author: SCHALLER, J.

text:
    STATE OF CONNECTICUT v. RUSSELL JOHNSON
    (AC 20349)
    Foti, Schaller and Dranginis, Js.
    Argued September 10
    officially released December 18, 2001

      Lisa J. Steele, special public defender, for the appellant (defendant).

      Robert M. Spector, assistant state’s attorney, with whom, on the brief, was Michael Dearington, state’s attorney, and Gary W. Nicholson, senior assistant state’s attorney, for the appellee (state).
   Opinion

SCHALLER, J.

The defendant, Russell Johnson, appeals from the judgment of conviction, rendered after a jury trial, of attempt to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and (5), and 53a-49 (a) (2), attempt to commit assault of a peace officer in violation of General Statutes (Rev. to 1997) § 53a-167c (a) (1), as amended by Public Acts 1998, No. 98-41, and General Statutes § 53a-49 (a) (2), carrying a pistol or revolver without a permit in violation of General Statutes (Rev. to 1997) § 29-35 (a) and possession of narcotics with intent to sell in violation of General Statutes § 21a-277 (a). The defendant claims that the trial court improperly (1) admitted evidence that he attempted to fire a pistol at a police officer, (2) denied the defendant’s motion to either dismiss the charges of attempt to commit assault or to exclude police testimony because of the destruction of recorded police radio broadcasts, thereby violating the defendant’s state constitutional due process rights, and (3) refused to instruct the jury that it could draw an adverse inference from the state’s failure to preserve the recorded police radio broadcasts. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the defendant’s appeal. On November 28, 1998, the Hamden police were seeking to arrest a suspect in a domestic violence dispute. Believing that the suspect had fled to New Haven, they informed New Haven police officers of their search and provided a description of the suspect. In their broadcast to the New Haven police, the Hamden police described the suspect as a black male, approximately five feet, eight inches in height, 160 pounds, and wearing a dark brown jacket and dark pants. The complainant’s Hamden address is on Bowen Street near the New Haven line, and Bowen Street becomes Sherman Avenue when it crosses into New Haven. The Hamden police broadcast stated that the suspect had been seen walking along Sherman Avenue in New Haven within the previous ten minutes.

During the evening of November 28, 1998, two New Haven police officers, Justin Kasperzyk and Martin Tchakirides, were stationed in New Haven near the Hamden line. Tchakirides was driving a police cruiser, and Kasperzyk was in the front passenger seat. After receiving the Hamden police broadcast, Tchakirides and Kasperzyk drove along Sherman Avenue, where they saw the defendant walking. The defendant matched the suspect’s description, and the officers thought that he was the person wanted by the Ham-den police.

Tchakirides and Kasperzyk drove to the defendant and told him to stop so that they could speak to him. The officers then asked the defendant to approach the car. Instead, the defendant walked behind the car with his hand in his pocket. Kasperzyk stepped out of the car, and the defendant fled. Tchakirides stayed with the car while Kasperzyk chased the defendant on foot. Kasperzyk pursued the defendant along a driveway and into the backyards behind Percival Street in New Haven. Kasperzyk maintained periodic radio contact with Tchakirides, and Tchakirides was able to monitor the chase from the cruiser and shine its spotlight into the yards.

The defendant then ran into a garage behind Carmel Street in New Haven with Kasperzyk in close pursuit. The defendant immediately ran out of the garage and, as Kasperzyk shined his flashlight into his face, the defendant pointed a gun at Kasperzyk’s head. Tchakirides saw the defendant run into the garage, and witnessed the confrontation between Kasperzyk and the defendant. The defendant attempted to escape, but Kasperzyk tackled him. Tchakirides arrived soon thereafter and, together, he and Kasperzyk fought with and subdued the defendant until other police units arrived. Kasperzyk told Tchakirides that the defendant had tried to shoot him. During a search of the garage area, Kasperzyk found a gun that later was identified as belonging to the defendant. The defendant did not have a city or state permit to carry a firearm.

The police later searched the defendant and found a prescription bottle with fifteen bags of a white, rock-like substance that later was determined to be freebase cocaine. The defendant admitted that he sold narcotics to support himself and that some of the narcotics were for his personal use. Additional facts will be set forth where necessary to the resolution of the defendant’s appeal.

I

A

The defendant first claims that the court improperly admitted evidence that he attempted to fire a pistol at Kasperzyk. Specifically, the defendant argues that the court abused its discretion by admitting into evidence expert testimony about an indentation on one of the cartridges found in the weapon. We are not persuaded.

The following additional facts are relevant to our resolution of the defendant’s claim. When the defendant exited the garage, he pointed his gun at Kasperzyk’s head and pulled the trigger. Kasperzyk did not hear a clicking sound at the time the defendant pointed the gun at him. After the officers subdued the defendant, Kasperzyk located the gun in the garage and gave it to Tchakirides. Tchakirides examined the pistol and removed the cylinder from the weapon to make it safe. Upon examination, Tchakirides noted that the cylinder contained five chambers containing four live rounds and one empty chamber. At that time, he noticed that the pistol’s firing pin rested over the empty chamber. Tchakirides did not fire or attempt to fire the gun at any time before he turned it in as evidence for use at trial.

The state introduced the testimony of James Stephenson, a ballistics expert. Stephenson testified that the weapon is a .22 caliber, five shot, single action revolver. A single action revolver requires the user to pull the hammer back manually for each and every attempt to fire the weapon. Pulling back on the hammer of a properly functioning single action weapon will rotate the cylinder and align the next chamber with the barrel of the gun. Stephenson testified that the defendant’s gun had a defective firing mechanism. Specifically, the cylinder did not rotate properly and, therefore, did not align the chamber with the barrel. That type of malfunction also can cause the firing pin to strike the back side of the cylinder or a portion of the cartridge when released.

Stephenson testified further about the four live rounds that Tchakirides found in the weapon. Stephenson stated that of the four cartridges in the weapon, three were silver in appearance and one was brass. He further explained that the brass cartridge had on it a firing pin impression consistent with firing having occurred, but not with enough force to cause the cartridge to fire. Stephenson also testified that he could not state whether the cartridge misfired because of a malfunction in the weapon or in the cartridge itself. Finally, Stephenson testified that there is no way to determine when the impression was made on the cartridge.

In his motion to preclude Stephenson’s testimony regarding the indentation, the defendant stated that, among other things, Kasperzyk did not hear the defendant attempt to fire the weapon, the defendant had fired the weapon two weeks before the incident, the hammer was resting on an empty chamber when inspected by Tchakirides, there was no recording of where the removed cartridges were positioned in the weapon and there was no way to determine when the mark was made. The defendant argued, therefore, that the firing pin impression evidence was speculative, and “the admission of such evidence unduly prejudiced the defendant.” At trial, the prosecutor responded that “whether or not he fired the gun, or attempted to fire it, is a matter of inference. ... I think it’s relevant evidence before the jury.” The court ruled that the evidence of the firing pin mark was relevant and admissible. The defendant did not object to the court’s ruling on the ground of relevance.

“Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . [E]vidence need not exclude all other possibilities [to be relevant]; it is sufficient if it tends to support the conclusion [for which it is offered], even to a slight degree. . . . [T]he fact that the evidence is susceptible of different explanations or would support various inferences does not affect its admissibility, although it obviously bears upon its weight. So long as the evidence may reasonably be construed in such a manner that it would be relevant, it is admissible.” (Internal quotation marks omitted.) State v. Andresen, 256 Conn. 313, 336-37, 773 A.2d 328 (2001).

“It is well settled that questions of relevance are committed to the sound discretion of the trial court.” (Internal quotation marks omitted.) Pickel v. Automated Waste Disposal, Inc., 65 Conn. App. 176, 184, 782 A.2d 231 (2001). “Rulings on such matters will be disturbed on appeal only upon a showing of a clear abuse of discretion.” (Internal quotation marks omitted.) New Haven v. Local 884, Council 4, AFSCME, AFL-CIO, 58 Conn. App. 746, 759, 755 A.2d 885, cert. denied, 254 Conn. 929, 761 A.2d 753 (2000).

The state presented testimony that the defendant pointed a gun at Kasperzyk’s head and pulled the trigger. Testimony by the state’s expert, Stephenson, established that the gun was defective in a manner that could explain how the hammer in the defendant’s gun could strike the cartridge without actually discharging the bullet. The state argues that the indentation on the bullet was offered as one explanation of how the defendant could have pulled the trigger without discharging the gun and that the defendant’s argument makes several unwarranted assumptions.

The indentation on the cartridge supported the conclusion that the defendant attempted to fire his weapon during the confrontation with Kasperzyk. We conclude that the court did not abuse its discretion by allowing expert testimony about the indentation on the cartridge.

B

The defendant also claims that even if the evidence regarding the indentation was relevant, the court should have excluded it because its prejudicial tendency outweighed its probative value and because it had great potential to mislead the jury. The state argues correctly that the defendant did not raise that argument at trial and, therefore, the claim is unpreserved. We agree.

“Our review of evidentiary rulings made by the trial court is limited to the specific legal ground raised in the objection [to the trial court], . . . This court reviews rulings solely on the ground on which the party’s objection is based.” (Internal quotation marks omitted.) State v. Paris, 63 Conn. App. 284, 291, 775 A.2d 994, cert. denied, 257 Conn. 909, 782 A.2d 135 (2001).

At trial, defense counsel failed to object specifically to the indentation testimony on the ground of prejudice. Rather, counsel stated: “I don’t believe any evidence as to that indentation should be allowed in.” In response, the prosecutor argued: “I think it’s relevant evidence, and I don’t really, frankly, understand the claim of what the basis of the claim is here on the motion, it’s claiming it’s actually prejudicial. The state is going to come in where it’s already admitted that he fired the weapon. I think it’s relevant evidence before the jury.” The court then inquired of defense counsel: “Anything further?” Defense counsel responded: “No, Your Honor.” The court then ruled on the defendant’s motion, clearly on the basis of relevance, stating: “This is relevant evidence for this case, given the facts as I have heard them thus far.” Therefore, because the defendant did not raise prejudice as a ground for his objection at trial, his claim is unpreserved and we decline to review it. See id.

II

The defendant next claims that the court violated his state constitutional right to due process by denying his motion to dismiss the charges of attempt to commit assault or to exclude certain police testimony because the police destroyed recorded police radio broadcasts made on the evening of his arrest. We disagree.

“We must first consider the standard of review where a claim is made that the court failed to grant a motion to dismiss. Our standard of review of a trial court’s . . . conclusions of law in connection with a motion to dismiss is well settled. . . . [W]here 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 .... Thus, our review of the trial court’s ultimate legal conclusion and resulting [denial] of the motion to dismiss will be de novo.” (Internal quotation marks omitted.) State v. Weiner, 61 Conn. App. 738, 747, 767 A.2d 1220, cert. denied, 256 Conn. 902, 772 A.2d 600 (2001).

The following additional facts and procedural history are relevant to the resolution of the defendant’s claim. On September 9, 1999, the defendant filed a motion to dismiss the charges of attempt to commit assault or, in the alternative, to exclude Kasperzyk’s testimony because the audiotapes of the radio communications of November 28, 1998, were destroyed or unavailable. The court conducted an evidentiary hearing on September 14, 1999, and subsequently denied the motion. The parties submitted the following testimony at the hearing and at other times during the trial.

Kasperzyk wore a radio on his uniform that allowed him to remain in communication with his partner and the police station. At the time of the incident, the New Haven police recorded all police radio transmissions on multitrack audiotape. The audiotape also contains recordings of 911 calls. The police changed the audiotape every twenty-four hours and normally retained them for thirty days. Kasperzyk made several broadcasts during the foot chase, but made no broadcasts when the defendant pointed the gun at his head.

Subsequent to the incident, Detective Peter Moller of the New Haven police department interviewed Kasperzyk and Tchakirides. He did not review or preserve the New Haven police audiotape of the radio communications made on the evening of November 28, 1998. Neither the defendant nor the state requested that the police preserve the audiotape at that time, nor did they make such a request during the subsequent thirty days. Pursuant to their policy of preserving the audiotape for at least thirty days, the police retained the audiotape until they reused it on February 8, 1999, seventy-two days after the incident occurred.

The defendant was arraigned on November 30, 1998. The court appointed trial counsel from the public defender’s office on that date. On January 28, 1999, the case was transferred from Part B to Part A, and on February 9,1999, the defendant received new trial counsel. On February 22, 1999, the state requested that the police preserve the audiotape of November 28, 1998. On February 26, 1999, the defendant filed a motion to preserve all audiotape related to the incident. Following the September 14, 1999 oral ruling by the court denying the defendant’s motion to dismiss or exclude testimony, the court filed a written memorandum of decision noting that the defendant had failed to request that the tapes be made available until more than twice the customary retention period had passed. The court con-eluded that under State v. Asherman, 193 Conn. 695, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985), the state’s failure to turn over the audiotapes did not violate the defendant’s state constitutional right to due process.

The defendant argues that the state had a duty to preserve the audiotape of the November 28,1998 broadcasts and that its failure to do so violated the defendant’s right to due process. The state responds that it had no such duty and, even if it did, the failure to preserve the tape did not violate the defendant’s due process rights under Asherman. We agree with the state that it had no duty to preserve the tape.

In State v. Cain, 223 Conn. 731, 613 A.2d 804 (1992), our Supreme court concluded that “despite the fact that the language of Practice Book § 749 (2) [now § 40-15 (2)], read literally, would cover the tape recording of a 911 telephone call, it is not within the intent of that language to cover such a tape recording and that, therefore, a tape recording of a 911 telephone call is not a statement within the meaning of [§ 40-15 (2)]that is subject to preservation and to disclosure. ...” (Internal quotation marks omitted.) State v. Cain, supra, 738-39.

In Cain, “[o]ur Supreme Court recognized that a rule requiring the preservation of every twenty-four hour tape would impose a heavy burden on municipalities.” State v. Wityak, 29 Conn. App. 455, 464, 616 A.2d 276, aff'd, 226 Conn. 470, 627 A.2d 1341 (1993). In Wityak, this court considered whether police radio broadcasts recorded on the same tapes as 911 calls were statements as defined by Practice Book § 749, now § 40-15 (2). In concluding that such recordings are not “statements,” this court reasoned that “[t]he burden of storing the recordings of the town radio and the police radio broadcasts would be as heavy as the burden for the storage and administration of tapes of the 911 emergency telephone calls because the same twenty-four hour tape records 911 calls, town radio broadcasts, and police broadcasts. The same intolerable financial and administrative burdens for the preservation of 911 tapes as those enumerated in Cain would pertain to the storage of the tapes at issue here.” State v. Wityak, supra, 464.

On appeal, our Supreme Court stated that this court “properly recognized that [t]he same rationale relating to tapes of 911 emergency telephone calls applies to the recordings of the [police radio broadcasts].” (Internal quotation marks omitted.) State v. Wityak, 226 Conn. 470, 474, 627 A.2d 1341 (1993).

In the present case, the court found that the New Haven police department records radio transmissions using twenty-four hour tapes, that each tape has several tracks, and that “[o]ne track is used for 911 calls and others are used to record police radio transmissions.” Therefore, we conclude that the police did not have a duty to preserve the police radio transmission audiotapes in this case. See id., 471-72. Although we reach our result for reasons different from those set forth by the trial court, the practical effect is to affirm the trial court’s judgment. See State v. Lewis, 245 Conn. 779, 801, 717 A.2d 1140 (1998); see also Ivey, Barnum & O’Mara v. Indian Harbor Properties, Inc., 190 Conn. 528, 532, 461 A.2d 1369 (1983).

The defendant further argues that the audiotape was evidence subject to disclosure pursuant to Practice Book § 40-11. Specifically, the defendant argues that the state had a duty to disclose the audiotapes of November 28, 1998, because they were potentially exculpatory. In other words, the defendant argues that the taped radio transmission, which we have concluded the police have no duty to preserve, is information or material subject to disclosure by the prosecuting authority upon written request by the defendant pursuant to Practice Book § 40-11.

“Our Supreme Court has . . . considered similar claims involving the erasure of tape recorded evidence. . . . See State v. Mullings, 202 Conn. 1, 519 A.2d 58 (1987).” (Citation omitted.) State v. Sims, 12 Conn. App. 239, 248, 530 A.2d 1069, cert. denied, 206 Conn. 801, 535 A.2d 1315 (1987). “In [Mullings] . . . the destruction of a [witness’] tape recorded statement to the police was at issue. The court held that in the absence of bad faith on the part of the police department, we have continued to adhere to [a] balancing test ... in determining whether a [witness’] testimony should be stricken. . . . Whether or not sanctions for nondisclosure should be imposed depends upon the extent of the state’s culpability in failing to make disclosable material available to the defense, when weighed against the amount of prejudice to the defense which resulted from the nondisclosure. . . . [T]his approach gives broad discretion to the trial court.” (Citations omitted; internal quotation marks omitted.) State v. Sims, supra, 249.

In this case, the court found that the destruction of the audiotape was not the result of bad faith on the part of the police. The court also noted that the police retained the tapes for twice as long as the customary period and that during that time “the defense had an equal right to seek (and likely obtain) a court order directing [the] same.” Furthermore, the court noted that the defendant was not prejudiced as a result of the destruction of the audiotape. We conclude that the court did not improperly deny the defendant’s motion to dismiss the charges of attempt to commit assault or to exclude the testimony of Kasperzyk.

Ill

The defendant claims finally that the court abused its discretion in failing to instruct the jury that it could draw an adverse inference from the state’s failure to preserve the audiotapes. The defendant argues that the state was in a position to preserve potentially exculpatory evidence and that its failure to do so warranted an .adverse inference instruction to the jury. We do not agree.

“Although an adverse inference instruction may be appropriate under certain circumstances, a trial court is not required to give an adverse inference instruction in every case involving missing evidence.” State v. Lyle, 40 Conn. App. 288, 292, 670 A.2d 871, cert. denied, 237 Conn. 903, 674 A.2d 1332 (1996). “[T]o prevail on appeal, [the defendant] must show both that the trial court abused its discretion in refusing to give the adverse inference instruction on the [missing evidence] and that it was more probable than not that the failure to give the requested instruction affected the result of the trial.” Id., 292-93. The defendant’s claim on appeal will fail unless both prongs are satisfied.

“The failure to produce [evidence] for trial [that] is available and [that] a party would naturally be expected to [produce] warrants an adverse inference instruction against the party who would be expected to [produce that evidence], Secondino v. New Haven Gas Co., 147 Conn. 672, 674-75, 165 A.2d 598 (1960).” State v. Lyle, supra, 40 Conn. App. 293. “In such a situation there is a logical nexus between the failure to [produce the evidence] and an adverse inference. In other words, it makes sense to infer that the [evidence], had [it been] available . . . would [have been] adverse to the party who would naturally be expected to [produce] that [evidence] but failed to do so.” (Internal quotation marks omitted.) Id.

Here, “there is no logical nexus between the inability of the state to produce the [audiotape] and an inference that, if it were available, it would be favorable to the defendant and adverse to the state. An inference to be drawn must be logical and reasonable and strong enough so that it can be found that it is more probable than not that the fact to be inferred is true.” “The adverse inferences that the defendant claims the jury would have drawn had it been instructed to do so, amount to nothing more than speculation on the part of the defendant.” State v. Figueroa, 235 Conn. 145, 175, 665 A.2d 63 (1995). Kasperzyk made no radio broadcasts during the part of the pursuit when the defendant pointed the gun at his head. It is not reasonably probable, in light of the record, that the jury would have found that the events surrounding the apprehension of the defendant varied from the witness’ description of those events, nor is it reasonably probable that the jury would have found the officers to be unreliable witnesses.

The court’s refusal to provide the jury with an adverse inference instruction did not constitute an abuse of discretion. Therefore, the defendant was not entitled to an adverse inference instruction under the circumstances.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes § 53a-59 (a) provides in relevant part: “A person is guilty of assault in the first degree when: (1) With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument ... or (5) with intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of the discharge of a firearm.”

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

       General Statutes (Rev. to 1997) § 53a-167c (a) (1), as amended by Public Acts 1998, No. 98-41, provides in relevant part: “A person is guilty of assault of a peace officer . . . when, with intent to prevent a reasonably identifiable peace officer . . . from performing his or her duties, and while such peace officer ... is acting in the performance of his or her duties, (1) such person causes physical injury to such peace officer

       General Statutes (Rev. to 1997) § 29-35 (a) provides in relevant part: “No person shall carry any pistol or revolver upon his person, except when such person is within his dwelling house or place of business, without a permit to carry the same issued as provided in section 29-28 . . . .”

       General Statutes § 21a-277 (a) provides: “Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marijuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”

       At trial the following colloquy, in relevant part, occurred between the prosecutor and Kasperzyk:
      ‘■[Prosecutor]: Now, as you continue chasing him to the area where that garage structure is located . . . could you tell the jury what happened, sir? What did you do?

        * * *
      “[Witness]: I followed [the defendant]. We went into the next yard on Carmel Street, and as he turned into the garage, he came right back out like he was going to turn the comer, and as he came out I shot a light in his face about two feet away from him. He took a gun he had in his hand and stuck it right in my face, and was like this with his face, and his teeth grinding down as he’s pressing the trigger, like squeezing, looking right at me.”

       The firing pin on that weapon is a protrusion of the hammer.

       At the conclusion of the hearing on the defendant’s motion, the court made the following ruling: “The moüon is denied. This is evidence the jury can consider. It could be subject to cross-examination argument, but it shouldn’t be excused from the jury. The motion is denied. This is relevant evidence for this case, given the facts as I have heard them thus far.”

       The state argued, inter alia, that “[the defendant] assumes that he did not rotate manually the gun’s cylinder after he held it up to Kasperzyk’s head and before Tchaldrides examined it . . . [and] he assumes that, at most, he pulled the trigger once . . . .”

       See footnote 8.

       The defendant also claims that the admission of the challenged testimony was not harmless error. Because we decline to review his claim that the testimony was unduly prejudicial, we need not address that issue.

       “[I]n determining whether the state’s failure to preserve evidence has resulted in a violation of a defendant’s due process right under article first, § 8, a trial court must employ the [Asherman] balancing test, weighing the reasons for the unavailability of the evidence against the degree of prejudice to the accused. More specifically, the trial court must balance the totality of the circumstances surrounding the missing evidence, including the following factors: the materiality of the missing evidence, the likelihood of mistaken interpretation of it by witnesses or the jury, the reason for its nonavailability to the defense and the prejudice to the defendant caused by the unavailability of the evidence.” (Internal quotation marks omitted.) State v. Kilroy, 61 Conn. App. 164, 173, 763 A.2d 59 (2000).

       Article first, § 8, of the constitution of Connecticut provides in relevant part: “No person shall ... be deprived of life, liberty or property without due process of law . . . .”

       In its August 10, 2000 memorandum of decision on the defendant’s motion to dismiss the charges of attempt to commit assault or to exclude the testimony of Kasperzyk, the court made the following factual findings: “The New Haven police department records radio broadcasts on a twenty-four hour taping system. Each twenty-four hour tape has several tracks. One track is used for 911 calls, and others are used to record police radio transmissions.” In its discussion, the court applied the Asherman test after “[assuming, without deciding, that Officer Kasperzyk’s radio transmissions were ‘statements’ within the meaning of Practice Book § 40-13 . . . .” The court noted, however, that “[t]here is a serious question as to whether such broadcasts are statements in light of the fact that they are recorded using the same system, that records 911 calls.” (Emphasis added.)

       A “statement,” as used in Practice Book § 40-13, is defined in Practice Book § 40-15 as: “(1) A written statement made by a person and signed or otherwise adopted or approved by such person; or
      “(2) A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by a person and recorded contemporaneously with the making of such oral statement.”

       See footnote 14.

       Because we conclude that the police had no duty to preserve the tape, we decline to review the trial court’s due process violation analysis under Asherman.

       Practice Book § 40-11 provides in relevant part: “(a) Upon written request by a defendant . . . the prosecuting authority . . . shall promptly, but no later than forty-five days from the filing of the request, unless such time is extended by the judicial authority for good cause shown, disclose in writing the existence of and allow the defendant in accordance with Section 40-7, to inspect, copy, photograph and have reasonable tests made on any of the following items:
      “(1) Exculpatory information or materials;
      “(2) Any . . . tangible objects . . . within the possession, custody or control of any governmental agency . . . which are material to the preparation of the defense . . .
      “(b) In addition to the foregoing, the defendant shall be entitled to disclosure of exculpatory materials in accordance with any applicable constitutional and statutory provisions.”

       In its memorandum of decision in which the court denied the defendant’s motion to dismiss, the court noted that “[a]s to prejudice to the defendant, any claim that the broadcasts contained information that would materially contradict Officer Kasperzyk’s trial testimony is speculative. . . . [N]o radio transmission was made during the key time when the officer confronted the defendant at the garage. In addition, on November 28, 1998, Officer Kasperzyk gave a sworn statement concerning his apprehension and confrontation with the defendant. This statement was provided to the defense for use during its cross-examination of the officer. . . . [T]he defendant was not prejudiced by the unavailability of the radio broadcast tape.”

       In State v. Malave, 250 Conn. 722, 738, 737 A.2d 442 (1999) (en banc), cert. denied, 528 U.S. 1170, 120 S. Ct. 1195, 145 L. Ed. 2d 1099 (2000), our Supreme Court abandoned the so-called missing witness rale in criminal cases, thereby abrogating a party’s entitlement to an adverse inference charge in criminal cases involving the admission of testimony given by a “missing witness.” Although Malave clearly applies in cases involving a missing witness, it is not clear whether Malave condemns the application of a Secondino analysis to criminal cases involving the failure to produce other forms of tangible missing evidence.

       See footnote 19.


source: Caselaw Access Project

author: DUPONT, J.

license: Public Domain

text:
    TERRY ANN WILLIAMS v. COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES ET AL.
    (AC 17948)
    Foti, Landau and Dupont, Js.

      Submitted November 1
    officially released December 18, 2001

      Philip L. Steele, for the appellant (plaintiff).

      Charles Krich, with whom, on the brief, was Philip A. Murphy, Jr., commission counsel, for the appellee (named defendant).
   Opinion

DUPONT, J.

This case comes to us on remand from our Supreme Court. See Williams v. Commission on Human Rights & Opportunities, 257 Conn. 258, 777 A.2d 645 (2001). The plaintiff, Terry Ann Williams, appealed to this court from the judgment of the trial court dismissing her appeal from the decision of the defendant commission on human rights and opportunities (commission) to dismiss her claim of employment discrimination. The plaintiffs complaint to the commission alleged employment discrimination by the defendant employer Shawmut Mortgage Company (Shawmut) based on a mental disability in violation of General Statutes § 46a-60 (a) (l). The trial court determined that the complaint to the commission was untimely pursuant to General Statutes § 46a-82 (e) and that the facts of the case did not warrant equitable tolling of the statute of limitations. This court affirmed the decision of the trial court, holding that because the plaintiff had not filed her complaint within 180 days of the alleged act of discrimination, the commission lacked jurisdiction to entertain the complaint. Williams v. Commission on Human Rights & Opportunities, 54 Conn. App. 251, 258, 733 A.2d 902 (1999), rev’d, 257 Conn. 258, 777 A.2d 645 (2001). The commission requested certification to appeal to our Supreme Court, which was granted. The Supreme Court reversed our decision, concluding that the 180 day filing requirement imposed by § 46a-82 (e) is not jurisdictional, although it is mandatory and must be complied with in the absence of a showing of waiver, consent or some other equitable tolling doctrine. That court remanded the case to us “for a specific determination of the various issues raised in the plaintiffs appeal [to the Appellate Court], namely, whether the untimeliness of the plaintiffs complaint should have been excused on the basis of waiver or equitable tolling.” Williams v. Commission on Human Rights & Opportunities, supra, 257 Conn. 289-90. The remand assumes that the plaintiffs complaint was untimely and requires this court to determine whether waiver or equitable tolling should apply.

On appeal in this court, the plaintiffs claims are that (1) the commission did not perform an investigation of the timeliness of the complaint and (2) the court should have concluded that the facts supported a case for equitable tolling or waiver. We conclude that the judgment of the trial court dismissing the appeal should be affirmed.

The following facts and procedural history are necessary for a disposition of this appeal. The plaintiffs complaint to the commission alleges that she was employed by Shawmut beginning in October, 1979. She continued to work at Shawmut until January, 1991. On January 28, 1991, Shawmut issued a written warning to the plaintiff concerning her work performance, which she refused to sign. She worked on January 29, 1991, and called in sick on January 30, 1991. She never returned to work at Shawmut. The plaintiff filed a workers’ compensation claim alleging work-related stress that began on January 28,1991. The plaintiff also filed successfully for disability benefits, alleging that she was disabled beginning on January 29, 1991. The plaintiffs complaint states that “[b]eginning in 1989 [she] began to suffer a disabling injury of an adjustment disorder with depressed mood as a result of harassment on the job.” The plaintiff did not notify Shawmut concerning the harassment or her mental condition prior to February, 1991. In February, 1991, the plaintiff had several conversations with a supervisor at Shawmut concerning her potential return to work. The plaintiff was offered a different position at her current salary, but she refused and did not want to return under the existing circumstances. On March 22, 1991, Shawmut notified the plaintiff that it had filled her position and that she had been replaced. The plaintiff was told that when she returned from her medical leave, she would be offered a position comparable to her former job. On April 15, 1991, the plaintiff refused an offer of another position at the company at her former pay rate. The plaintiff inquired about other opportunities within the company and was directed to discuss openings with one of the corporation’s recruiters. There is nothing to indicate that the plaintiff did so.

The plaintiff continued on full salary until May 21, 1991, and was eligible for partial salary through July 31,1991. In July, 1991, the plaintiff submitted a claim for long-term disability, and her application was approved. Following the approval of her long-term disability claim, the plaintiff began to receive $1384.96 a month in disability payments retroactive to January, 1991, the date that she discontinued employment at Shawmut. The disability payments expired on January 30, 1993, and Shawmut’s insurance carrier told the plaintiff that to receive payments beyond that period, she would have to provide medical evidence that she was unable to work at any occupation. During the period of her absence from Shawmut, the plaintiff also received $2233.08 a month in employment compensation. The plaintiff settled her workers’ compensation claim against Shawmut on July 7,1993, and received an additional $17,000 in compensation.

On January 4,1993, the plaintiff commenced employment with another employer, Colt Firearms. On August 3, 1993, Shawmut notified the plaintiff by letter of her federal rights to continue health insurance coverage. The letter noted a termination of employment date of January 23, 1993. On October 15, 1993, the plaintiffs attorney inquired about the termination and requested the plaintiffs return to work at Shawmut. On November 3, 1993, Shawmut’s managing counsel sent a letter to the plaintiff stating that a response would be provided once the necessary factual research was completed. In a letter dated December 17,1993, Shawmut’s managing counsel wrote to the plaintiffs attorney, stating: “I am writing to confirm our agreement with respect to Shawmut’s consideration of the claim you are asserting on behalf of your client, Terry Williams. As we discussed, my schedule has precluded my review of the various files which Shawmut maintains in this matter. Consequently, Shawmut agrees that it will not assert any time based or defense of statute of hmitations which might arise after your initial claim letter.”

The plaintiff filed a complaint with the commission on February 10, 1994, alleging employment discrimination on the basis of mental disability in violation of § 46a-60 (a) (1). On or about September 20, 1994, the commission dismissed the complaint because there was “no reasonable possibility that further investigation [would] result in a finding of reasonable cause inasmuch as it was determined that the facts are not likely to show that [the plaintiff was] terminated by respondent.”

The plaintiff appealed from the dismissal to the Superior Court. The plaintiff claimed, among other things, that the commission ignored the standard of review set forth in General Statutes § 46a-83 and that it improperly applied a standard of “reasonable likelihood” to a review after the initial complaint was filed rather than the “reasonable possibility” standard as stated in General Statutes § 48a-83 (b). On Februaxy 6, 1995, the Superior Court rendered a stipulated judgment that remanded the matter to the commission “with direction to reinstate the complaint of the plaintiff and for further proceedings in accordance with the law.”

On June 6, 1996, the commission issued a notice of final agency action, stating that it was dismissing the complaint on the basis of a finding of no reasonable cause due to lack of jurisdiction. On October 17, 1996, the commission rejected the plaintiffs request for reconsideration. On November 14, 1996, the plaintiff filed an appeal from the commission’s decision to the Superior Court. On November 13, 1997, the trial court dismissed the appeal.

According to § 46a-82 (e), a complaint of employment discrimination “must be filed within one hundred eighty days after the alleged act of discrimination . . . .” (Emphasis added.) One hundred and eighty days preceding the filing date would set August 14, 1993, as the statutory cutoff date for alleged acts of discrimination for complaints filed on February 10, 1994, the date on which the plaintiff filed. The court concluded that the employer’s agreement as expressed in its letter of December 17, 1993, did not prevent the commission from conducting a review of the timeliness of the plaintiffs complaint and that the doctrine of equitable tolling should not be invoked on the particular facts in this case to save the plaintiff’s complaint from dismissal pursuant to § 46a-82 (e). We must now determine whether the doctrine of equitable tolling applies.

The standard of review for appeals from a decision of the commission is well settled. “Judicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency’s findings of basic fact and whether the conclusions drawn from those facts are reasonable. . . . This so-called substantial evidence rule is similar to the sufficiency of the evidence standard applied in judicial review of jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably infeixed. . . . [I]t imposes an important limitation on the power of the courts to overturn a decision of an administrative agency . . . and to provide a more restrictive standard of review than standards embodying review of weight of the evidence or clearly erroneous action.” (Citations omitted; internal quotation marks omitted.) Dufraine v. Commission on Human Rights & Opportunities, 236 Conn. 250, 259-60, 673 A.2d 101 (1996).

The Uniform Administrative Procedure Act and General Statutes § 4-183 (j) (5) provide additional guidance concerning the proper standard of review and the substantial evidence rule concerning administrative decisions.

I

The plaintiff first claims that the court improperly upheld the dismissal of her complaint because the commission did not conduct an adequate factual investigation that justified a ruling that the complaint was untimely. See Dufraine v. Commission on Human Rights & Opportunities, supra, 236 Conn. 262; Adriani v. Commission on Human Rights & Opportunities, 220 Conn. 307, 319, 596 A.2d 426 (1991). The plaintiff asserts that after the case was remanded to the commission following the stipulated judgment “for further proceedings in accordance with the law, ” the commission assigned an investigator and then canceled afact-finding conference. She also argues that the investigator’s factual findings cannot be given weight by the commission when no investigation was conducted, and that the credibility of the testimony and evidence cannot be determined when no witnesses have testified. Specifically, the plaintiff argues that the commission did not adequately investigate whether she was actually terminated and, if she was terminated by Shawmut, the actual date of termination. The plaintiff states that such an investigation would assist in determining whether the complaint was timely.

The record clearly shows that the commission did investigate the plaintiffs claims. The commission filed several reports concerning the plaintiffs complaint and questioned the employer bank, Shawmut, with a written questionnaire. In addition, the dates and events are not in dispute with respect to any interaction between the parties occurring after January, 1991. The only dispute seems to be the inteipretation and consequences of those events. Specifically, the date on which the plaintiff would no longer be considered an employee of Shawmut was an issue, but the factual circumstances concerning those events were not in dispute. The precise date, however, that the plaintiff was either terminated from Shawmut or abandoned her job is irrelevant.

According to § 46a-82, the triggering event is “the alleged discriminatory practice” or “alleged act of discrimination,” not the date on which employment is terminated. Although the termination of an employee in and of itself could possibly be an act of discrimination, the plaintiff does not allege that in this case.

The plaintiff claimed in her complaint to the commission that a disabling injury began in 1989 “as a result of harassment on the job.” The plaintiff did not support this allegation with reference to any specific incidents of harassment and she did not provide any such details during the period in which the commission was investigating her claims. The plaintiff has a responsibility to present sufficient facts in the complaint so that the commission can properly investigate her claims. See Regs., Conn. State Agencies § 46a-54-68. Any claims regarding harassing incidents occurring in 1989, namely, acts at least three years before the plaintiff filed her complaint, would certainly be untimely under the 180 day filing requirement in the statute.

The commission is allowed to weigh the credibility of the witnesses and to draw inferences on issues in making a determination of whether the case should proceed. Adriani v. Commission on Human Rights & Opportunities, supra, 220 Conn. 317. The court concluded that the inferences drawn by the commission were supported by the evidence and that the commission did investigate the claims. We agree with the court’s conclusion.

II

The plaintiffs second claim is that the court improperly determined that the facts did not support a case for application of the doctrine of equitable tolling. The plaintiff argues that in a letter dated December 17,1993, Shawmut agreed that it would not raise a statute of limitations defense to her claim.

The commission is entitled to raise the statute of limitations defense independent of the defendant employer. Williams v. Commission on Human Rights & Opportunities, supra, 257 Conn. 265-66. Although the commission may raise the defense, the commission must consider whether the equitable tolling doctrine applies to an untimely complaint to the commission. Id. The plaintiff characterizes the communications between herself and the defendant employer, including the letter dated December 17,1993, as negotiations and argues that the statute of limitations should have been tolled while she attempted to resolve the situation amicably with the employer. The decision not to file her complaint promptly, however, was not caused or influenced by anything the commission did or said. The plaintiffs untimeliness, therefore, cannot be excused by the application of estoppel principles, waiver, or any doctrine of equitable tolling. See Brown v. Employer’s Reinsurance Corp., 206 Conn. 668, 674— 77, 539 A.2d 138 (1988).

The plaintiff also argues that exercising the court’s equitable powers to toll the statute of limitations in the present case would be consistent with the legislative purpose of the statute. On the facts of this case, that argument is unavailing. The plaintiffs last day of work was three years prior to the filing of her complaint and the alleged acts of discrimination, according to the plaintiff’s complaint to the commission, occurred between 1989 and 1991.

The purpose of the time limitation for bringing complaints is to provide an opportunity for conciliation and investigation, including the preservation of evidence, while the complaint is still fresh, and to give notice to the employer about a potential lawsuit. Posey v. Skyline Corp., 702 F.2d 102, 104 (7th Cir.), cert, denied, 464 U.S. 960, 104 S. Ct. 392, 78 L. Ed. 2d 336 (1983).

The commission argues that plaintiffs who want to invoke the doctrine of equitable tolling bear a heavy burden and that courts rarely extend such relief in employment discrimination cases. See Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 95-96, 111 S. Ct. 453, 112 L. Ed. 2d 435 (1990); 4 A. Larson, Employment Discrimination (2d Ed. 2001) § 72.06. The reason the Connecticut legislature determined that the deadline for filing employment discrimination complaints should be 180 days was to make our statute of limitations consistent with federal law concerning employment discrimination. See Williams v. Commission on Human Rights & Opportunities, supra, 257 Conn. 274-75. The purpose behind the short deadline in federal law, as opposed to deadlines in other causes of action, is because Congress intended to encourage prompt processing of employment discrimination complaints. Mohasco Corp. v. Silver, 447 U.S. 807, 825, 100 S. Ct. 2486, 65 L. Ed. 2d 532 (1980).

The plaintiff was represented by counsel throughout the period of this process, beginning in 1991 when she ceased her employment with Shawmut. There is a strong tendency not to apply the doctrine of equitable tolling when a party is represented by an attorney. Morse v. Daily Press, Inc., 826 F.2d 1351, 1353 (4th Cir.), cert. denied, 484 U.S. 965, 108 S. Ct. 455, 98 L. Ed. 2d 395 (1987); see also Cantrell v. Knoxville Community Development Corp., 60 F.3d 1177, 1179-80 (6th Cir. 1995); Heideman v. PFL, Inc., 904 F.2d 1262, 1266-67 (8th Cir. 1990), cert. denied, 498 U.S. 1026, 111 S. Ct. 676, 112 L. Ed. 2d 668 (1991). Here, the employer did not induce the plaintiff to delay filing her complaint, and we do not view the communications between the parties as negotiations.

The trial court held that the facts did not warrant application of the doctrine of equitable tolling. We conclude that there was sufficient evidence in the record to suppoxt that decision.

Connecticut courts look to federal law for guidance in intexpreting state antidiscrimination laws. Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 103, 671 A.2d 349 (1996). The general rule is that “[c]ourts have taken a uniformly narrow view of equitable exceptions of Title VII limitations periods.” Earnhardt v. Commonwealth of Puerto Rico, 691 F.2d 69, 71 (1st Cir. 1982). We note that the trial court in the present case stated that the “[p]laintiffs response to notice of the jurisdictional issue was a March 21, 1996 legal argument, but not factual assertions as to why the December, 1993 agreement would save [a complaint] which was then already untimely. ” We agree with the court’s reasoning that the complaint was already untimely when Shawmut’s counsel wrote the letter stating that Shawmut would not raise a statute of limitations defense.

The doctrine of equitable tolling on the facts of this case should not be used to save a complaint that had grown stale years before the plaintiff filed it. The plaintiff has not relied on any fact that would excuse her extreme tardiness. Usually, in employment discrimination cases, time limits will not be tolled absent some behavior of the employer designed to delay the filing of the complaint or fraud. See Manning v. Carlin, 786 F.2d 1108, 1109 (11th Cir. 1986); see also Cerbone v. International Ladies’ Garment Workers’ Union, 768 F.2d 45, 48-49 (2d Cir. 1985); Price v. Litton Business Systems, Inc., 694 F.2d 963, 965-66 (4th Cir. 1982). There is nothing in this case to indicate that the employer prevented the plaintiff from filing her complaint in 1989 when the alleged harassment began or in 1991 when the plaintiff was no longer an employee of Shawmut. Nor is there any evidence to indicate that the commission induced the plaintiff or acted in any way to cause her to fail to file her complaint with it in a timely manner.

The fact that the plaintiff was represented by counsel in early 1991 and continued to be represented through 1994 is another factor against invoking the doctrine of equitable tolling to save her claim under the facts of this case. See Lopez v. Citibank, N.A., 808 F.2d 905, 907 (1st Cir. 1987). In this case, the trial court was correct in failing to apply the doctrine of equitable tolling. The court properly dismissed the appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       Shawmut Mortgage Company was the plaintiffs employer at the time of the occurrences involved in this appeal. Shawmut Mortgage Company was acquired subsequently by fleet Bank. Although the successor defendant, Fleet Bank, filed an appearance with the trial court, it did not file a brief in the trial court or this court, and did not participate in oral argument in this court. Fleet Bank filed a notice in the trial court, stating that it would not file a brief in the trial court because its position was adequately stated by the commission. Fleet Bank did, however, participate in the action in the Supreme Court after the commission’s petition for certification to appeal from this court was granted.

       General Statutes § 46a-60 (a) provides in relevant part: “It shall be a discriminatory practice in violation of this section: (1) For an employer, by himself or his agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against him in compensation or in terms, conditions or privileges of employment because of the individual’s race, color, religious creed, age, sex, marital status, national origin, ancestry, present or past history of mental disorder, mental retardation, learning disability or physical disability, including, but not limited to, blindness . . . .”

       General Statutes § 46a-82 (e) provides in relevant part: “Any complaint filed pursuant to this section must be filed within one hundred and eighty days after the alleged act of discrimination . . . .”

       The plaintiff filed her complaint with the commission alleging a claim against her former employer, Shawmut. The commission originally dismissed the complaint for lack of reasonable cause and subsequently dismissed it on the ground that it was untimely. The trial court did not decide whether the 180 day limitation of § 46a-82 (e) was jurisdictional, although the plaintiffs brief in this court addressed the issue.

       The Supreme Court limited the certification to appeal to the following issue: “Did the Appellate Court improperly conclude that the 180 day time limitation for filing a complaint under General Statutes § 46a-82 (e) was subject matter jurisdictional?” Williams v. Commission on Human Rights & Opportunities, 252 Conn. 930, 746 A.2d 794 (2000).

       The defendant employer, Fleet Bank, claimed that the commission had no standing to obtain appellate review by the Supreme Court because the commission was not aggrieved by the decision of the Appellate Court. The Supreme Court, concluded that aggrievement existed because our decision impaired the integrity of the commission’s decision-making process and its ability to carry out its statutory responsibilities. Fleet Bank also argued in the Supreme Court that the 180 day time limit was jurisdictional.

       This court’s decision in Williams v. Commission on Human Rights & Opportunities, supra, 54 Conn. App. 255, also flatly concludes that the plaintiff’s complaint was untimely.

       A review of this claim would be precluded by the language of the Supreme Court’s remand, which appears to be limited to the specific issue of whether equitable tolling or waiver should apply. It is discussed, however, because it was an issue raised in the plaintiffs appeal.

       The plaintiffs brief makes no distinction between the doctrine of waiver and equitable tolling, but briefly mentions that the principles of estoppel should apply to excuse her delay in filing her complaint with the commission. We treat “equitable tolling” as a doctrine inclusive of waiver, consent, or estoppel, that is, as an equitable principle to excuse untimeliness. See Williams v. Commission on Human Rights & Opportunities, supra, 257 Conn. 284.

       See footnote 3.

       General Statutes § 4-183 (j) provides in relevant part: “The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are . . . (3) made upon unlawful procedure ... (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. If the court finds such prejudice, it shall sustain the appeal and, if appropriate, may render a judgment under subsection (k) of this section or remand the case for further proceedings. . . .”

       In addition, the plaintiff argues that the complaint was filed within 180 days of an act of discrimination if the occurrences in October, 1993, are considered acts of discrimination. In October, 1993, the plaintiff, acting through her attorney, requested a return to Shawmut, and Shawmut did not respond to the request. The plaintiff argues that Shawmut engaged in discrimination by refusing to accommodate her disability by granting her request to return to work at Shawmut. The plaintiff also alleges that the commission erred when it considered her to have been a former employee in October, 1993. We are not persuaded by the plaintiffs arguments.

       The trial court noted that the plaintiff did not allege in her complaint to the commission that the defendant employer would not rehire her for a specific vacancy, but rather claimed that she remained an employee from January, 1991, through October, 1993. The court concluded that the commission correctly rejected her assertion, and we agree.

       Section 46a-54^68 (a) of the Regulations of Connecticut State Agencies provides in relevant part: “The complainant, upon receipt of a copy of the respondent’s answer has a duty to provide any and all information in her or his possession or obtainable by reasonable means which relates to any contested allegation of the complaint or answer, including all documentary evidence and the names of persons having knowledge of the facts and circumstances alleged to constitute a discriminatory practice. The Commission may require the complainant to clarify or supplement any such information, and the duty to provide such information by the complainant shall be a continuing one. . . (Emphasis added.)
      Section 46a-54-68 (c) of the Regulations of Connecticut State Agencies provides: “A complainant is under a continuing duty to amend, supplement or correct any information provided within ten (10) days of discovering additional information relating to the allegations of the complaint or answer as they may have been amended. Any supplement to the information provided must demonstrate why the complainant was unable to provide such information at an earlier date.”


author: MIHALAKOS, J. FLYNN, J.,

text:
    ANTONIO JOHNSON v. STATE OF CONNECTICUT
    (AC 21623)
    Foti, Mihalakos and Flynn, Js.

      (One judge dissenting)
    Argued September 24
    officially released December 18, 2001

      Mark E. Blakeman, for the appellant (plaintiff).

      Michelle D. Truglia, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and William J. McCullough, assistant attorney general, for the appellee (defendant).
   Opinion

MIHALAKOS, J.

In this action, the plaintiff, Antonio Johnson, appeals from the judgment of the workers’ compensation review board (board) reversing the decision of the workers’ compensation commissioner (commissioner) to grant the plaintiff full salary benefits under General Statutes § 5-142 (a). On appeal, theplaintiff contends that the board improperly (1) reversed the commissioner’s findings that (a) the plaintiff was restraining an inmate and (b) his injuries were a direct result of the special hazards inherent in his guard duties, and (2) abused its discretion in finding facts and drawing unreasonable inferences contrary to those found by the commissioner. We disagree and affirm the board’s decision.

The following facts and procedural history are relevant to the disposition of the plaintiffs appeal. Since April, 1989, the plaintiff has been employed by the defendant state of Connecticut in the department of correction as a correction officer at the Osborn Correctional Institution (institution) in Somers. On August 11, 1996, the plaintiff was assigned to C block shower duty at the institution. That morning an inmate stepped out from the shower onto a tier, slipped on the floor, and, in an attempt to avoid falling, grabbed onto the plaintiff, who was passing by at the same moment. The plaintiff in turn grabbed onto the inmate and they fell awkwardly to the floor of the tier. As a result, the plaintiff suffered bilateral inguinal hernias, which have left him totally incapacitated at various times and unable to work. The plaintiff filed an incident report on August 12, 1996, but he did not file a disciplinary report on the inmate. Subsequently, the plaintiff filed a workers’ compensation claim under General Statutes § 31-307 that was accepted by the defendant. Accordingly, the plaintiff has received 75 percent of his full salary during periods of total disability from work.

The plaintiff then filed a claim for full salary benefits under § 5-142 (a). The commissioner conducted formal hearings on that claim on May 18, 1999, and August 12, 1999. On the basis of the plaintiffs testimony, the commissioner found, inter alia, that the plaintiff was “surprised by the inmate” and that he sustained compensable injuries “while in the actual performance of his duties, and while grabbing and restraining an inmate.” Accordingly, the commissioner found that the plaintiff was entitled to the benefit of his full salary while incapacitated because his injuries were “a direct result of the special hazards inherent in [his] guard duties as defined in [§ 5-142 (a)].”

The defendant petitioned the board for review on December 7, 1999. Meanwhile, on December 15, 1999, the defendant filed a motion to correct the commissioner’s findings of fact and award. In that motion, the defendant asked that the commissioner remove all reference to the word “restrained” or other variations of the word. The defendant also requested that the commissioner eliminate the word “surprised” and expressly delineate the special hazards the plaintiff faced during the incident. Further, the defendant sought to eliminate the findings that the plaintiffs injuries were a direct result of any such hazards and the conclusion that the plaintiff was entitled to full salary benefits under § 5-142 (a). The commissioner denied the motion on December 23, 1999.

In its petition to the board, the defendant claimed that the commissioner improperly (1) denied its motion to correct, (2) found that the plaintiff was restraining the inmate at the time of injury, (3) failed to delineate what special hazards inherent in the plaintiff’s duties were encountered at the time of injury, (4) assumed facts not in evidence, (5) failed to include material and undisputed facts in his findings, (6) applied the law to the facts through unreasonable inferences and (7) found that the plaintiff was entitled to his full salary as compensation under § 5-142 (a).

On January 25, 2001, the board rendered a decision agreeing with the defendant, and reversing the commissioner’s findings and award. The board concluded that the record contained no proof that supported the commissioner’s conclusions that the plaintiff was injured as a direct result of a special hazard involved with his duties or that he had restrained the inmate within the meaning of § 5-142 (a). Instead, because the event was an accident and not an attack, the board concluded that having to break someone’s fall unexpectedly could be deemed reasonably to be within the plaintiffs routine duties, as with any job, but that it cannot be categorized as a special hazard concomitant with those duties. Consequently, the board reversed the commissioner’s decision, leaving the plaintiff with 75 percent of his full salary for periods of incapacity under § 31-307. The plaintiff subsequently appealed on February 13, 2001.

Our standard of review in workers’ compensation appeals is well established. “The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Neither the review board nor this court has the power to retry facts. . . . [Although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and review board.” (Internal quotation marks omitted.) Dengler v. Special Attention Health Services, Inc., 62 Conn. App. 440, 445, 774 A.2d 992 (2001). “Although it is clear . . . that the board is prohibited from retrying the case or substituting its inferences for those drawn by the commissioner, the board certainly [is] free to examine the record to determine whether competent evidence supported the commissioner’s findings, inferences drawn from such findings and conclusions. The [commissioner] alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court. . . . Inferences may only be drawn from competent evidence. Competent evidence does not mean any evidence at all. It means evidence on which the trier properly can rely and from which it may draw reasonable inferences.” (Citation omitted; internal quotation marks omitted.) Id., 450-51.

I

The plaintiffs first claim centers on two findings made by the commissioner that culminated in an award to the plaintiff of full salary benefits. In the absence of either of those findings, the requirements of § 5-142 (a) cannot be met, and the plaintiff cannot obtain the desired benefits. On appeal to the board, the defendant argued that both findings were incorrectly arrived at on the bases of incompetent evidence and misapplication of the law to the facts. The board agreed with the defendant and reversed the commissioner’s award. We agree with the board.

A

The plaintiff first argues that the board improperly reversed the commissioner’s finding that the plaintiff was restraining the inmate at the time of the plaintiffs injuries. We disagree. Although the defendant conceded in its brief that the plaintiff met the first prong of the test under § 5-142 (a), it did not concede that the commissioner correctly found that the plaintiff had been restraining the inmate rather than merely holding on to him as they fell to the floor. As the trier of fact, the commissioner is entitled to make only reasonable findings upon competent evidence. See id., 451. “On appeal, the board must determine whether there is any evidence in the record to support the commissioner’s findings and award.” Bryan v. Sheraton-Hartford Hotel, 62 Conn. App. 733, 739, 774 A.2d 1009 (2001). The board could not retry the case to determine that no such proof existed on the record, but it was within the board’s power to reverse a finding for lack of competent evidence. See Dengler v. Special Attention Health Services, Inc., supra, 62 Conn. App. 450-51. The board’s determination that there was a lack of evidence was not tantamount to retrying the facts of this case.

The board reviewed the record and determined, consistent with the legislative history of § 5-142 (a), that the commissioner could not have found reasonably or fairly from the evidence that the plaintiff had restrained the inmate. The board further determined that “[t]here is no testimony in the record to support the conclusion that the [plaintiff] was ‘restraining’ the inmate . . . .” The board, however, did not make its own finding of fact. While we must give great weight to the construction given to the workers’ compensation statutes by the commissioner and the board, we conclude that the board’s determination was reasonable in light of the record and that the commissioner’s findings were not sustainable on the same evidence. Therefore, we conclude that the board properly decided that the commissioner’s finding was unreasonably drawn from the evidence before him.

B

The plaintiff next argues that the board improperly reversed the commissioner’s finding that the plaintiff was injured by a special hazard inherent in his guard duties. We do not agree. As noted in part I A, the board was empowered to determine whether the record supports the commissioner’s finding with competent evidence. The board determined that “the record contains no proof that catching hold of people who slip is an especially hazardous aspect of a state prison guard’s job.” The board further observed that “almost any employee in any business might be placed in the unexpected situation of having to break someone’s fall . . . .” As a result, the board concluded that the commissioner’s finding in this regard “lack[ed] a vital subordinate factual element.” Those determinations are not findings of fact by the board; rather, they are summations of the competency of the evidence before the commissioner. Again, we allot the decisions of the commissioner and the board their proper weight in light of the record. We conclude, therefore, that the board properly determined that the commissioner could not have found reasonably from the evidence that the plaintiff was injured by a special hazard inherent in his guard duties.

II

The plaintiffs last claim is that the board abused its discretion in finding facts and drawing unreasonable inferences contrary to those found by the commissioner. We disagree. Our discussion in part I controls the determination of the plaintiffs claim. The plaintiff is under the misconception that the board’s reversal of the commissioner’s decision means that it made its own findings of fact. That is incorrect. The board’s decision to reverse the commissioner’s decision was not based on its own findings of fact or inferences, but rather on a lack of competent evidence with which it could find support for the commissioner’s findings and award. As a result, the board’s decision fell squarely within the ambit of its authority and, accordingly, we conclude that it did not abuse its discretion.

The decision of the workers’ compensation review board is affirmed.

In this opinion FOTI, J., concurred.

FLYNN, J.,

dissenting. I respectfully dissent because I believe that the record fully supports the decision of the workers’ compensation commissioner (commissioner) that the plaintiffs injury occurred while “restraining an inmate” and resulted from a special hazard inherent in the duties of a prison guard. Consequently, I would conclude that the compensation review board (board) abused its discretion in reversing the commissioner’s decision.

“[T]he review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [T]he power and duty of determining the facts rests on the commissioner .... The commissioner may base his or her findings on circumstantial evidence .... Where the subordinate facts allow for diverse inferences, the commissioner’s selection of the inference to be drawn must stand unless it is based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Chappell v. Manafort Bros., Inc., 63 Conn. App. 630, 633, 778 A.2d 225, cert. denied, 257 Conn. 911, 782 A.2d 133 (2001). “Neither the review board nor this court has the power to retry facts.” (Internal quotation marks omitted.) Diluciano v. State Military Dept., 60 Conn. App. 707, 711, 760 A.2d 1019 (2000), cert. denied, 255 Conn. 926, 767 A.2d 98 (2001).

I first turn to the law pertaining to the plaintiffs eligibility for workers’ compensation benefits pursuant to General Statutes § 5-142 (a). “[T]o be eligible for benefits under § 5-142 (a), the state employee must (1) be a member of a specified group of state employees, (2) be engaged in the performance of a specified duty, and (3) the injury sustained must be as a result of ‘special hazards inherent in such duties.’ ” Stuart v. Dept. of Correction, 221 Conn. 41, 42 n.1, 601 A.2d 539 (1992).

In the present case, the board had no quarrel with the commissioner’s first finding that, as a prison guard, the plaintiff was a member of an enumerated group of employees whom the legislature intended to benefit by its enactment of § 5-142 (a). The board and the majority first find fault with the commissioner’s second necessary finding that the plaintiff was entitled to full compensation because he was injured while he was “restraining an inmate” within the meaning of § 5-142 (a) (1). The board concluded, and the majority agrees, that the finding was not supported by evidence in the record. I disagree for three reasons.

First, there was evidence in the record to support the commissioner’s finding that the injury of the plaintiff occurred while he was “restraining an inmate.” General Statutes § 5-142 (a) (1) does not define the term “restraining.” “When the legislature has not defined a term, it is appropriate to look to the common understanding expressed in the law and in dictionaries.” (Internal quotation marks omitted.) Connecticut Natu ral Gas Corp. v. Dept. of Consumer Protection, 43 Conn. App. 196, 200, 682 A.2d 547, cert. denied, 239 Conn. 938, 684 A.2d 707 (1996). According to Webster’s Third New International Dictionary, “restrain” means “to hold (as a person) back from some action, procedure, or course: prevent from doing something (as by physical or moral force or social pressure) . . . .’’At the hearing, the plaintiff testified that he was surprised when the inmate grabbed him while stepping from the shower onto the tier and that he, the plaintiff, instinctively grabbed and held the inmate, as he was trained to do, in an effort to control the situation and to ensure that no one, including himself or the inmate, was hurt. The plaintiff also testified that he simply responded as he was trained to do and that he would have responded in the same way had the inmate come out of the shower with a weapon. Further, the plaintiff testified that he did not determine that the inmate had slipped until the two of them were already physically entangled. It was reasonable for the commissioner to find, on the basis of that testimony, that the plaintiff sustained his injury while “restraining an inmate,” that is, that the injury was sustained while the plaintiff was employing physical force to hold the inmate in an effort to prevent him from taking some action or course.

Second, the statute does not require that a restraint occur as a result of an intended attack. The board determined, and the majority implicitly agrees, that the plaintiff could not have been “restraining an inmate” because the physical encounter between the two was the product of an accident, rather than an attack, and because there was no finding as to the nature of the inmate’s conduct when he fell. The board further determined that such a finding should be required in future cases. Contrary to the interpretation of the board, the factual finding to be made by the commissioner pursuant to § 5-142 (a) was whether a “restraint” occurred and not, in hindsight, whether the conduct of the inmate that prompted the restraint was made without menacing intent. Section 5-142 (a) contains no language that could fairly be interpreted to require such a finding. “We refrain from reading into statutes provisions that are not clearly stated and interpret statutory intent by referring to what the legislative text contains, not by what it might have contained.” (Internal quotation marks omitted.) State v. Stewart, 64 Conn. App. 340, 349, 780 A.2d 209, cert. denied, 258 Conn. 909, 782 A.2d 1250 (2001). The record shows that the plaintiff was “surprised by the inmate.” The commissioner could have drawn a permissible inference that in light of that surprise the plaintiff did not know what the inmate was doing when he grabbed the plaintiff. The plaintiffs grabbing of the inmate served to stop him from either a fall or a malicious attack.

Furthermore, the principles of statutory construction demonstrate that the board’s interpretation of § 5-142 (a) cannot be correct. “[Elementary rules of statutory construction [require] the presumption that the legislature did not intend to enact superfluous legislation. . . . [W]hen construing a statute, we do not interpret some clauses in a manner that nullifies others, but rather read the statute as a whole and so as to reconcile all parts as far as possible.” (Citation omitted; internal quotation marks omitted.) State v. Barber, 64 Conn. App. 659, 677, 781 A.2d 464, cert. denied, 258 Conn. 925, 783 A.2d 1030 (2001). General Statutes § 5-142 (a) (1) provides in relevant part that a plaintiff must sustain an injury “while . . . restraining an inmate ... or as a result of being assaulted in the performance of his duty . . . .” (Emphasis added.) An assault is an attack. If the legislature had intended to restrict eligibility for full salary benefits to only those situations in which an attack has occurred, the language, “as a result of being assaulted,” would have been sufficient; the phrase “while restraining an inmate” would be unnecessary and mere surplusage. The rules of statutory construction do not countenance such an interpretation.

Third, the defendant concedes that even if the plaintiff was not “restraining” the inmate, he was engaged “in the actual performance of . . . guard duties . . . or while attending ... an inmate”; General Statutes § 5-142 (a); when the injury occurred. Thus, by the defendant’s own concessions, the plaintiff has satisfied the first two requirements under § 5-142 (a): The plaintiff was a member of a class of employees whom the legislature intended to be eligible for benefits, and he sustained his injury while engaged in one of the statutorily specified duties. The dispositive issue, therefore, is whether the injury resulted from the special dangers inherent in such duties.

The majority concludes that the commissioner could not reasonably have found from the evidence that the plaintiffs injury was the result of a special hazard inherent in one of his statutorily enumerated duties. In other words, the majority agrees with the board’s conclusion that the plaintiffs injury was not a direct result of a hazard inherent “in the actual performance of . . . guard duties” or in “attending” an inmate because, in the majority’s reasoning, having to break someone’s fall unexpectedly can be deemed to be within the plaintiffs routine duties but cannot reasonably be categorized as a special hazard inherent in such duties. I respectfully disagree because of the surprise that existed and because of the danger inherent in such a workplace.

The plaintiff here was not just breaking someone’s fall but, rather, he was engaged in a physical encounter with a prison inmate, which was later determined to result from the inmate’s slip and fall. As this court stated in Lucarelli v. State, 16 Conn. App. 65, 69, 546 A.2d 940 (1988), “[t]he classifications of state employees enumerated in [§ 5-142 (a)] share a common characteristic: these employees, in the daily course of performing their duties, work in an atmosphere sometimes charged with emotion and stress, and face the possibility of confrontations with inmates . . . which confrontations often result in violence.” Thus, the hazard faced by those employees is the chance of being injured in a confrontation with an inmate. It is true, as the majority points out, that § 5-142 (a) was amended by the legislature through its ratification of No. 91-339 of the 1991 Public Acts in response to this court’s decision in Lucarelli, and, consequently, the statute as amended requires proof not only that a plaintiff was engaged in the actual performance of statutorily recognized duties but also that the injury that the plaintiff sustained was the result of one of the dangers inherent in such duties. That additional requirement of proof, however, does not change the fact that this court previously has recognized that the risk of physical confrontation with an inmate is a hazard inherently present in the performance of a prison guard’s duties. Because the plaintiff could not know the true intentions of the inmate in a split second, the plaintiff used a prescribed hold that led to his injury. The plaintiff in this case was involved in and was injured as a result of such a confrontation. It matters not that the inmate’s physical contact with the plaintiff was later determined to be innocuous.

The purpose of the legislature’s enactment of § 5-142 (a) was to recognize that certain employees, such as prison guards, deal with a class of society that a court has determined needed to be removed from society to protect law-abiding citizens from them. Jailing dangerous convicts removes the danger to society at large but, at the same time, concentrates that danger in the prisons where guards work. The danger inherent in this prison atmosphere caused the plaintiffs response and his injury.

Moreover, I find no case, and the defendant has cited none, in which this court or our Supreme Court has construed § 5-142 (a) subsequent to its being amended. “A state agency is not entitled ... to special deference when its determination of a question of law has not previously been subject to judicial scrutiny. . . . Where ... [a workers’ compensation] appeal involves an issue of statutory construction that has not yet been subjected to judicial scrutiny, this court has plenary power to review the administrative decision.” (Citations omitted; internal quotation marks omitted.) Diluciano v. State Military Dept., supra, 60 Conn. App. 711. This appeal presents such a situation and, accordingly, we need not defer to the decision of the board. Our review is, therefore, plenary. As such, I would construe sudden physical confrontations with inmates to be within the special hazards inherent in guarding, restraining or attending prison inmates, even where those confrontations later ar e determined to be caused by an accident, such as a fall, rather than from menacing intent.

Finally, the majority concludes that the board’s decision to reverse the finding of the commissioner did not result from the board’s own impermissible fact-finding or inferences. Rather, the majority concludes that the commissioner’s findings and award were not supported by competent evidence in the record. It cannot be overemphasized that where the facts in the record allow for various inferences, the inference of the commissioner must stand unless it results from a misapplication of the law to the facts or from an inference unreasonably drawn. Chappell v. Manafort Bros., Inc., supra, 63 Conn. App. 633.

In the present case, the commissioner inferred from the facts presented at the hearing that when the inmate grabbed hold of the plaintiff, the plaintiff, in turn, grabbed and restrained the inmate as he was trained to do, in order to retain control of the situation, and that such actions on the part of the plaintiff constituted a restraint. This was a reasonable inference. While the board was free to disagree with the inferences drawn from those facts, it was not free to override the commissioner’s findings unless his inferences were unreasonably or illegally drawn. That was not the case here and, accordingly, the board, contrary to law, abused its discretion in drawing its own inferences from the facts presented at the hearing. I would reverse the ruling of the board and affirm the commissioner’s findings and award.

       General Statutes § 5-142 provides in relevant part: “Disability compensation. (a) If any member ... of any correctional institution . . . sustains any irqury (1) while ... in the actual performance of . . . guard duties ... or while attending or restraining an inmate of any such institution or as a result of being assaulted in the performance of his duty and (2) that is a direct result of the special hazards inherent in such duties, the state shall pay all necessary medical and hospital expenses resulting from such injury. If total incapacity results from such injury, such person shall be removed from the active payroll the first day of incapacity, exclusive of the day of injury, and placed on an inactive payroll. He shall continue to receive the full salary which he was receiving at the time of injury subject to all salary benefits of active employees, including annual increments, and all salary adjustments, including salary deductions, required in the case of active employees, for a period of two hundred sixty weeks from the date of 1 he beginning of such incapacity. Thereafter, such person shall be removed from the payroll and shall receive compensation at the rate of fifty per cent of the salary which he was receiving at the expiration of said two hundred sixty weeks so long as he remains so disabled . . . .”

       The defendant requires a correction officer to file a disciplinary report on an inmate who has taken any hostile action against the officer. The plaintiff did not file such a report because, according to his testimony, the incident was an accident and not an assault.

       General Statutes § 31-307 provides in relevant part: “Compensation for total incapacity, (a) If any injury for which compensation is provided under the provisions of this chapter results in total incapacity to work, the injured employee shall be paid a weekly compensation equal to seventy-five per cent of his average weekly earnings as of the date of the injury . . . and the compensation shall not continue longer than the period of total incapacity.”

       See footnote 1. The plaintiff in this case had to show that he sustained injury while (1) either attending or restraining an inmate and (2) that the injury was a direct result of a special hazard inherent in his guard duties. See General Statutes § 5-142 (a).

       The defendant conceded that the plaintiff was attending to the inmate while in the performance of his guard duties. Such a finding by the commissioner, upon competent evidence, would have met the first prong of the test under General Statutes § 5-142 (a).

       The legislature amended General Statutes § 5-142 (a) by enacting Public Acts 1991, No. 91-339, to close aloophole that was made obvious in Lucarelli v. State, 16 Conn. App. 65, 546 A.2d 940 (1988), in which a correction officer was allowed to collect full salary benefits for an injury that was not related to a special hazard inherent in his job. The amendment added the second prong of the test now used in § 5-142 (a), which requires an injury to be the direct result of such a special hazard.

       The factual findings of the commissioner state in relevant part:
      “3. The Claimant was in the performance of his guard duties when the incident occurred on August 11, 1996: It happened when an inmate stepped out onto the tier after his shower. The inmate stumbled and grabbed hold of the Claimant and the Claimant grabbed hold of him.
      “4. The Claimant responded as he had been trained and grabbed and restrained the inmate when he was physically grabbed by the inmate.
      “5. The Claimant was surprised by the inmate as he came out of the shower onto the tier. He testified that his reaction would have been the same no matter what the inmate was doing, which was to grab hold of the inmate and restrain the inmate and control the situation.
      “6. At the time of the incident, the Claimant did not know what the inmate’s intentions were when he was grabbed. He testified he grabbed and restrained the inmate as best he could.
      “7. When the incident was over, the Claimant assessed the situation and did not feel that the inmate acted with intent or malice towards him and, therefore, the Claimant did not write up a disciplinary report on the inmate. . . .”

       The statute does not require the filing of a disciplinary report to prove that a plaintiff was guarding, attending or restraining an inmate. Further, we should not encourage a correction officer to file a disciplinary report against an inmate in a situation in which such a report is not warranted simply to ensure that he or she will be eligible for full salary benefits under § 5-142 (a). In the present case, the plaintiff did not file a disciplinary report, when, after evaluating the whole incident after it occurred, he concluded that the inmate meant him no harm, which is to his credit.


author: MIHALAKOS, J.

text:
    HIRAM DONAR v. KING ASSOCIATES, INC.
    (AC 20747)
    Foti, Mihalakos and O’Connell, Js.
    Argued September 13
    officially released December 18, 2001

      Thomas P. Chapman, for the appellant (defendant).

      John B. Farley, with whom, on the brief, was Kevin E. Majewski, for the appellee (intervening plaintiff-counterclaim defendant United Coastal Industries, Inc.).
   Opinion

MIHALAKOS, J.

The defendant, King Associates, Inc., appeals from the judgment on its counterclaim, rendered by the trial court in favor of the intervening plaintiff, United Coastal Industries, Inc., one of two plaintiffs in this action. On appeal, the defendant claims that the court improperly granted the intervening plaintiffs motion to strike the defendant’s substitute counterclaim. We disagree and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the defendant’s appeal. Sometime before December 2, 1996, the University of Connecticut contracted with the defendant to renovate the student recreation and athletic facility (facility) in Storrs. The defendant, a general contractor, contracted with the intervening plaintiff, a subcontractor, to remove segments of the facility’s roof. On December 2, 1996, the plaintiff, Hiram Donar, was employed by the intervening plaintiff. On that day, while removing segments of the facility’s roof, the plaintiff sustained injuries when he fell through a hole in the roofing structure.

On November 11, 1997, the plaintiff commenced a negligence action against the defendant. On November 25, 1997, the intervening plaintiff, that is, the plaintiffs employer, intervened in that action, seeking reimbursement of workers’ compensation benefits it had paid to the plaintiff. On September 20, 1999, the defendant filed a seven count substitute counterclaim, seeking indemnification from the intervening plaintiff.

In counts one, two, five, six and seven of its substitute counterclaim, the defendant alleged, in relevant part: “Pursuant to the contract between King Associates, Inc. and United Coastal Industries, Inc., the co-plaintiff, United Coastal Industries, Inc., is required by the contract to indemnify the defendant. The contract provided in Paragraph 4.6.1 [that] ‘to the fullest extent permitted by law, the subcontractor shall indemnify and hold harmless the owner, contractor . . . and agents and employees of any of them from and against claims, damages, losses and expenses, included but not limited to attorneys fees, arising out of or resulting from performance of the subcontractor’s work under this subcontract, provided that such claimed damage, loss or expenses attributable both to bodily injury . . . but only to the extent caused in whole or in part by negligent acts or omissions of the subcontractor, the subcontractor’s sub-subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expenses [was] caused in part by a party indemnified hereunder.’ ” (Emphasis added.)

Counts one, two, three, four and seven of the substitute counterclaim included the following language:

“The aforementioned contract specifically provides that the subcontractor, United Coastal Industries, Inc., shall indemnify and hold the defendant, King Associates, Inc., harmless even in the event that King Associates, Inc. is found to be negligent, as specified in Paragraph 4.6.1 of the aforementioned contract.”

On October 8, 1999, the intervening plaintiff filed a motion to strike the defendant’s substitute counterclaim in its entirety. The court granted the motion to strike, concluding, in effect, that the defendant’s allegation that the intervening plaintiff had a contractual obligation to indemnify the defendant for the defendant’s own negligence was not supported by the facts alleged in the counterclaim. From that ruling, the defendant appealed.

“The standard of review in an appeal challenging a trial court’s granting of a motion to strike is well established. A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court. As a result, our review of the court’s ruling is plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied.” (Citations omitted; internal quotation marks omitted.) Jewish Home for the Elderly of Fairfield County, Inc. v. Cantore, 257 Conn. 531, 537-38, 778 A.2d 93 (2001). “A motion to strike is properly granted if the complaint alleges mere conclusions of law that are unsupported by the facts alleged.” Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215, 618 A.2d 25 (1992).

In the present case, the facts alleged in the substitute counterclaim do not support the conclusion that the intervening plaintiff had a contractual obligation to indemnify the defendant for the defendant’s negligence. The defendant alleged that paragraph 4.6.1 of its contract with the intervening plaintiff supports that conclusion and included that paragraph in its counterclaim. That paragraph, which we previously set forth, contains definitive language that indicates otherwise. Specifically, the italicized segment of paragraph 4.6.1 discloses that the intervening plaintiff was required to indemnify the defendant only for losses caused in whole or in part by the intervening plaintiffs negligent acts or omissions.

We acknowledge that “[i]n view of the exclusivity of workers’ compensation relief, indemnity claims against employers as joint tortfeasors warrant the special additional limitation of an independent legal relationship.” Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 699, 694 A.2d 788 (1997); see also General Statutes § 31-284 (a). Because (1) the defendant, under the contract, was not entitled to indemnification from the intervening plaintiff for losses resulting from the defendant’s own negligence, and (2) the defendant did not allege the existence of another independent legal relationship that would require the intervening plaintiff to indemnify it under those circumstances, we conclude that the court properly granted the intervening plaintiffs motion to strike.

The judgment is affirmed.

In this opinion the other judges concurred.

       Among other things, the Workers’ Compensation Act, General Statutes § 31-275 et seq., “protects an employer by allowing the employer to obtain reimbursement for workers’ compensation benefits from a third party tortfeasor, either by becoming an intervening plaintiff in the employee’s cause of action or by bringing a separate action derivative of the employee’s cause of action.” (Internal quotation marks omitted.) Isaacs v. Ottaviano, 65 Conn. App. 418, 424, 783 A.2d 485 (2001); see General Statutes § 31-293 (a).

       “In an action for indemnity, as distinguished from an action for contribution, one tortfeasor seeks to impose total liability upon another.” Skuzinski v. Bouchard Fuels, Inc., 240 Conn. 694, 697 n.3, 694 A.2d 788 (1997).

       For clarity, we note that “[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.” (Citations omitted; internal quotation marks omitted.) Levine v. Massey, 232 Conn. 272, 277-78, 654 A.2d 737 (1995).