U.S. 961, 123 S. Ct. 1750, 155 L. Ed. 2d 512 (2003); Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (“[i]n order to state a claim under § 1983, a plaintiff must allege that he was injured by either a state actor or a private party acting under color of state law”).

The complaint in the present case lacks that requisite allegation, as does the affidavit submitted by the plaintiff in opposing the defendants’ motion to dismiss. By the plaintiffs own admission, the complaint is comprised of a “laundry list” of conditions at Osborn with which he takes issue, but nowhere in the complaint does he allege any injuries arising therefrom. At the April 14, 2008 hearing, the court specifically inquired as to whether the plaintiff could refer to any specific allegation in the complaint alleging an injury. The plaintiff conceded he could not, stating: “No, not any specific injury. There aren’t injuries that I could present to the court. I did not mention them in the complaint. The complaint just encompasses the general conditions in the [correctional institution].” Taken in a light most favorable to the plaintiff, his complaint alleges that Osborn contains overcrowded and inhumane conditions. Nevertheless, absent an allegation of direct injury, it remains the province of the political branches to shape that institution of government. Lewis v. Casey, supra, 518 U.S. 349. Absent an allegation of direct injury, the plaintiff lacked standing to invoke the jurisdiction of the court. Accordingly, the action properly was dismissed.

The judgment is affirmed.

In this opinion the other judges concurred.

       The complaint also named as pro se plaintiffs Corey Ferguson, Ronald Reiske, Ahmaad Lane, William Faraday, Elbert Harris, James Golphin, Jonathan McMillan, Caribe Billie, Thomas Morgan and Lee Williams. The court dismissed the action with respect to those plaintiffs for lack of personal jurisdiction due to the fact that they had not signed the complaint, as required by Practice Book § 8-1, which provides in relevant part that “[a]ny person proceeding without the assistance of counsel shall sign the complaint. . . .” The court’s dismissal of the action with respect to those plaintiffs for lack of personal jurisdiction is not a subject of this appeal. We therefore refer in this opinion to Johnson as the plaintiff.

       Section 1983 of title 42 of the United States Code provides in relevant part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .

       The plaintiffs complaint also alleged, in general terms, a deprivation of due process under the fourteenth amendment. The court did not address that claim in its memorandum of decision dismissing the plaintiffs action, and the plaintiff thereafter failed to seek an articulation on that issue. “Under our rules of practice, it is the sole responsibility of the appellant to provide this court with an adequate record for review. Practice Book § 61-10. Practice Book § 66-5 permits an appellant to seek an articulation by the trial court of the factual and legal basis on which it rendered its decision. [A]n articulation is appropriate where the trial court’s decision contains some ambiguity or deficiency reasonably susceptible of clarification. ... An articulation may be necessary where the trial court fails completely to state any basis for its decision ... or where the basis, although stated, is unclear’. . . . The purpose of an articulation is to dispel any . . . ambiguity by clarifying the factual and legal basis upon which the trial court rendered its decision, thereby sharpening the issues on appeal. . . . [W]e will, in the absence of a motion for articulation, assume that the trial court acted properly.” (Citation omitted; internal quotation marks omitted.) Nicefaro v. New Haven, 116 Conn. App. 610, 617, 976 A.2d 75, cert. denied, 293 Conn. 937, 981 A.2d 1079 (2009). Moreover, the plaintiff has not addressed that issue in his appellate brief or raised any claim relating thereto. We thus confine our review to the plaintiffs eighth amendment challenge.

       Pursuant to the Prison Litigation Reform Act of 1995, as amended, 42 U.S.C. § 1997e et seq., “[n]o action shall be brought with respect to prison conditions under section 1983 ... or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e (a). Exhaustion is “mandatory” and “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes . . . .” Porter v. Nussle, 534 U.S. 516, 524, 532, 122 S. Ct. 983, 152 L. Ed. 2d 12 (2002). Moreover, § 1997e (a) requires “proper exhaustion,” which necessitates completion of “the administrative review process in accordance with the applicable procedural rules, including deadlines, as a precondition to bringing suit . . . .” Woodford v. Ngo, 548 U.S. 81, 88, 126 S. Ct. 2378, 165 L. Ed. 2d 368 (2006).
      This court likewise has held that “[although the Superior Court has jurisdiction to hear cases concerning prison conditions arising under federal law, a prisoner may bring such an action only after he has exhausted such administrative remedies as are available.” Mercer v. Rodriquez, 83 Conn. App. 251, 267, 849 A.2d 886 (2004). At the same time, we remind counsel that a prisoner’s alleged failure to exhaust administrative remedies properly is the focus of a motion to strike rather than a motion to dismiss, as it does not implicate the subject matter jurisdiction of the court. Id., 266-68; see also Steele v. Federal Bureau of Prisons, 355 F.3d 1204, 1208 (10th Cir. 2003) (§ 1997e [a] “does not defeat . . . jurisdiction, it merely defers it” [internal quotation marks omitted]), cert. denied, 543 U.S. 925, 125 S. Ct. 344, 160 L. Ed. 2d 222 (2004), overruled in part on other grounds by Jones v. Bock, 549 U.S. 199, 204 n.2, 216, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007). In dismissing the present action for lack of subject matter jurisdiction, the court did not address the plaintiffs alleged failure to exhaust his administrative remedies, nor do we in this opinion.

       Although the court determined that the plaintiff’s complaint failed to specify “how these conditions have personally caused [him] pain and suffering,” the court did not expressly address the issue of standing in its memorandum of decision. We nevertheless consider the defendants’ contention in light of “the fundamental principle” that a party seeking redress must demonstrate a direct injury; Connecticut State Medical Society v. Oxford Health Plans (CT), Inc., 272 Conn. 469, 481 n.8, 863 A.2d 645 (2005); and the fact that an appellate court “is authorized to rely upon alternative grounds supported by the record to sustain a judgment.” (Internal quotation marks omitted.) Kelley v. Bonney, 221 Conn. 549, 592, 606 A.2d 693 (1992).

       Because Connecticut’s appellate courts are bound by “a basic judicial duty to avoid deciding a constitutional issue if a nonconstitutional ground exists that will dispose of the case”; Moore v. McNamara, 201 Conn. 16, 20, 513 A.2d 660 (1986); see also State v. Ritrovato, 280 Conn. 36, 50, 905 A.2d 1079 (2006); State v. McCahill, 261 Conn. 492, 501, 811 A.2d 667 (2002); State v. Stern, 65 Conn. App. 634, 638, 782 A.2d 1275, cert. denied, 258 Conn. 935, 785 A.2d 232 (2001); standing arguably is of heightened import when the claim presented is one of constitutional dimension.

       Federal standing jurisprudence requires an “injury in fact” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical . . . .” (Citation omitted; internal quotation marks omitted.) Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). Our Supreme Court has stated that “[tjhere is little material difference between what we have required and what the United States Supreme Court in Lujan demanded of the plaintiff to establish standing.” Gay & Lesbian Law Students Assn. v. Board of Trustees, 236 Conn. 453, 466 n.10, 673 A.2d 484 (1996).

       At oral argument before this court, the plaintiff for the first time alleged that “the violation of his constitutional rights is the injury.” That allegation procedurally is improper, as the plaintiff failed to present it to the trial court and has not briefed it in this appeal. He further provides no authority to support the contention.
      In addition, this court has rejected such a contention in Tedesco v. Stamford, 24 Conn. App. 377, 588 A.2d 656 (1991), rev’d on other grounds, 222 Conn. 233, 610 A.2d 574 (1992). We stated: “It is well established that a plaintiff must prove more than a mere violation of a constitutional right in order to collect compensatory damages pursuant to 42 U.S.C. § 1983. Carey v. Piphus, 435 U.S. 247, 264, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978). He must demonstrate that the constitutional deprivation caused him some actual injury. Wheatley v. Beetar, 637 F.2d 863, 867 (2d Cir. 1980).” Tedesco v. Stamford, supra, 382. Moreover, the plaintiff’s circular logic is contrary to the great weight of decisional law, both state and federal, dismissing claims alleging constitutional violations for lack of standing. For example, in Lewis v. Casey, supra, 518 U.S. 343, the United States Supreme Court considered the standing requirement in the context of a prisoner’s fundamental right of access to courts pursuant to Bounds v. Smith, 430 U.S. 817, 821, 97 S. Ct. 1491, 52 L. Ed. 2d 72 (1977). The court held that a prisoner pursuing such a constitutional claim is obligated to demonstrate, as a “constitutional prerequisite,” the existence of an actual iryury. Lewis v. Casey, supra, 351; accord Smith v. Arkansas Dept. of Correction, 103 F.3d 637, 643 (8th Cir. 1996) (“[a]s a prerequisite to any inquiry about the conditions of confinement, as with all claims, an inmate seeking relief must satisfy basic constitutional standing requirements [including demonstration of] an actual or imminent injury in fact”).
      Also noteworthy is the discussion in Lewis regarding the respective roles of the judicial and “political branches of the State and Federal governments” in confronting a constitutional challenge by a prisoner. Lewis v. Casey, supra, 518 U.S. 349-50. The court stated: “[T]he distinction between [those] roles would be obliterated if, to invoke intervention of the courts, no actual or imminent harm were needed, but merely the status of being subject to a governmental institution that was not organized or managed properly. If— to take another example from prison life—a healthy inmate who had suffered no deprivation of needed medical treatment were able to claim violation of his constitutional right to medical care, see Estelle v. Gamble, 429 U.S. 97 [103, 97 S. Ct. 285, 50 L. Ed. 2d 251] (1976), simply on the ground that the prison medical facilities were inadequate, the essential distinction between judge and executive would have disappeared: it would have become the function of the courts to assure adequate medical care in prisons.” Lewis v. Casey, supra, 350. That discussion informs our analysis in the present case, as the plaintiffs complaint alleges, inter alia, inadequate medical care.


text:
    STATE OF CONNECTICUT v. WAYNE A. RAE, JR.
    (AC 29563)
    Gruendel, Lavine and Mihalakos, Js.
    Argued October 28, 2009
    officially released March 9, 2010

      Christopher Y. Duby, special public defender, for the appellant (defendant).

      Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, state’s attorney, and Karen Diebolt, assistant state’s attorney, for the appellee (state).
   Opinion

MIHALAKOS, J.

The defendant, Wayne A. Rae, Jr., appeals from the judgment of the trial court revoking his probation and sentencing him to three years of incarceration, execution suspended after two and one-half years, followed by one year and ten months probation. The defendant claims that the court should establish a per se rule that a missing transcript of an alleged prosecutorial impropriety occurring during a substantive criminal proceeding requires a new trial. We affirm the judgment of the trial court.

The court found the following facts. On August 22, 2003, the defendant entered a guilty plea to the charge of burglary in the second degree in violation of General Statutes § 53a-102. The court, Rodriguez, J., sentenced the defendant to a total effective term of four years of incarceration, execution suspended after one year, and four years of probation. Among the defendant’s conditions of probation was the standard condition of probation that he not violate any criminal laws while on probation, as well as special conditions, which included that he (1) have no contact with the victim in that case, (2) pay restitution to that victim, (3) receive anger management counseling, (4) receive substance abuse evaluation and treatment and (5) submit to random urinalysis.

During his probationary period, on July 11, 2007, the defendant was arrested and charged with violating the terms of his probation pursuant to General Statutes § 53a-32. The state alleged that the defendant violated his probation by violating our criminal laws and by failing to complete his substance abuse evaluation and treatment. At the defendant’s probation violation hearing, on November 19 and 20, 2007, the court, Markle, J., found that the defendant had violated his probation by engaging in inappropriate conduct with minors and by failing to complete his substance abuse treatment.

On November 21, 2007, after finding that the defendant had violated his probation in the aforementioned ways, the court addressed the dispositional phase of the probation revocation proceeding. Although the proceeding was not transcribed, the court had taken copious notes that day and had drafted its decision the previous evening. The court found that the state had met its burden of proof by a preponderance of the evidence that the defendant had committed all three alleged violations of probation. The court also concluded that the beneficial purposes of probation would not be served by offering the defendant further probationary services due to his erratic behavior and multiple failures to comply with his substance abuse treatment. The court revoked the defendant’s probation and sentenced him to a total effective term of three years of incarceration, execution suspended after two and one-half years, followed by one year and ten months probation.

Although the proceedings of November 19 and 20, 2007, were recorded, the court reporter was unable to record the court’s findings on November 21, 2007. On January 24, 2008, the court convened a hearing to read its decision into the record based on its notes and previously prepared draft decision. The state confirmed that its notes were consistent with the court’s notes regarding the defendant’s sentence and conditions of probation. The defendant asserted that he did not have any notes from that day and objected to any attempt to re-create the record for fear that it might jeopardize his appellate rights and rights with regard to his pending criminal trial. Defense counsel requested a two week continuance to research the issue and contact the defendant’s appellate attorney. The court denied the defendant’s request, stating: “It’s my understanding that this would not be the first time that this has occurred in the history of Connecticut courts and that certainly his appellate rights still stand . . . [b]ut I took copious notes that day of my decision. It was written out the night before, before I put it on the record. So, I am going to read from the notes that I prepared for the purposes of entering my findings.”

The court then read its findings into the record. On August 25, 2008, the court held a rectification hearing to determine if there were additional facts outside the reconstructed record that needed to be included to create an adequate record for appeal. The court monitor testified, and the court admitted into evidence the complete six page record of the court monitor’s notes that were contemporaneously taken on November 21, 2007. The court found that the court monitor’s notes, along with the court’s findings that were read into the record on January 24, 2008, were a sufficient substitute for a verbatim transcript. Consequently, the court found that there was an adequate record for appellate review.

The defendant subsequently appealed to this court. On appeal, the defendant contends that the unavailability of a complete trial transcript has deprived him of his constitutional right to meaningful appellate review. He claims that the court should establish a per se rule that a missing transcript of an alleged prosecutorial impropriety during a probation revocation proceeding requires the court to order a new trial. We disagree.

“The absence of a portion of the trial transcript does not mandate a new trial. State v. Williams, 227 Conn. 101, 105, 629 A.2d 402 (1993). The state is not required to furnish to the defendant a verbatim transcript of the underlying trial. . . . The state must ensure only that the record is adequate for effective appellate review of any claims of error raised by the defendant. ... A new trial is required only if the record, as reconstructed, is inadequate for this purpose. . . . The sufficiency of a transcript to enable the appellate courts to review the issues on appeal is a matter of fact, because the trial court is in the best position to determine whether the reconstructed record adequately reflects what occurred at the trial. An appellate court should affirm a trial court’s finding that the reconstructed record was sufficient unless the appellate court finds that the trial court’s determination was clearly erroneous. . . .

“In most cases concerning reconstructed transcripts, the missing portion of the transcript consists primarily of the testimony of witnesses. See, e.g., id., 104-105 (proceedings of one afternoon of trial missing); Commonwealth v. Harris, 376 Mass. 74, 78-79, 379 N.E.2d 1073 (1978) (entire transcript missing); People v. King, 160 App. Div. [2d] 531, 532, 554 N.Y.S.2d 517, appeal denied, 76 N.Y.2d 847, 559 N.E.2d 1291, 560 N.Y.S.2d 132 (1990) (state’s entire case missing).” (Citations omitted; internal quotation marks omitted.) State v. DePastino, 228 Conn. 552, 557-58, 638 A.2d 578 (1994).

“In determining whether a reconstructed record is sufficient, the trial court considers various factors, including the nature of the case, the claim of error advanced by the defendant, the availability of witnesses and exhibits from the original trial, the length of time that has passed, the length of the missing portion of the record and whether the defendant is represented by different counsel on appeal.” State v. Williams, supra, 227 Conn. 106. “The purpose of the reconstructed record is to enable the appellate court effectively to review identified claims of error; the record is not presumed to be complete enough to dissect in the hope of discovering hitherto unnoticed issues or errors.” (Internal quotation marks omitted.) Id., 109-10.

In the present case, only the transcript of the disposi-tional phase of the hearing, on November 21, 2007, was omitted. Although that portion of the proceeding was not transcribed, the court already had drafted its decision the previous evening and had taken copious notes that day. Further, the court admitted the complete six page record of the court monitor’s notes that were taken on November 21,2007. The court certified that the court monitor’s notes, coupled with the court’s notes, sufficiently reconstructed the record for November 21,2007, to allow for appellate review.

The gravamen of the defendant’s claim is that during the dispositional phase, the prosecutor made inappropriate statements, not preserved in the reconstructed record, that may have influenced the sentencing court. He claims that the prosecutor at some point referenced an incident that happened in court, where the defendant had approached the father of the victims and quietly uttered the word “sweet.” On November 21, 2007, the prosecutor also noted that the defendant had attempted to stare her down in court, leading the prosecutor to rhetorically inquire, “what does he do at home to these children?” The defendant claims that both statements were examples of prosecutorial impropriety that would be lost on appeal through a reconstructed record. The defendant’s claim is without merit. Through the state’s stipulations and the court monitor’s notes, there is sufficient factual basis for the defendant to bring an appellate claim on the issue of prosecutorial impropriety.

Whether a transcript is sufficient for appellate review is a question of fact for the trial court. The defendant asks that we circumvent the procedural and statutory mechanisms already available to a defendant wanting to challenge the adequacy of a reconstructed record. In so doing, he proposes that we use our supervisory powers to adopt a per se rule that a new trial be required whenever there is a missing transcript of an alleged prosecutorial impropriety during a probation revocation proceeding. We recognize that “[o]ur supervisory authority [however] is not a form of free-floating justice, untethered to legal principle. . . . [T]he integrity of the judicial system serves as a unifying principle behind the seemingly disparate use of our supervisory powers. . . . [0]ur supervisory powers are invoked only in the rare circumstance where [the] traditional protections are inadequate to ensure the fair and just administration of the courts . . . .” (Internal quotation marks omitted.) State v. Mukhtaar, 253 Conn. 280, 290 n.11, 750 A.2d 1059 (2000).

In the present case, the protections provided to this defendant were sufficient to ensure that the reconstructed record was adequate for appellate review, as this case does not present “the rare circumstance where [the] traditional protections are inadequate to ensure the fair and just administration of the courts . . . (Internal quotation marks omitted.) Somers v. Chan, 110 Conn. App. 511, 533,955 A.2d 667 (2008). Therefore, we decline to exercise our supervisory powers, as requested by the defendant.

The judgment is affirmed.

In this opinion the other judges concurred.

       Although the defendant refers to the probation revocation hearing as a “substantive criminal proceeding,” we recognize that it is well settled that “revocation hearings are not criminal proceedings.” State v. McDowell, 242 Conn. 648, 653, 699 A.2d 987 (1997); see also Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). Nonetheless, we will apply our analysis as if the misidentification did not appear.

       General Statutes § 53a-32 (a) provides in relevant part: “At any time during the period of probation . . . the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation . . .

       The court reporter’s equipment malfunctioned that day and failed to record the proceedings.

       Defense counsel particularly was concerned with preserving the defendant’s appellate claim that the prosecutor had made comments referring to evidence that was outside the record. The defendant represented that he did not know if the alleged impropriety had occurred on November 20 or 21, 2007, because he had no notes.

       The state stipulated in writing that the prosecutor referenced this incident during argument for sentencing.

       This statement is included on page five of the court monitor’s notes from November 21, 2007.

       In support of his claim, the defendant relies on United States v. Selva, 559 F.2d 1303 (5th Cir. 1977). The defendant’s reliance on Selva, however, is misplaced. “In Selva, the closing arguments were not recorded as a result of the illness of the court reporter. . . . The judgment of conviction was reversed, and the case was remanded to the United States District Court for a new trial. ... In Selva, the United States Court of Appeals for the Fifth Circuit held that ‘although [the] appellant alleges no specific error to have occurred during the unrecorded portion of the proceeding, the fact that his new appellate counsel is foreclosed from examining for possible error a substantial and crucial portion of the trial renders illusory his right to appeal.’ . . . The District Court had determined that it was not possible to reconstruct a substantially verbatim account of the final arguments. . . . The Fifth Circuit thereafter ordered a new trial. . . . Selva presents a case in which the District Court found that it was not possible to reconstruct the record and, nevertheless, denied a new trial.” (Citations omitted.) State v. Aquart, 69 Conn. App. 21, 27-28, 793 A.2d 1185, cert. denied, 260 Conn. 926, 797 A.2d 521 (2002). In sharp contrast, in this case, as in Aquart, the trial court found that the reconstructed transcript was sufficient for appellate review of the trial. See id., 23.