author: GRUENDEL, J.

text:
    STATE OF CONNECTICUT v. CHRISTOPHER CARRION
    (AC 31166)
    Bishop, Gruendel and West, Js.

      Argued February 3 —
    officially released April 19, 2011

      Daniel Jonah Krisch, special public defender, with whom were Michael S. Taylor and, on the brief, Dana M. Hrelic, for the appellant (defendant).

      Harry Weller, senior assistant state’s attorney, with whom, on the brief, were John A. Connelly, former state’s attorney, and Amy Sedensky, senior assistant state’s attorney, for the appellee (state).
   Opinion

GRUENDEL, J.

The defendant, Christopher Carrion, appeals from the judgments of conviction, following a jury trial, of four counts of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and four counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (2). On appeal, the defendant claims that the court improperly (1) admitted as substantive evidence the videotaped interview of the minor victim, D.L., (2) joined two cases for trial and (3) instructed the jury that “[t]he state is as much concerned in having an innocent person acquitted as in having a guilty person convicted.” We affirm the judgments of the trial court.

The jury reasonably could have found the following facts. From January, 2005, to March, 2007, the defendant lived with his parents in Prospect, and D.L. lived with her parents and siblings in Waterbury. During this time, the defendant and D.L. regularly spent time together, as the two were cousins whose families would often gather to share holidays, parties and other family occasions. On March 25, 2007, D.L., who was then seven years old, revealed to her mother, R.L., that the defendant previously had sexually abused her during visits in both Prospect and Waterbury. Soon thereafter, R.L. informed detectives of the Waterbury police department of her daughter’s revelations, and a formal investigation of the alleged abuse was initiated.

On April 9, 2007, D.L. underwent a forensic interview during which she recounted in detail the nature of the defendant’s sexually abusive behavior. This interview was recorded by videotape in its entirety and the substance of D.L.’s statements during the interview were later confirmed by the defendant himself in a voluntary statement that he made to Waterbury police detectives on May 18, 2007. Additionally, on May 21, 2007, D.L. underwent a physical examination that corroborated further her account of the defendant’s sexually abusive behavior.

The defendant subsequently was arrested and charged in two separate informations with four counts of sexual assault in the first degree in violation of § 53a-70 (a) (2), four counts of risk of injury to a child in violation of § 53-21 (a) (2) and two counts of risk of injury to a child in violation of § 53-21 (a) (1). The cases were consolidated and, following a jury trial, the defendant was convicted of the four counts of sexual assault in the first degree and the four counts of risk of injury to a child. Thereafter, the court imposed a total effective sentence of thirty years incarceration, execution suspended after twenty-three years, with ten years of probation. This appeal followed. Additional facts will be set forth as necessary.

I

ADMISSIBILITY OF VIDEOTAPED INTERVIEW

The defendant first claims that the court improperly admitted as substantive evidence the videotaped interview of D.L. Specifically, the defendant claims that, given the highly suggestive and leading manner in which the interviewer elicited answers from D.L., D.L.’s videotaped account of the defendant’s abusive conduct was coerced and is grievously unreliable. We disagree.

The following additional facts are relevant to the resolution of the defendant’s claim. Prior to trial, the defendant filed a motion in limine seeking to preclude the state from admitting as evidence the videotaped interview of D.L. In support of this motion, the defendant argued, inter alia, that the coercive nature by which D.L.’s description of the sexual abuse was procured rendered the videotaped interview grievously unreliable and, therefore, inadmissible.

On January 23, 2009, an evidentiary hearing was held on the defendant’s motion, dining which the defendant presented the expert testimony of a clinical psychologist, David M. Mantell. Mantell testified that in his professional opinion, “the validity of the investigation techniques” used during D.L.’s interview were “so seriously marked from the best practices, that . . . they invalidate [d] the procedural integrity of the [entire] evaluation.” More precisely, Mantell criticized the “suggestive techniques” utilized by the interviewer during D.L.’s examination; techniques that he found “produce^] results of a questionable memory . . . .” At the conclusion of Mantell’s testimony, the court denied the defendant’s motion in limine, ruling that “Mantell’s review [of the videotape], with the benefit of 20/20 hindsight . . . does show that some questions could be better worded . . . but not that [D.L.’s] testimony was coerced.” As the court explained, the “failure to comply with protocols or prevailing standards does not necessarily connote grievous unreliability,” as otherwise required for exclusion.

During the state’s case-in-chief, D.L. testified as to the defendant’s sexually abusive behavior; however, her testimony in this regard was often inconsistent with the details she provided during her videotaped interview. As such, following D.L.’s testimony, the state moved to introduce the portions of the videotaped interview that were inconsistent with D.L.’s trial testimony as substantive evidence pursuant to State v. Whelan, 200 Conn. 743, 753, 513 A.2d 86, cert. denied, 479 U.S. 994, 107 S. Ct. 597, 93 L. Ed. 2d 598 (1986), and § 8-5 of the Connecticut Code of Evidence. In response, the defendant argued that D.L.’s “statement[s] [during the interview] were taken in such circumstances that they undermine[d] the reliability of the statements]” and should be excluded under State v. Mukhtaar, 253 Conn. 280, 306-307, 750 A.2d 1059 (2000). The court then granted the state’s request to admit “those portions of the tape that [were] inconsistent with [D.L.’s] testimony,” and, at the behest of the defendant, the entire videotaped interview eventually was admitted and shown to the jury members.

The defendant now claims that the court improperly admitted D.L.’s videotaped interview as substantive evidence. Specifically, the defendant maintains that because of the overtly suggestive manner by which the interviewer obtained D.L.’s account of the defendant’s sexually abusive behavior, the videotaped interview should have been excluded as grievously unreliable.

Before addressing the merits of the defendant’s claim, we begin by setting forth the applicable standard of review and legal principles governing our analysis. “[T]he admissibility of evidence, including the admissibility of a prior inconsistent statement pursuant to Whelan, is a matter within the . . . discretion of the trial court. . . . [T]he trial court’s decision will be reversed only where abuse of discretion is manifest or where an injustice appears to have been done. . . . On review by this court, therefore, every reasonable presumption should be given in favor of the trial court’s ruling.” (Internal quotation marks omitted.) State v. Simpson, 286 Conn. 634, 643, 945 A.2d 449 (2008).

In State v. Mukhtaar, supra, 253 Conn. 306-307, our Supreme Court explained “that the linchpin of admissibility [under Whelan] is reliability: the [prior inconsistent] statement may be excluded as substantive evidence only if the trial court is persuaded, in light of the circumstances under which the statement was made, that the statement is so untrustworthy that its admission into evidence would subvert the fairness of the fact-finding process. In the absence of such a showing by the party seeking to exclude a statement that meets the Whelan criteria, the statement is admissible as substantive evidence; like all other evidence, its credibility is grist for the cross-examination mill. Thus, because the requirements that [were] established in Whelan provide a significant assurance of reliability, it will be the highly unusual case in which a statement that meets the Whelan requirements nevertheless must be kept from the jury.”

Here, there is no dispute that D.L.’s videotaped interview satisfies the criteria of a prior inconsistent statement articulated in Whelan and adopted in § 8-5 of the Connecticut Code of Evidence. Rather, the defendant argues, quoting Mukhtaar, that “in light of the circumstances under which the statement was made . . . the statement is so untrustworthy that its admission into evidence . . . subverted] the fairness of the fact-finding process.” Id., 307. Our review of the videotape, however, does not support the defendant’s characterization of D.L.’s forensic interview. Although it is true that the interviewer used leading questions to elicit information from D.L., it is equally true that D.L. freely volunteered information, including the identity of the defendant, when describing how she was sexually abused. In fact, the defendant’s claim that the “circumstances of the interview . . . made the videotape grievously unreliable” is nothing more than an attack on the credibility of D.L.’s statements during the interview, and, as our Supreme Court noted in Mukhtaar, “credibility is grist for the cross-examination mill.” State v. Mukhtaar, supra, 253 Conn. 307. Although we are mindful of the criticisms voiced by Mantell regarding the maimer in which the interview was conducted, we agree with the court that the “failure to comply with . . . prevailing standards does not necessarily connote grievous unreliability” such that the videotape should have been excluded. To the contrary, these criticisms are, and were in this case, appropriate for the juiy members to consider in weighing the overall credibility of D.L.’s description and allegations of the defendant’s sexual abuse. Finally, there is nothing “so unduly coercive or extreme” about the circumstances of D.L.’s interview that would serve to “grievously undermine the reliability generally inherent in such a statement, so as to render it, in effect, not that of’ D.L. herself. State v. Mukhtaar, supra, 306. “[L]ike statements satisfying the requirements of other hearsay exceptions”; id.; D.L.’s prior inconsistent statements during the videotaped interview were “presumptively admissible”; id.; and that presumption was never rebutted by the untrustworthiness advanced by the defendant.

Thus, based on our review of the record, we cannot say that the court’s decision to admit as substantive evidence D.L.’s videotaped interview constituted an abuse of discretion in the present case. Accordingly, the defendant’s claim fails.

II

JOINDER

The defendant next claims that the court improperly joined and consolidated the two cases stemming from his sexual abuse of D.L. in Prospect and Waterbury. Specifically, the defendant maintains that, given the high degree of factual similarity between the two cases, it was impossible for the jury to consider the cases separately, thereby depriving him of a fair trial. We are not persuaded.

The following additional facts are relevant to the disposition of the defendant’s claim. On September 11, 2008, the defendant filed a motion to sever the Prospect and Waterbury cases, claiming that a “joinder of [these cases] would prejudice his right to a fair trial and . . . result in substantial injustice.” In response, the state filed a motion to consolidate the cases, arguing, inter alia, that the “charges involve[d] discrete, easily distinguishable factual scenarios . . . and [that a consolidated] trial [would] not be complex.” On January 15, 2009, the court granted the state’s motion to consolidate, ruling that, pursuant to State v. Sanseverino, 287 Conn. 608, 629, 949 A.2d 1156 (2008), overruled in part on other grounds by State v. DeJesus, 288 Conn. 418, 437, 953 A.2d 45 (2008), “evidence from the Prospect case . . . would be cross admissible in the trial of the Waterbury case” to show a common plan or scheme and, therefore, joinder of the two cases was warranted. Thereafter, at the conclusion of the defendant’s consolidated trial, the court instructed the jury members that “[t]he fact that there are two separate informations should not in any way be held against the defendant. There are two separate informations only because the state alleges that the crimes took place in two separate locations.”

The defendant now claims that the court improperly joined the Prospect and Waterbury cases. The defendant argues that because of the factual similarities between the two cases, the jury could not possibly consider the cases separately and, as such, he was deprived of his right to a fair trial.

“General Statutes § 54-57 and Practice Book § 41-19 permit a trial court to join similar charges in pending cases against a common defendant. Our prior decisions have made clear that the trial court enjoys broad discretion in this respect and that its decision to consolidate will not be disturbed in the absence of manifest abuse of that discretion. . . . [T]his court consistently has recognized a clear presumption in favor of joinder and against severance . . . and, therefore, absent an abuse of discretion . . . will not second guess the considered judgment of the trial court as to the joinder or severance of two or more charges. ... On appeal, [t]he defendant bears a heavy burden of showing that the denial of severance resulted in substantial injustice, and that any resulting prejudice was beyond the curative power of the court’s instructions.” (Citations omitted; internal quotation marks omitted.) State v. Gupta, 297 Conn. 211, 222-23, 998 A.2d 1085 (2010).

“Where evidence of one incident can be admitted at the trial of the other, separate trials would provide the defendant no significant benefit. It is clear that, under such circumstances, the defendant would not ordinarily •be substantially prejudiced by joinder of the offenses for a single trial. . . . We consistently have found joinder to be proper if we have concluded that the evidence of other crimes or uncharged misconduct would have been cross admissible at separate trials.” (Citation omitted; internal quotation marks omitted.) State v. Sanseverino, supra, 287 Conn. 628-29.

“[T]o establish a common scheme, [i]t is not enough that the two offenses are similar. . . . [Rather], the characteristics of the two offenses must be sufficiently distinctive and unique as to be like a signature. . . . We repeatedly have applied, however, a more liberal approach to admitting evidence of misconduct to prove a common plan or scheme in sex crime cases than in other types of cases. . . . We generally have determined that such evidence is relevant to a common scheme or plan of sex crimes provided that three conditions are met: [T]he prior offenses (1) are not too remote in time; (2) are similar to the offense charged; and (3) are committed upon persons similar to the prosecuting witness.” (Citations omitted; internal quotation marks omitted.) Id., 631.

Here, the court relied on the three factors articulated in Sanseverino to conclude that joinder of the Prospect and Waterbury cases was appropriate, as evidence in each case was cross admissible in the other. As the court reasoned, the “two offenses occurred over the same time period . . . [involved a] course of conduct [that] seems to be similar . . . [a]nd, of course . . . were both committed against the same person.” Nonetheless, the defendant maintains that the court abused its discretion in joining the cases because the two cases were so factually similar that the jury could not possibly consider each of the offenses separately. As our Supreme Court in Sanseverino emphasized, however, the factual similarities of cases — including timing, nature of the crimes and the characteristics of the victim or victims — is an important, and arguably, dispositive, consideration that trial courts must identify in determining that joinder is justified based on the cross-admissibility of evidence. Indeed, were it not for the factual similarities between the Prospect and Waterbury cases, joinder of the cases would not be appropriate under the Sanseverino standard. Moreover, our review of the record discloses, and the defendant concedes, that the prosecutor and the court took great caution in informing the jury members to consider each case separately based on the entirety of the evidence presented. See State v. Gupta, supra, 297 Conn. 223 (“[t]he defendant bears a heavy burden of showing that . . . any resulting prejudice [of joinder] was beyond the curative power of the court’s instructions” [internal quotation marks omitted]).

Therefore, we conclude that the court thoroughly considered the propriety of joining the Prospect and Waterbury cases pursuant to the methodology of Sanseverino and, accordingly, we “will not second guess the considered judgment of the trial court as to the joinder” of those two cases. (Internal quotation marks omitted.) Id. Thus, the defendant’s claim of improper joinder cannot prevail.

m

JURY INSTRUCTION

The defendant’s final claim is that the court improperly instructed the jury that “[t]he state . . . does not want the conviction of an innocent person . . . [as] [t]he state is as much concerned with having an innocent person acquitted as in having a guilty person convicted.” Specifically, the defendant argues that this instruction improperly bolstered the credibility of the prosecutor and weakened the defendant’s presumption of innocence. The defendant concedes that he did not preserve this claim at trial and now seeks review pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We review the defendant’s claim because the record is adequate for review and the claim is of constitutional magnitude. See State v. Peeler, 271 Conn. 338, 369 n.29, 857 A.2d 808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005). Nevertheless, on its merits, the defendant’s claim fails to satisfy Golding's third prong.

The following additional facts are relevant to the resolution of the defendant’s claim. On Friday, February 6, 2009, the court held a charging conference in chambers with both parties to discuss “the charge and [make] further amendments or refinements to it” as needed. The following Monday, February 9, 2009, the court explained that, although it had not provided a final draft of the charge to counsel, “the draft that [the parties had was] essentially in substance what the charge to the jury [would be] . . . [and that] a final draft [would be provided to the parties] after closing arguments . . . .” At this time, defense counsel noted that she “did have an opportunity to review the jury charge . . . [and] had made a request to certain changes with regard to the reasonable doubt charge, and [had] take[n] exception as to those changes that did not take place.” The court responded that defense counsel’s exception was noted and that “both counsel . . . [would have] another opportunity to record any exceptions that they may have” after the charge was delivered to the jury. At the conclusion of its charge, the court inquired of defense counsel as to whether she had further objection to the instruction that was delivered to the jury members. Defense counsel then reiterated the “exception to the charge as to certain objections which [were] provided to the court in writing with regard to the reasonable doubt charge.” At no time, however, did defense counsel object to the specific language that the defendant now claims was improper.

“It is well established in Connecticut that unpreserved claims of improper jury instructions are reviewable under Golding unless they have been . . . implicitly waived.” State v. Kitchens, 299 Conn. 447, 468, 10 A.3d 942 (2011). It is also well established that “[wjaiver is an intentional relinquishment or abandonment of a known right or privilege. ... It involves the idea of assent, and assent is an act of understanding. . . . The rule is applicable that no one shall be permitted to deny that he intended the natural consequences of his acts and conduct. ... In order to waive a claim of law it is not necessary . . . that a party be certain of the correctness of the claim and its legal efficacy. It is enough if he knows of the existence of the claim and of its reasonably possible efficacy. . . . Connecticut courts have consistently held that when a party fails to raise in the trial court the constitutional claim presented on appeal and affirmatively acquiesces to the trial court’s order, that party waives any such claim [under Golding}.” (Citation omitted; internal quotation marks omitted.) Id., 469.

In Kitchens, our Supreme Court stated that “[c]ases in which Connecticut courts have deemed jury instructions implicitly waived under Golding fall into three categories.” Id., 475. In one of those categories, “courts have found waiver when there was no on-the-record discussion of the challenged jury instruction but the defense acquiesced in, or failed to object to, the instruction as given, and engaged in other trial conduct consistent with acceptance of the instruction.” Id., 477. “This is in accord with case law stating that a party may not pursue one course of action at trial for tactical reasons and later on appeal argue that the path he rejected should now be open to him.” (Internal quotation marks omitted.) Id., 480. Of course, a “constitutional claim [of instructional error] that has been waived does not satisfy the third prong of the Golding test because, in such circumstances, we simply cannot conclude that injustice [has been] done to either party ... or that the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial . . . .” (Internal quotation marks omitted.) Id., 467.

In the present case, we deem the defendant’s unpreserved instructional challenge implicitly waived in accordance with our Supreme Court’s ruling in Kitchens. Here, there “was no on-the-record discussion of the challenged jury instruction but the defense acquiesced in, or failed to object to, the instruction as given, and engaged in other trial conduct consistent with acceptance of the instruction.” Id., 477. Not only was defense counsel given an opportunity to review “in substance” the court’s charge before it was delivered to the jury members, but the court also afforded defense counsel the opportunity to object to any portion of the charge after the jury instructions had been given. At no time, either before or after the instructions were delivered, did defense counsel object to the specific language now challenged by the defendant for the first time on appeal. Moreover, in concluding that defense counsel “acquiesced in, or . . . engaged in . . . conduct consistent with acceptance of the instruction”; id.; we find it telling that an objection was raised with respect to other aspects of the court’s charge, other than the instruction that is now claimed to be improper. Indeed, because “Golding is not intended to give an appellant a second bite at the apple”; (internal quotation marks omitted) id., 480; to now afford the defendant relief would amount to an ambuscade of the trial judge. See also State v. King, 289 Conn. 496, 505, 958 A.2d 731 (2008) (“[t]he purpose of the [rule of practice that claims of instructional error are reviewable only if they are raised at trial] is to alert the court to any claims of error while there is still an opportunity for correction in order to avoid the economic waste and increased court congestion caused by unnecessary retrials” [internal quotation marks omitted]).

Therefore, because we deem the defendant’s claim of instructional error implicitly waived under Kitchens, the defendant’s unpreserved claim fails to satisfy the third prong of Golding. Accordingly, the defendant’s claim fails.

The judgments are affirmed.

In this opinion the other judges concurred.

       The conduct charged in this case occurred on various dates between January, 2005, and March, 2007. Although § 53-21 has been amended since that time, that amendment is not relevant to the merits of this appeal. For convenience, we refer to the current revision of the statute.

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

       The state charged the defendant separately, given the fact that his sexual abuse of D.L. occurred allegedly at different times and at different locations in Prospect and Waterbury.

       The defendant was found not guilty of the remaining two counts of risk of injury to a child.

       As the commentary to § 8-5 of the Connecticut Code of Evidence explains, “[§] 8-5 (1) incorporates the rule of State v. Whelan, [supra, 200 Conn. 753]”; Conn. Code Evid. § 8-5 (1), commentary; with respect to the “prior inconsistent statement” exception to the general hearsay rule. Pursuant to § 8-5, a prior inconsistent statement of a witness is “not excluded by the hearsay rule, provided the declarant is available for cross-examination at trial . . . Id., § 8-5. A prior inconsistent statement of a witness is one that is “(A) ... in writing or otherwise recorded by . . . videotape . . . (B) the writing or recording is duly authenticated as that of the witness, and (C) the witness has personal knowledge of the contents of the statement.” Id., § 8-5 (1). The defendant does not dispute that D.L.’s videotaped interview qualifies as a prior inconsistent statement.

       Under Golding, “a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, supra, 213 Conn. 239-40. Although the defendant also requests review pursuant to the plain error doctrine; see Practice Book § 60-5; such review is not warranted in light of our decision to review the defendant’s claim pursuant to Golding.

       We note that the record is devoid of any such written objection. We further note that it is well established that “[i]t is the appellant’s burden to provide an adequate record for review.” (Internal quotation marks omitted.) State v. Morales, 121 Conn. App. 767, 775, 996 A.2d 1206, cert. denied, 298 Conn. 909, 4 A.3d 835 (2010).


source: Caselaw Access Project

author: LAVINE, J.

license: Public Domain

text:
    LEYLA MIRJAVADI ET AL. v. ANTHONY VAKILZADEH ET AL.
    (AC 30608)
    Bishop, Lavine and Bear, Js.

      Argued September 24, 2010 —
    officially released April 19, 2011

      Brenden P. Leydon, for the appellant (named plaintiff).

      Lloyd D. Pedersen, with whom, on the brief, was Catherine A. Stewart, for the appellee (defendant Maria Varone).
   Opinion

LAVINE, J.

The plaintiff, Leyla Mirjavadi, appeals from the judgment of the trial court, rendered after a trial to the court, in favor of the defendant Maria Var-one. The plaintiff claims that the trial court made erroneous factual findings in determining that the defendant was not negligent when the plaintiff’s daughter, Saba Fabriz (Saba), was abducted by the daughter’s father during a visit supervised by the defendant. We agree that some of the underlying facts found by the court were clearly erroneous and conclude that the erroneous findings undermine our confidence in the court’s fact-finding process and its decision. Accordingly, we reverse the judgment of the trial court and remand the case for a new trial.

The following facts and procedural history in this disturbing matter are relevant to the plaintiffs appeal. The plaintiff and Orang Fabriz were Iranian citizens, married to one another, who came to the United States in 1995 with Saba to visit relatives. While in the United States, the plaintiff filed for divorce from Fabriz and was granted political asylum. The plaintiff was represented by attorney Barbara Green during the divorce proceedings.

While the divorce was pending, Fabriz was granted visitation rights with respect to Saba. It was agreed, however, that these visits would be supervised at all times. Initially, the supervised visitations occurred at the house of the plaintiffs brother, Zach, but the location had to be moved due to outbursts by Fabriz. After one visit was held at the Stamford police station, the plaintiff and Fabriz agreed to hold visits at the office of a family therapist, Barbara Ivler. Eventually, because these visits were successful, Ivler recommended that the visits occur in a more natural setting. To facilitate visitation outside Ivler’s office, the plaintiff, upon Green’s recommendation, hired the defendant to supervise them.

On October 5, 1996, the defendant supervised an afternoon visit between Fabriz and Saba scheduled to last from 2 until 5 p.m. at the Stamford Town Center mall. As was the usual practice, the plaintiff took Saba to the mall and left her with the defendant for the visit. Also, as had become the usual practice, the uncle of both the plaintiff and Fabriz, Anthony Vakilzadeh, was present to participate in the visit.

At the beginning of the visit, the defendant accompanied Fabriz, Saba and Vakilzadeh to a restaurant in the mall. Soon after entering the restaurant, Fabriz left with Saba and went to a bookstore across from the restaurant. When the defendant could not locate Fabriz and Saba in the bookstore, Vakilzadeh told her that Fabriz may be shopping with Saba for a coat or that he may be resting somewhere because he had not been feeling well that day. Vakilzadeh later that day told the defendant that, according to his wife, Fabriz had left the mall to go to Washington, D.C., for legal advice.

Unbeknownst to the defendant, prior to the October 5, 1996 visit, Vakilzadeh had purchased two airplane tickets to Turkey for Fabriz and Saba. Additionally, Fabriz had arranged, using Vakilzadeh’s credit card, for a limousine to transport him to the mall on October 5, 1996, and then to take him and Saba to John F. Kennedy International Airport (JFK airport). The police later determined that Fabriz and Saba had left the United States on a 6 p.m. flight on October 5, 1996, from JFK airport to Istanbul, Turkey. The plaintiff has not seen Saba since October 5, 1996, and has not received any communication from her during this period of nearly fifteen years.

The plaintiff commenced this action on July 14,1998. Once the plaintiff withdrew her complaint as to Vakilzadeh, Green and Green & Gross, P.C.; see footnote 2 of this opinion; the court ultimately was asked to determine liability only as to the defendant for negligence and breach of fiduciary duty. Specifically, the plaintiff alleged that the abduction was caused by the defendant’s negligence and carelessness because she had failed to supervise the visitation properly in order to prevent Saba from being kidnapped; she had failed to report the kidnapping immediately to any authority or to the plaintiff; she had misrepresented the time the kidnapping occurred; she had failed to ensure that Fabriz did not have his passport during a supervised visitation; she had failed to prevent the kidnapping; she had failed to keep a proper lookout for Saba; she had been inattentive to her duties during the visit; and she had permitted Fabriz to be with Saba unsupervised.

At the conclusion of trial, the court found in favor of the defendant, stating that “[e]ach time a liability exposition has been attempted in draft by the court, its elements appear shaky, not cumulative, and hugely overwhelmed by the superseding intentional (and criminal) conduct of . . . Fabriz and . . . Vakilzadeh coupled with the uncertainty of the sporadic and vague information [the defendant] was provided along the continuum of the ongoing divorce.” In reaching its decision, the court made certain factual findings that are the subject of this appeal.

Concerning the time of the abduction, the court was uncertain when Fabriz and Saba left the company of the defendant and Vakilzadeh but found that it was “probably between approximately 2:15 and after 4 p.m.” The court credited the testimony of the defendant and found that the defendant could have concluded that Fabriz had absconded with Saba after 3 p.m.

The court also considered the defendant’s state of mind concerning the risk of abduction. Specifically, it found that the defendant was not negligent in thinking that Fabriz could not leave the country because, to her knowledge, he did not have a passport and, if such a belief was unjustified, it was Green’s responsibility to have notified the defendant. Additionally, the court stated that an agreement between the parties, which permitted a certain named law student to substitute as a supervisor if the defendant became unavailable, was inconsistent with a high degree of fear concerning risk of abduction. In an articulation concerning the court’s evaluation as to the purpose of the supervised visitation, the court stated that the defendant’s role as a supervisor as of October 5, 1996, had become “rather routinized,” similar to the role someone might play in visitation situations in which abduction is not a risk.

On January 14, 2010, pursuant to an order by this court, the court rendered an articulation concerning its findings as to the purposes for which the plaintiff hired the defendant and for the supervised visits in general. The court concluded that the goal for the supervision was “at least in part, motivated by the perception that a person ought to be in place against the prospect that the father might try to return to Iran with the child.” The court further concluded that “it appeared to the attorney representing the child’s mother that there was a risk that the father might flee to Iran, and with that in mind, she hired [the defendant] whose limited prior such supervision included an instance where [the defendant] physically stopped or thwarted an attempted abduction. However, by the time of October 5,1996, this concern had been allowed to wither, in multiple ways.”

The plaintiff now seeks a new trial, claiming that three of the court’s factual determinations were unsupported by the evidence at trial and were clearly erroneous. Specifically, the plaintiff claims that the court (1) erred in finding that the abduction could have occurred as late as after 4 p.m., (2) erred in finding that the parties agreed to allow a law student to serve as a substitute supervisor for visitations if the defendant was unavailable and (3) erroneously minimized the defendant’s initial purpose in supervising the visitations. We agree with the plaintiff that some of the court’s factual findings were erroneous and, accordingly, remand the case for a new trial.

We begin our analysis by setting forth the proper standard of review. “To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it ... or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Misthopoulos v. Misthopoulos, 297 Conn. 358, 377, 999 A.2d 721 (2010).

“Where . . . some of the facts found are clearly erroneous and others are supported by the evidence, we must examine the clearly erroneous findings to see whether they were harmless, not only in isolation, but also taken as a whole. ... If, when taken as a whole, they undermine appellate confidence in the court’s fact finding process, a new hearing is required.” (Internal quotation marks omitted.) Lambert v. Donahue, 78 Conn. App. 493, 507, 827 A.2d 729 (2003).

The plaintiffs first challenge relates to her allegation that the defendant failed to report the abduction in a timely manner. Specifically, the plaintiff challenges the court’s finding that Fabiiz could have absconded with Saba as late as after 4 p.m. In reaching this conclusion, the court credited the testimony of the defendant over the testimony of other witnesses, such as Vakilzadeh. Although “it is the exclusive province of the trier of fact to weigh the conflicting evidence”; (internal quotation marks omitted) LPP Mortgage, Ltd. v. Lynch, 122 Conn. App. 686, 700, 1 A.3d 157 (2010); we agree with the plaintiff that the evidence does not support a factual finding that the abduction could have occurred that late in the day.

According to the defendant’s testimony, the plaintiff arrived at the mall around 5 p.m. and called the police when she was informed that Saba was missing. The defendant then went to the police station to meet with Detective James McAuliffe, who was involved in the investigation surrounding Saba’s abduction. When she arrived at the police station, the defendant noted that McAuliffe already had typed up some information about the sequence of events surrounding the abduction of Saba, which later was included in the affidavit in support of the arrest warrant for Vakilzadeh and presented at trial. Specifically, the defendant testified that the paper McAuliffe showed her said something about 4:15 and 4:30. In response, the defendant told McAuliffe that it was at least 4:15 p.m. when the abduction occurred, but that she had not been wearing a watch that day. During her testimony at trial, the defendant explained that when she told the police that it was at least 4:15 p.m. when Fabriz took Saba, she did not mean it was later than 4:15 p.m., but that they already were gone by 4:15 p.m.

Indeed, the defendant would not have personally known if Saba was abducted after 4 p.m. because she testified that she last saw Saba and Fabriz twenty to twenty-five minutes after 2 p.m. when the visit commenced. Specifically, she testified that twenty to twenty-five minutes after the 2 p.m. visit had began, Fabriz and Saba went into the bookstore across from the restaurant. The defendant believed that the two were in the bookstore but testified that she was not certain because she could not see the children’s section from where she was sitting. After an additional fifteen to twenty minutes from the time Saba and Fabriz left the restaurant, the defendant could not find either of them in the bookstore. Therefore, we conclude that the record does not support a finding that the abduction took place as late as after 4 p.m.

We also conclude that this error was harmful and undermines our confidence in the trial court’s finding of no negligence because it leads us to conclude that the court’s analysis of the specification of negligence relating to the delay in reporting the abduction was seriously flawed. The court did not specifically address the specification of negligence relating to the delay in reporting; however, the timing sequence was, of necessity, central to a proper analysis of this issue.

The plaintiffs next two arguments relate to her allegation that the defendant failed to supervise the visit properly. First, she argues that the evidence does not support a finding that the parties had agreed that a certain named law student would substitute as a supervisor for the visits if the defendant were unavailable. Although the record reveals that a substitute for the defendant was discussed by the parties, we agree that the evidence does not support the conclusion that the parties ever reached an agreement.

Green testified that she and Fabriz’ attorney prepared a draft agreement to establish the parameters of the supervised visitations with the defendant. The draft agreement contemplated that a certain named law student would serve as a substitute if the defendant were unavailable to supervise a particular visitation. Green noted twice during her testimony, however, that this agreement was never executed. The defendant also testified that she had reviewed the draft agreement and suggested changes but testified that neither the original agreement nor the one containing her suggested changes was ever executed. The defendant added that, while on vacation during the period in which she was employed by the plaintiff, Green called her because the plaintiff did not want a substitute to supervise but rather wanted the defendant.

The evidence supports a finding that the parties seriously considered a substitute for the defendant, but both Green and the defendant testified that a written agreement was never executed. The evidence also shows that the plaintiff rejected the idea that a substitute could fill in for the defendant while she was on vacation. We conclude that the evidence does not support the finding that the parties agreed that a certain named law student would serve as a substitute for the defendant, if the defendant were unavailable for a particular visit.

Furthermore, we conclude that this error was harmful because it affected the court’s finding that the abduction was not foreseeable. The court stated “that the parties to the ongoing divorce agreed that, should [the defendant] be unavailable for a visitation session, a certain named law student would stand in. This can also be seen as inconsistent with a high degree of fear of.. . Fabriz leaving the country, for no one, so far as the evidence showed, delivered cautionary instructions to said law student.” (Emphasis added.) This finding by the court indicates that the court failed to fully appreciate the ongoing risk of abduction. That is because the court mistakenly assumed that the certain named law student, who it concluded had not been informed about the risk of abduction, was competent to perform the job of supervising the visitation and that the parties had agreed that the law student would serve as a substitute for the defendant.

Next, the plaintiff argues that the court erroneously minimized the defendant’s initial purpose in supervising visitations, which, according to the plaintiff, was to prevent abduction. Specifically, the plaintiff argues that while the court recognized that one of the purposes of the supervised visits was to prevent abduction, it greatly minimized that purpose in finding that the defendant was not negligent. We conclude that while the plaintiff couches her claim in terms of an erroneous factual finding, and the defendant accepts that characterization, the court’s determination of the emphasis to be placed on the purposes of the supervised visitations is actually more akin to a legal conclusion and, therefore, our review is plenary. See Location Realty, Inc. v. Colaccino, 287 Conn. 706, 717, 949 A.2d 1189 (2008) (“[t]o the extent that we are required to review conclusions of law ... by the trial court, we engage in plenary review”).

While the court’s finding as to the purposes behind the supervised visitation was a factual finding, the court’s conclusion concerning how much weight to assign to each purpose was a legal conclusion. The court’s conclusion as to the purposes was part of its determination of whether the abduction was foreseeable and its evaluation of the scope of the legal duty that the defendant owed to the plaintiff, whether the defendant’s actions were the proximate cause of the abduction and whether Fabriz’ and Vakilzadeh’s conduct constituted a superseding cause. The court erred in concluding that because the circumstances surrounding the visitations seemingly had changed, that vitiated the obligation of the defendant to continue to ensure that no abduction occurred. Although we do not express an opinion as to whether the abduction was foreseeable on October 5, 1996, we do conclude that the court’s error indicates a misunderstanding of what foreseeability is under our law and that this flawed analysis, in combination with the two clearly erroneous findings, undermines our confidence in the court’s conclusion that the defendant was not negligent.

As noted, the determination of whether an event was foreseeable is an essential part in an analysis of proximate cause. “Cause in fact, occasionally referred to as actual cause, asks whether the defendant’s conduct caused the plaintiffs injury. Thus, if the plaintiffs injury would not have occurred but for the defendant’s conduct, then the defendant’s conduct is a cause in fact of the plaintiffs injury. Conversely, if the plaintiffs injury would have occurred regardless of the defendant’s conduct, then the defendant’s conduct was not a cause in fact of the plaintiffs injury. . . . Lines must be drawn determining how far down the causal continuum individuals will be held liable for the consequences of their actions. . . . This line is termed proximate cause. Proximate cause establishes a reasonable connection between an act or omission of a defendant and the harm suffered by a plaintiff. . . . Proximate cause serves to [temper] the expansive view of causation [in fact] . . . by the pragmatic . . . shaping [of] rules which are feasible to administer, and yield a workable degree of certainty. . . . This court has defined proximate cause, as [a]n actual cause that is a substantial factor in the resulting harm . . . .” (Citations omitted; emphasis in the original; internal quotation marks omitted.) Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 605-606, 662 A.2d 753 (1995). “The question to be asked in ascertaining whether proximate cause exists is whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant’s act.” (Internal quotation marks omitted.) Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 218, 947 A.2d 320 (2008).

The determination of whether an event was foreseeable is also an essential part in an analysis of superseding cause. The doctrine of superseding cause has been abolished by our Supreme Court “in cases . . . wherein a defendant claims that its tortious conduct is superseded by a subsequent negligent act or there are multiple acts of negligence.” (Internal quotation marks omitted.) Sullivan v. Metro-North Commuter Railroad Co., 292 Conn. 150, 167, 971 A.2d 676 (2009). Our Supreme Court, however, has concluded that abolishing the doctrine “does not necessarily affect those cases where the defendant claims that an unforeseeable intentional tort, force of nature, or criminal event supersedes its tortious conduct.” (Emphasis added; internal quotation marks omitted.) Id.

While the trial court properly addressed the issue of foreseeability in its analysis of whether the defendant’s conduct was a proximate cause of the abduction and whether the conduct of Vakilzadeh and Fabriz constituted a superseding cause, we conclude that the court mistakenly conflated the foreseeability of the abduction with the seemingly diminished probability that it would occur. The Restatement (Second) of Torts § 435 provides: “(1) If the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable. (2) The actor’s conduct may be held not to be a legal cause of harm to another where after the event and looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.” 2 Restatement (Second), Torts, Legal Cause § 435, p. 449 (1965). Comment (b) to this section also provides: “[I]f the actor should have realized that his conduct might cause harm to another in substantially the manner in which it is brought about, the harm is universally regarded as the legal consequence of the actor’s negligence. This is true not only when the conduct is negligent because of the probability that it will bring about harm in this particular manner, but also when the probability that the harm will thus result to another, though realizable by the actor, is not so great as of itself to make the actor’s conduct unreasonably dangerous.” Id., comment (b), pp. 451-52. The term “improbable,” conversely, is understood to mean “unlikely ... to occur.” Webster’s Third New International Dictionary (1961).

We also note that “[o]ur threshold inquiry has always been whether the specific harm alleged by the plaintiff was foreseeable to the defendant. ... By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary [person] in the defendant’s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? . . . The idea of risk in this context necessarily involves a recognizable danger, based upon some knowledge of the existing facts, and some reasonable belief that harm may possibly follow. . . . Accordingly, the fact finder must consider whether the defendant knew, or should have known, that the situation at hand would obviously and naturally, even though not necessarily, expose [a plaintiff] to probable injury unless preventive measures were taken.” (Citations omitted; internal quotation marks omitted.) LePage v. Horne, 262 Conn. 116, 124, 809 A.2d 505 (2002).

In its memorandum of decision and its two responses to the articulations ordered by this court, the court clearly based its conclusions, to a significant degree, on a determination that an abduction on October 5, 1996, was improbable. In addressing the concern over the risk of abduction, the court stated that “by the time of October 5, 1996, this concern had been allowed to wither, in multiple ways. [The defendant] had been given to understand that the father no longer possessed the passport; the father was ostensibly to become employed in New Jersey, and the numerous visits preceding the fateful one had concluded rather without incident.” In a subsequent articulation, the court stated that: “It may be however, instead of the passage of time always increasing the likelihood of foreseeability of an awful event, the sands can be shifting and the untoward event may shrink in sound viewing to where the reasonable prudent person is not rightly to be held. So here, one sees the unusual setting of the decreasing foreseeability of the tragic event as time and events wore on. Usually, of course, time illuminates.”

We appreciate the extent to which the trial court struggled with the complexities of this case. But the court’s conclusion that the concern over possible abduction was “wither [ing]” and that, as a consequence, the foreseeability of abduction was “decreasing” is not supportable. The question is not whether the risk of abduction was low or had diminished over time, but whether it remained foreseeable that Saba could be abducted by her father. See Lodge v. Arett Sales Corp., 246 Conn. 563, 572, 717 A.2d 215 (1998) (first step in analysis of whether duty exists and extent of such duty is to determine foreseeability of plaintiffs injury); see also id., 575-77. A decreased likelihood that an event will occur does not necessarily mean that it becomes unforeseeable. The basis of the court’s conclusion that the defendant was not negligent and that the conduct of Vakilzadeh and Fabriz constituted a superseding cause, therefore, rests on a flawed analysis of the foreseeability of the abduction and cannot stand.

Our conclusion should not be read to suggest that the defendant’s potential legal culpability can in any way be equated with that of Fabriz or Vakilzadeh. The relative responsibility of the parties is not before us. The tort claim against the defendant is in no way comparable to the deliberate, wilful and criminal conduct of those two wrongdoers. We decide only the issue presented — whether the court’s factual errors undermine our confidence in its analysis and the result reached. We conclude that it does.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Mirjavadi brought this action individually and as the next friend of her daughter, Saba Fabriz. Mirjavadi, however, is the only party to this appeal and we refer to her as the plaintiff in this opinion.

       In addition to Varone, the plaintiff named as defendants Anthony Vakilzadeh, Barbara Green and Green & Gross, P.C. The plaintiff withdrew her complaint as to Vakilzadeh, Green and Green & Gross, P.C., after the trial began.

       The defendant began supervising visits on July 20,1996, and the location of the visits shifted from a public library, to a Stamford nature center and finally to the mall.

       In the related criminal case, Anthony Vakilzadeh’s name is spelled “Vakilzaden.” See State v. Vakilzaden, 272 Conn. 762, 865 A.2d 1155 (2005); State v. Vakilzaden, 251 Conn. 656, 742 A.2d 767 (1999) (en banc).

       The plaintiff and Fabriz are also cousins. They became husband and wife as a result of an arranged marriage.

       Previously, Vakilzadeh had driven Fabriz to and from his visits with Saba.

       This case was delayed for several years because Vakilzadeh was criminally prosecuted. See State v. Vakilzaden, 272 Conn. 762, 865 A.2d 1155 (2005) (reversing judgment of dismissal); State v. Vakilzaden, 251 Conn. 656, 742 A.2d 767 (1999) (en banc) (reversing judgment of dismissal). Following his second appeal, Vakilzadeh entered a guilty plea to one count of custodial interference in the first degree in violation of General Statutes § 53a-97 (a) (2), one count of conspiracy to commit custodial interference in the first degree in violation of General Statutes §§ 53a-48 and 53a-97 (a) (2) and one count of hindering prosecution in the second degree in violation of General Statutes (Rev. to 1995) § 53a-167 (a) and was sentenced to two years in prison. He served nine months before being released.

       Green testified that she had sent Fabriz’ passport to the Pakistan Embassy after removing pages containing the plaintiffs picture and Saba’s name from it. Although Fabriz had an Iranian passport, certain matters concerning Iranian nationals are handled through the Pakistan Embassy because the United States does not have diplomatic relations with Iran.

       The court issued two articulations in this case. As noted, the court issued its first articulation on January 14, 2010, and provided answers to two questions concerning whether the court concluded that the purpose of the supervised visitations was a concern of a risk of abduction and what the court concluded were the purposes underlying the decision to hire the defendant. The court issued the second articulation on December 21, 2010. The court addressed whether it considered the defendant’s failure to keep Saba in her sight amounted to negligent failure to supervise, whether the conduct of Vakilzadeh and Fabriz constituted a superseding cause that absolved the defendant of any liability and whether it concluded that it was foreseeable to the defendant that Fabriz might attempt to abduct Saba.

       The record does not indicate what this time period was referencing.

       The transcript provides in relevant part:
      “[The Defendant’s Counsel]: When you said it was at least 4:15, what were you trying to describe?
      “[The Defendant]: Well, that it was at least 4:15 that they were already gone. . . .
      “[The Defendant’s Counsel]: So, you weren’t saying that it was at least 4:15 or maybe later when—
      “[The Defendant]: Oh, no. . . .
      “[The Defendant’s Counsel]: What were you trying to describe when you said it was at least 4:15?
      “[The Defendant]: That it had happened already prior to 4:15.”

       The affidavit supporting the arrest warrant for Vakilzadeh also noted that the limousine driver, Ahmed Ismail, told the police that he drove Fabriz and a young child from the Stamford mall to JFK airport. The driver stated that he dropped them both off at JFK at 3:15 p.m.

       We note, however, that that the court failed to make a finding as to the scope of the defendant’s duty. “The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual ipjury. . . . [T]he existence of a duty of care is an essential element of negligence. ... A duty to use care may arise from a contract, from a statute, or from circumstances under which a reasonable person, knowing what he knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result from his act or failure to act.” (Citations omitted; internal quotation marks omitted.) Sturm v. Harb Development, LLC, 298 Conn. 124, 139-40, 2 A.3d 859 (2010).
      “The test for determining legal duty is a two-pronged analysis that includes: (1) a determination of foreseeability; and (2) public policy analysis. . . . Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. . . . The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercised. ... [In other words], would the ordinary [person] in the defendant’s position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result? . . . Foreseeability notwithstanding, it is well established that Connecticut courts will not impose a duty of care on the defendants if doing so would be inconsistent with public policy.” (Citations omitted; internal quotation marks omitted.) Monk v. Temple George Associates, LLC, 273 Conn. 108, 114-16, 869 A.2d 179 (2005).
      The trial court released its memorandum of decision on June 19, 2008, and at no point did the court provide an analysis as to the scope of the defendant’s duty to supervise Saba. It is unclear to us how the court could determine whether or not the defendant was negligent on October 5, 1996, without first reaching a conclusion as to the duty the defendant owed to the plaintiff. See Lodge v. Arett Sales Corp., 246 Conn. 563, 571, 717 A.2d 215 (1998) (“[t]he determination ofwhetheraduty exists between individuals is a question of law” [internal quotation marks omitted]).


author: BISHOP, J.

text:
    SIXTO SIERRA v. C AND S WHOLESALE GROCERS, INC., ET AL.
    (AC 31567)
    Bishop, Robinson and Borden, Js.
    Argued January 31 —
    officially released April 19, 2011

      Neil Johnson, for the appellant (plaintiff).

      Nicholas W. Francis, for the appellee (defendant C & S Wholesale Grocers, Inc.).
   Opinion

BISHOP, J.

In this workers’ compensation matter, the plaintiff, Sixto Sierra, appeals from the decision of the workers’ compensation review board (board), which affirmed the decision of the workers’ compensation commissioner for the first district (commissioner) dismissing his claim for permanent partial disability benefits for 50 percent of the lumbar spine based on the impairment to his abdominal wall. We affirm the decision of the board.

The following facts, as found by the commissioner, and procedural history are relevant to the plaintiffs appeal. At the time of the events giving rise to this appeal, the plaintiff was employed by the defendant C & S Wholesale Grocers, Inc., where he worked as a selector, using a pallet jack in a warehouse to pick grocery orders, place them onto pallets, wrap them and load them onto a truck. On December 14, 2004, while in the course of his employment, the plaintiff suffered a crushing injury to his abdomen. The plaintiff was transported to Baystate Medical Center in Springfield, Massachusetts, where he eventually underwent three abdominal surgeries. The plaintiff testified that, since the day of the injury, he has been in constant pain, primarily in his stomach and back.

In his report dated May 25, 2006, W. Jay Krompinger, an orthopedic surgeon who had been treating the plaintiff for his injuries in 2005, opined that, from an orthopedic standpoint, the plaintiff had reached maximum medical improvement, with an 8 percent permanent partial disability to the lumbar spine.

On July 16, 2007, general surgeon, Rocco Orlando III, opined that the injury to the plaintiffs abdominal wall equaled a 50 percent disability of the back. In a subsequent letter dated December 1, 2007, Orlando further opined that the plaintiff had no capacity for physical work but, with vocational training, might be able to develop work skills for sedentary employment. In his subsequent deposition, Orlando clarified his impairment rating by explaining that he provided an assessment of the impairment to the plaintiffs abdominal wall, not the lumbar spine, as he is not qualified to make an assessment regarding an impairment to the lumbar spine. Orlando posited that the American Medical Association guidelines (guidelines) are deficient in dealing with impairments to the abdominal wall, and, therefore, his assessment of a 50 to 70 percent impairment was based mostly on his own personal opinion.

On the basis of the foregoing, the commissioner concluded that the plaintiff sustained a 50 percent permanent partial disability of his abdominal wall but that General Statutes § 31-308 does not include the abdominal wall as a body part for which a disability benefit may be awarded. The commissioner, accordingly, rejected the plaintiffs claim for permanent partial disability benefits for 50 percent of the lumbar spine based on the impairment to his abdominal wall. The commissioner found Krompinger’s 8 percent permanent partial disability rating to the lumbar spine to be credible and persuasive and determined that the plaintiff is not permanently and totally disabled.

The plaintiff filed a motion to correct various findings made by the commissioner, which was denied in its entirety. Thereafter, the plaintiff appealed to the board, claiming that the commissioner’s decision was contrary to the Supreme Court’s opinion in Barton v. Ducci Electrical Contractors, Inc., 248 Conn. 793, 730 A.2d 1149 (1999). In essence, the plaintiff claimed on appeal that the evidence that he presented as to the permanent disability to his abdominal wall, an unscheduled body part under § 31-308, should have caused an equal increase in the permanent disability assessed to his back, a scheduled body part under § 31-308. The board disagreed and affirmed decision of the commissioner. This appeal followed.

Our standard of review for workers’ compensation issues is well established. “The commissioner is the sole trier of fact and [t]he 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. . . . The review [board’s] hearing of an appeal from the commissioner is not a de novo hearing of the facts. . . . [I]t is [obligated] to hear the appeal on the record and not retry the facts. ... On appeal, the board must determine whether there is any evidence in the record to support the commissioner’s findings and award. . . . Our scope of review of [the] actions of the [board] is [similarly] . . . limited. . . . [However] [t]he decision of the [board] must be correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” (Internal quotation marks omitted.) DiBlase v. Logistec Connecticut, Inc., 123 Conn. App. 753, 757-58, 3 A.3d 128, cert. denied, 299 Conn. 908, 10 A.3d 524 (2010).

In this appeal, as in his appeal to the board, the plaintiffs sole claim is that the commissioner failed to attribute his abdominal wall injury to his back, and, therefore, the commissioner’s ruling contravened the Supreme Court’s holding in Barton v. Ducci Electrical Contractors, Inc., supra, 248 Conn. 793. We are not persuaded.

In Barton, the Supreme Court concluded that § 31-308 (b) allows for compensation for injuries only to scheduled body parts. Id., 811. The court stated, however, that “an injured employee could receive compensation for injury to an unscheduled body part or organ under the amended version of § 31-308 (b), to the extent that the injury related to the loss of or loss of use of a scheduled body part or member, because such injury always would be compensable as it pertained to a scheduled body part or member.” Id., 809. Thus, the teaching of Barton is that although a commissioner has the discretion to award benefits for injury to an unscheduled body part, to the extent such an injury implicates a scheduled body part, a trial commissioner is not required, by Barton, to make such a correlation. Indeed, such an award must be based on competent medical evidence. Safford v. Owens Brockway, 262 Conn. 526, 533, 816 A.2d 556 (2003). “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.” (Internal quotation marks omitted.) Hummel v. Marten Transport, Ltd., 114 Conn. App. 822, 845, 970 A.2d 834, cert. denied, 293 Conn. 907, 978 A.2d 1109 (2009). “It is properly within the commissioner’s discretion to accept or reject all, or part of, a medical opinion.” Safford v. Owens Brockway, supra, 536.

Here, the commissioner found that although Orlando initially attributed a 50 percent disability to the plaintiffs back on the basis of his abdominal injury, Orlando later indicated that he was not qualified to make an assessment of an injury to the lumbar spine and, accordingly, limited his assessment to the plaintiffs abdominal wall injury. Additionally, as noted earlier, Orlando indicated that the guidelines are inadequate for rating impairments to the abdominal wall and that he had based his rating on personal experience. The board concluded, and we agree, that the commissioner was within his province to reject Orlando’s opinion in light of the “deficiencies identified with [his] testimony . . . .” The only other evidence presented as to the impairment to the plaintiffs back was the opinion of Krompinger, assessing an 8 percent permanent partial disability. In the absence of competent medical evidence attributing the plaintiffs back injury to his abdominal wall injury, we cannot conclude that the commissioner’s decision was unreasonable, arbitrary, illegal or constituted an abuse of discretion. Accordingly, the board properly affirmed the commissioner’s decision dismissing the plaintiffs claim for permanent partial disability benefits for 50 percent of the lumbar spine based on the impairment to his abdominal wall.

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

In this opinion the other judges concurred.

       Gallagher Bassett Services, the insurer for C & S Wholesale Grocers, Inc., also was named as a defendant.

       General Statutes § 31-308 (b) provides in relevant part: “With respect to the following injuries, the compensation, in addition to the usual compensation for total incapacity but in lieu of all other payments for compensation, shall be seventy-five per cent of the average weekly earnings of the injured employee .... All of the following injuries include the loss of the member or organ and the complete and permanent loss of use of the member or organ referred to . ...” In chart form, § 31-308 (b) lists the compensable injuries to individual body parts.

       Of particular relevance to this appeal was the plaintiffs claim that the commissioner should have concluded that the permanent partial impairment to his abdominal wall should have been considered as an impairment to his back in accordance with § 31-308 (b).

       Orlando farther acknowledged that the plaintiffs impairment did not pertain to any of his skeletal structures.


author: HARPER, J.

text:
    JOHN CALTABIANO ET AL. v. L AND L REAL ESTATE HOLDINGS II, LLC, ET AL.
    (AC 30929)
    DiPentima, C. J., and Harper and Robinson, Js.
    Submitted on briefs October 15, 2010 —
    officially released April 19, 2011

      Laurence V. Pamoff filed a brief for the appellant (plaintiffs).

      Robert J. Caffrey filed a brief for the appellees (named defendant et al.).

      Bryan R. Weber filed a brief for the appellees (BL Companies, Inc., et al.).
   Opinion

HARPER, J.

The plaintiffs in this action for equitable relief and monetary damages, John Caltabiano and The Dohnna, LLC, appeal from the judgment of the trial court in favor of the defendants L & L Real Estate Holdings II, LLC (L & L); Cumberland Farms, Inc.; Robert Landino and BL Companies, Inc. The plaintiffs claim that the court improperly struck the third and fourth counts of their substitute revised amended complaint and, thereafter, rendered judgment in the defendants’ favor. We affirm the judgment of the trial court.

The record reveals the following relevant procedural history and facts. In January, 2007, the plaintiffs commenced this action. In April, 2007, the plaintiffs filed an amended complaint. In September, 2007, the court granted L & L’s motion to dismiss counts one and two of the amended complaint in their entirety. This court affirmed the judgment in Caltabiano v. L & L Real Estate Holdings II, LLC, 122 Conn. App. 751, 998 A.2d 1256 (2010).

In October, 2007, the defendants filed requests for the plaintiffs to revise the remaining counts of the amended complaint. After the court overruled the plaintiffs’ objections to the requests to revise, the plaintiffs, on November 20, 2007, filed a revised amended complaint. Relevant to the present appeal are the third and fourth counts of the revised amended complaint, applicable to the defendants. The third count alleged that the defendants improperly had failed to disclose certain facts in a timely manner to the zoning commission of the town of Westbrook (commission) and the zoning board of appeals of the town of Westbrook (board). The fourth count alleged that the defendants had violated the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.

On January 4, 2008, L & L filed a motion to strike counts three and four of the revised amended complaint. Cumberland Farms, Inc., joined in this motion. On February 14, 2008, BL Companies, Inc., and Landino also filed a motion to strike counts three and four of the revised amended complaint. Over the plaintiffs’ objection, on August 8, 2008, the court, Radcliffe, J., granted the motions to strike counts three and four.

On August 20, 2008, the plaintiffs filed a substitute revised amended complaint, which, like the revised amended complaint, consisted of four counts with counts three and four setting forth claims against the defendants. On September 19, 2008, L & L and Cumberland Farms, Inc., filed a motion for a judgment of non-suit and/or a motion to strike counts three and four of the plaintiffs’ complaint. Thereafter, on October 7,2008, BL Companies, Inc., and Landino also filed a motion for a judgment of nonsuit and/or a motion to strike counts three and four of the plaintiffs’ complaint. On March 20, 2009, over the plaintiffs’ objection, the court, Arnold, J., issued memoranda of decision granting the defendants’ motions. The court ordered counts three and four stricken and rendered judgment in the defendants’ favor for the plaintiffs’ “failure to file a revised or amended pleading responsive to the previous orders of the court.” This appeal followed.

First, we address the plaintiffs’ claim that the court improperly rendered a judgment of nonsuit, rendering judgment in the defendants’ favor as to counts three and four of the substitute revised amended complaint, due to the plaintiffs’ failure to file a new pleading following the court’s granting of the defendants’ motions to strike on August 8, 2008. We reject the plaintiffs’ claim.

The defendants brought their motions for a judgment ofnonsuit under Practice Book §§ 10-44 and 17-31. Practice Book § 10-44 provides in relevant part: “Within fifteen days after the granting of any motion to strike, the party whose pleading has been stricken may file a new pleading; provided that in those instances where an entire complaint ... or any count in a complaint . . . has been stricken, and the party whose pleading or a count thereof has been so stricken fails to file a new pleading within that fifteen day period, the judicial authority may, upon motion, enter judgment against said party on said stricken complaint ... or count thereof.” Practice Book § 17-31 provides in relevant part: “Where either party is in default by reason of failure to comply with [Practice Book §] 10-8 . . . the adverse party may file a written motion for a nonsuit . . . .” Practice Book § 10-8 provides in relevant part that pleadings “shall first advance within thirty days from the return day, and any subsequent pleadings . . . shall advance at least one step within each successive period of fifteen days from the preceding pleading or the filing of the decision of the judicial authority thereon if one is required . . . .”

In determining whether the court properly rendered judgment in the defendants’ favor, the issue distills to whether the newly filed pleading — the substitute revised amended complaint — was a “new pleading” in that it was materially different than the revised amended complaint, a pleading that the court had determined to be legally insufficient. That is, the issue is whether the court properly determined that the plaintiffs had failed to remedy the pleading deficiencies that gave rise to the granting of the motions to strike or, in the alternative, set forth an entirely new cause of action. It is proper for a court to “dispose of the substance of a complaint merely repetitive of one to which a demurrer had earlier been sustained.” Royce v. Westport, 183 Conn. 177, 181, 439 A.2d 298 (1981).

“Construction of pleadings is a question of law. Our review of a trial court’s inteipretation of the pleadings therefore is plenary.” Kovacs Construction Corp. v. Water Pollution & Control Authority, 120 Conn. App. 646, 659, 992 A.2d 1157, cert. denied, 297 Conn. 912, 995 A.2d 639 (2010). Our careful comparison of the revised amended complaint and the substitute revised amended complaint reveals that the two complaints are materially identical and that, in filing the substitute revised amended complaint, the plaintiffs did not remedy the pleading defects identified by the court in striking counts three and four of the revised amended complaint. The substitute revised amended complaint cannot be said to have advanced the pleadings. Accordingly, we conclude that the court correctly rendered judgment in the defendants’ favor on the entire substitute revised amended complaint because the plaintiffs had failed to file a “new pleading” in response to the court’s ruling granting the defendants’ motions to strike their revised amended complaint.

Second, we address the plaintiffs’ claim that the court improperly concluded that they had failed to plead cognizable causes of action in their substitute revised amended complaint of August 20, 2008. We conclude that the plaintiffs have waived their right to claim that the court’s ruling in this regard was in error.

The plaintiffs’ filing of the substitute revised amended complaint acted as a waiver of any claim that the court improperly had stricken counts three and four of the revised amended complaint. “After a court has granted a motion to strike, the plaintiff may either amend his pleading or, on the rendering of judgment, file an appeal. . . . The choices are mutually exclusive [as] [t]he filing of an amended pleading operates as a waiver of the right to claim that there was error in the sustaining of the [motion to strike] the original pleading.” (Citation omitted; internal quotation marks omitted.) St. Denis v. de Toledo, 90 Conn. App. 690, 693-94, 879 A.2d 503, cert. denied, 276 Conn. 907, 884 A.2d 1028 (2005); see also Practice Book § 10-44. Furthermore, if the allegations in a complaint filed subsequent to one that has been stricken are not materially different than those in the earlier, stricken complaint, the party bringing the subsequent complaint cannot be heard to appeal from the action of the trial court striking the subsequent complaint. See Parsons v. United Technologies Corp., 243 Conn. 66, 74, 700 A.2d 655 (1997).

In light of our conclusion with regard to the first claim, that the substitute revised amended complaint consisted of allegations that were not materially different than those of the revised amended complaint, we conclude that the plaintiffs abandoned their right to claim on appeal that the specific allegations in the substitute revised amended complaint were legally sufficient. Stated otherwise, the substitute revised amended complaint did not afford the plaintiffs an opportunity, procedurally or otherwise, to relitigate the adequacy of the counts stricken in the revised amended complaint.

The judgment is affirmed.

In this opinion the other judges concurred.

       After the filing of this appeal, this court granted the motion of Donna C. Vogel, executrix of the estate of John Caltabiano, to be substituted for the plaintiff John Caltabiano.

       In addition to those four defendants, the plaintiffs also brought this action against Westport first selectman John Raffa, Westbrook building official Roger Zito, Westbrook zoning enforcement officer Anthony Beccia, the zoning commission of the town of Westbrook and the zoning board of appeals of the town of Westbrook. These additional defendants are not parties to this appeal. We therefore refer in this opinion to L & L; Cumberland Farms, Inc.; Landino; and BL Companies, Inc., collectively as the defendants and individually by name when appropriate.

       The first and second counts of the complaint consisted of the following notation: “Dismissed by court, appeal pending.”

       We agree with the court’s characterization of the substitute revised amended complaint: “[It] contains no additional facts to render the allegations sufficiently different from those in the plaintiffs’ revised amended complaint. Although the plaintiffs’ substitute revised amended complaint . . . was worded in a manner slightly different from the revised amended complaint, it contained no new facts or allegations. The plaintiffs have basically restated the prior allegations.”

       The plaintiffs have set forth two separately numbered issues in their main brief. Neither issue clearly identifies a specific ruling at issue. The first issue states: “The plaintiffs have stated additional facts in their substitute revised amended complaint, dated August 20,2008, in accordance with, and satisfying, the decision of the court, Radcliffe, J.” The second issue states: “The plaintiffs have stated cognizable causes of action in the third and fourth counts of their amended complaint.” In contravention of the rules of appellate procedure, the plaintiffs did not specify the page or pages in their brief where each issue is analyzed. See Practice Book § 67-4 (a). In the body of the brief, the plaintiffs have not separately analyzed each issue listed but have come close to abandoning their claims by providing this court with an analysis of the claims that is conclusory in nature and nearly bereft of a reasoned analysis. See, e.g., LaBow v. LaBow, 85 Conn. App. 746, 751-52, 858 A.2d 882 (2004) (“[a]s we have stated on occasions too numerous to recite, mere abstract assertions, unaccompanied by reasoned analysis, will not suffice to apprise a court adequately of the precise nature of a claim”), cert. denied, 273 Conn. 906, 868 A.2d 747 (2005). Furthermore, the plaintiffs have not provided this court with separate standards of review for each of these claims. See Practice Book § 67-4 (d). We reiterate that the rules of practice concerning the content and organization of appellate briefs are not mere technicalities or formalities, but are designed to achieve a uniform and fair process of appellate review. Despite the briefing deficiencies, we are able to discern from the plaintiffs’ brief the gist of their challenge to the court’s rulings on the defendants’ motions to strike and for a judgment of nonsuit and will address those legal contentions in this opinion.


author: LAVERY, J.

text:
    MARK HORENIAN v. MARCEL D. WASHINGTON ET AL.

    (AC 32281)
    Bishop, Bear and Lavery, Js.

      Argued January 10 —
    officially released April 19, 2011

      Mark Horenian, pro se, the appellant (plaintiff).

      Catharine H. Freeman, assistant corporation counsel, for the appellees (defendants).

       The caption of this opinion has been changed to reflect the proper name of the defendant. The plaintiffs initial complaint incorrectly referred to the named defendant as Maurice Washington. The plaintiffs revised complaint correctly identifies the named defendant as Marcel D. Washington and any reference in this opinion to Washington is to Marcel D. Washington.

   Opinion

LAVERY, J.

The plaintiff, Mark Horenian, appeals from the summary judgment rendered by the trial court in favor of the defendants, Marcel D. Washington and the city of Hartford (city), on all six counts of his revised complaint. On appeal, the plaintiff claims that several genuine issues of material fact exist and, therefore, that the court improperly granted the defendants’ motion for summary judgment. We dismiss the appeal in part and affirm the judgment of the trial court in part.

The following facts and procedural history, as alleged by the plaintiff and reasonably garnered from the record, are relevant to our resolution of this appeal. The plaintiff commenced this action on January 9,2008, against Washington, a patrolman with the Hartford police department (department), and the city, Washington’s employer. By way of a six count revised complaint filed on October 17, 2008, the plaintiff alleged several causes of action against both defendants. Against Washington, the plaintiff alleged: intentional infliction of emotional distress in the first count; negligent infliction of emotional distress in the second count; and abuse of process in the third count. Against the city, the plaintiff alleged: intentional infliction of emotional distress in the fourth count; negligent infliction of emotional distress in the fifth count; and intentional infliction of emotional distress in the sixth count.

The revised complaint sets forth the following allegations which form the basis of the plaintiffs claims on appeal. Shortly before midnight on November 26, 2005, the plaintiff was involved in a two vehicle collision near the intersection of Hudson Street and Park Street in Hartford. The plaintiff sustained several injuries as a result of the collision and was taken by ambulance to Hartford Hospital (hospital) for treatment.

The department dispatched Washington to the scene of the collision shortly after the collision occurred. Upon arriving at the scene, Washington immediately launched an investigation. After he had interviewed several witnesses and completed his initial examination of the scene, Washington proceeded to the hospital for the purpose of interviewing the plaintiff.

Upon arriving at the hospital, Washington interviewed the plaintiff as he was lying in bed. Once Washington had completed the interview, he informed the plaintiff that he had determined that the plaintiff had made an improper U-tum immediately before the collision occurred and that the plaintiff was therefore at fault for the collision. The plaintiff protested and told Washington that certain tire marks existed at the scene of the collision that would demonstrate that Washington’s conclusion was incorrect. Washington then left the plaintiffs bedside to investigate further.

Washington returned to the hospital a short time later. Upon entering the plaintiffs room, Washington, “[i]n a great rage and anger,” threw a traffic citation onto the plaintiffs chest, told the plaintiff that he should arrest him for lying about the tire marks and departed. The plaintiff was discharged from the hospital several hours later and immediately returned to the scene of the collision.

Upon his return, the plaintiff located the tire marks that he had described to Washington and contacted the department. The plaintiff requested that Washington and a supervising officer return to the scene of the collision so that he could show them the tire marks and prove that his earlier statement to Washington was true. Washington returned to the scene in the company of Sergeant Fernando Rodriguez, Jr., his superior officer. The plaintiff showed Washington and Rodriguez the tire marks and again insisted that Washington’s conclusion was incorrect. Thereafter, Rodriguez requested that the plaintiff provide him with his copy of the citation and destroyed it in Washington’s presence. Washington, nevertheless, submitted a separate copy of the citation to the department’s traffic division for processing.

The plaintiff subsequently was summoned to appear before the trial court in order to answer for the charge of making an improper U-tum in violation of General Statutes § 14-242 — the infraction listed on the traffic citation. Thereafter, the plaintiff contacted the department and requested a copy of the police accident report. After his initial attempts to obtain a copy of the report were unsuccessful, the plaintiff contacted the department’s internal affairs division for assistance. The internal affairs division, in turn, contacted Washington, who agreed to place a copy of the report in the plaintiffs mailbox on the morning of December 16, 2005.

At 5:30 a.m. on December 16, 2005, the plaintiff was awakened by the sound of knocking on the front door of his residence. When the plaintiff opened the front door, he saw Washington standing outside. Washington then requested that the plaintiff provide him with certain insurance information and informed the plaintiff that a copy of the accident report was available at the department for his review. When the plaintiff went to the department later that day, however, he was informed that the accident report was unavailable as Washington had not yet submitted it to the department. The state subsequently entered a nolle prosequi as to the charge of making an improper U-turn in violation of § 14-242.

On January 26, 2009, the defendants filed an answer to the plaintiffs revised complaint that effectively denied the material allegations of the complaint, leaving the plaintiff to his proof. The defendants also raised several special defenses, including: failure to state a claim as to counts one, three, four, five and six; qualified immunity pursuant to General Statutes § 52-557n 3 as to counts two and three; and governmental immunity pursuant to § 52-557n as to counts four, five and six.

On January 19, 2010, the defendants filed a motion for summary judgment in which they claimed that there was no genuine issue of material fact and that they therefore were entitled to judgment as a matter of law. The plaintiff filed an objection to the defendants’ summary judgment motion on February 16, 2010. On May 5, 2010, the court granted the defendants’ motion in a memorandum of decision and rendered judgment in favor of the defendants on all six counts of the revised complaint. This appeal followed.

As an initial matter, we identify the appropriate standard of review. “Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law. . . . Our review of the trial court’s decision to grant [the defendants’] motion for summary judgment is plenary.” (Internal quotation marks omitted.) Plato Associates, LLC v. Environmental Compliance Services, Inc., 298 Conn. 852, 862, 9 A.3d 698 (2010).

I

As a threshold matter, we note, sua sponte, that we lack jurisdiction to review the plaintiffs claims in counts two through six of the revised complaint. The trial court determined that common law and statutory qualified and governmental immunity under § 52-557n shielded the defendants from liability with respect to those claims. Because this determination provides an independent basis for upholding the court’s decision granting summary judgment, and the plaintiff does not challenge this determination on appeal, we conclude that the plaintiffs claims as they relate to counts two through six of the revised complaint are moot.

“Mootness raises the issue of a court’s subject matter jurisdiction and is therefore appropriately considered even when not raised by one of the parties. . . . Mootness is a question of justiciability that must be determined as a threshold matter because it implicates [a] court’s subject matter jurisdiction .... We begin with the four part test for justiciability established in State v. Nardini, 187 Conn. 109, 445 A.2d 304 (1982). . . . Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires (1) that there be an actual controversy between or among the parties to the dispute . . . (2) that the interests of the parties be adverse . . . (3) that the matter in controversy be capable of being adjudicated by judicial power . . . and (4) that the determination of the controversy will result inpractical relief to the complainant. . . . [I\t is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow. ... In determining mootness, the dispositive question is whether a successful appeal would benefit the plaintiff or defendant in any way.” (Citations omitted; emphasis in original; internal quotation marks omitted.) In re Jorden R., 293 Conn. 539, 555-56, 979 A.2d 469 (2009).

In the present case, the defendants filed an answer in which they denied the material allegations of the plaintiff’s revised complaint and asserted six special defenses, two of which are relevant here. First, the defendants alleged that common law and statutory qualified immunity under § 52-557n barred the plaintiffs claims in counts two and three of the revised complaint, which alleged negligent infliction of emotional distress and abuse of process against Washington, respectively. Second, the defendants alleged that common law and statutory governmental immunity under § 52-557n barred the plaintiffs claims in counts four through six of the revised complaint, which alleged intentional, negligent and intentional infliction of emotional distress against the city, respectively.

Our review of the record reveals that the court granted the defendants’ motion for summary judgment with respect to the plaintiffs claims in counts two through six of the revised complaint on two independent grounds. First, the court determined that no genuine issue of material fact existed. Second, the court determined that the aforementioned special defenses were applicable and shielded the defendants from liability. The plaintiff does not challenge the court’s determination that the defendants were entitled to immunity, only its determination that no genuine issue of material fact existed. “[Wjhere alternative grounds found by the reviewing court and unchallenged on appeal would support the trial court’s judgment, independent of some challenged ground, the challenged ground that forms the basis of the appeal is moot because the court on appeal could grant no practical relief to the complainant.” Green v. Yankee Gas Corp., 120 Conn. App. 804, 805, 993 A.2d 982 (2010). Accordingly, because we cannot grant the plaintiff any practical relief with respect to his claims as they relate to counts two through six of the revised complaint, we dismiss that portion of the appeal as moot.

II

Although we conclude that this appeal is moot insofar as it concerns counts two through six of the revised complaint, our inquiry is not at an end. Our review of the record reveals that the trial court granted summary judgment on count one of the revised complaint, which alleged intentional infliction of emotional distress against Washington, solely on the basis of its determination that no genuine issue of material fact existed as to whether Washington’s conduct was extreme and outrageous and that the defendants therefore were entitled to judgment as a matter of law. Accordingly, the sole remaining issue on appeal is whether the court properly granted the defendants’ motion for summary judgment as to count one of the revised complaint. We conclude that the court properly rendered summary judgment on that count.

“In order to prevail on a claim of intentional infliction of emotional distress, the plaintiff must prove: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiffs distress; and (4) that the emotional distress sustained by the plaintiff was severe. . . . Liability for intentional infliction of emotional distress requires conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. . . . [I]n assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint ... set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. . . .

“Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.” (Citations omitted; emphasis added; internal quotation marks omitted.) Stancuna v. Schaffer, 122 Conn. App. 484, 491-93, 998 A.2d 1221 (2010).

Viewing the evidence in the light most favorable to the plaintiff, we conclude, as a matter of law, that Washington’s conduct was not extreme and outrageous and thus did not support a cause of action for intentional infliction of emotional distress. As this court recently noted, “[c]onduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress.” (Internal quotation marks omitted.) Id., 493. Accordingly, we conclude that the court did not improperly grant the defendants’ motion for summary judgment as to count one of the revised complaint.

The judgment is affirmed as to the granting of the defendants’ motion for summary judgment on the first count of the revised complaint. In all other respects, the appeal is dismissed as moot.

In this opinion the other judges concurred.

       We note at the outset that the plaintiffs brief fails to comply with the requirements of Practice Book § 67-4. “[W]e will nonetheless review all claims which are fairly presented, or at least, reasonably discernible, upon the record before us.” (Internal quotation marks omitted.) McCook v. Whitebirch Construction, LLC, 117 Conn. App. 320, 322 n.3, 978 A.2d 1150 (2009), cert. denied, 294 Conn. 932, 987 A.2d 1029 (2010).

       General Statutes § 14-242 provides in relevant part: “(a) No person shall turn a vehicle at an intersection unless the vehicle is in a proper position on the highway as required by section 14-241 ... or otherwise turn a vehicle from a direct course or move right or left upon a highway unless such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate signal in the manner provided in section 14-244.
      “(b) A signal of Intention to turn right or left shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning. . . .
      “(g) Violation of any of the provisions of this section shall bean infraction. ”

       General Statutes § 52-557n provides in relevant part: “(a) (1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties .... (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.
      “(b) Notwithstanding the provisions of subsection (a) of this section, a political subdivision of the state or any employee, officer or agent acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from ... (5) the initiation of a judicial or administrative proceeding, provided that such action is not determined to have been commenced or prosecuted without probable cause or with a malicious intent to vex or trouble, as provided in section 52-568 .. . .”