author: Foti, J.

text:
    Joseph Caron v. Frederick G. Adams, Commissioner of Health Services, et al.
    (11664)
    Dupont, C. J., Foti and Heiman, Js.

      Argued October 5, 1993
    decision released March 8, 1994

      George E. Mendillo, for the appellant (plaintiff).

      Robert E. Kiley, with whom was Lois B. Tanzer, for the appellee (defendant Newington Children’s Hospital).

      Elizabeth A. O’Dea, assistant attorney general, with whom were Thomas J. Ring, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellee (defendant commissioner of health services).
   Foti, J.

The plaintiff appeals from the judgment rendered for the defendants, following the granting of a motion for judgment notwithstanding the verdict filed by the defendant Newington Children’s Hospital (hospital), and the granting of a motion to dismiss filed by the defendant Frederick G. Adams, commissioner of health services (health services). The plaintiff initially brought this action against the named defendant, the defendant hospital and the department of children and youth services (DCYS) (now the department of children and families). The plaintiff alleged, inter alia, that the hospital failed to obtain consent, informed or otherwise, from his legal guardian, the commissioner of DCYS. The plaintiff alleged that health services breached its statutory duties to provide services to crippled children. The claims against the hospital were tried to a jury and the claims against health services were tried to the court.

During the trial, the defendant hospital orally moved for a directed verdict claiming that the action was barred by the statute of limitations. The court reserved decision. The jury rendered a verdict for the plaintiff in the amount of $500,000. The court granted the hospital’s motion for judgment notwithstanding the verdict on the ground that the two year statute of limitations barred the plaintiff’s action as a matter of law. The trial court filed a memorandum of decision on June 26,1992, finding that the plaintiff and DCYS had to have discovered any harm by January, 1985, but did not commence the action until June 1, 1987. Thereafter, the trial court issued a separate memorandum of decision dated June 26,1992, ordering the dismissal of the case against health services for failure to make out a prima facie case and because the case was barred by the statute of limitations.

The plaintiff appeals claiming that the trial court improperly (1) held that the plaintiff’s cause of action was barred by the statute of limitations, (2) precluded the plaintiff from calling expert witnesses at trial, (3) dismissed the claim against health services without reaching the issue of whether health services may be held liable for the acts or omissions of the hospital, and (4) denied the plaintiff’s application for relief from payment of fees, costs and expenses pursuant to Practice Book § 4017. We reverse in part and affirm in part.

The following facts are relevant to this appeal. The plaintiff, Joseph Andrew Caron, was born Maurice Joseph Tancreto on November 3,1967. On January 16, 1968, he was adjudicated a neglected child and was committed to the custody of the commissioner of DCYS. He was placed in the foster care of Joseph and Johanna Caron, where he remained throughout his minority.

The plaintiff was diagnosed with scoliosis at age four and became a patient of the hospital. During the years that he was a patient, he was examined periodically by John Banta, a staff orthopedic surgeon at the hospital, in addition to other members of the hospital staff including psychologists. The plaintiffs curvature of the spine was treated with various brace treatments until he was twelve years old. The scoliosis was found to be responding well and brace treatment was discontinued in October, 1980. Thereafter, further examinations conducted by the hospital revealed a progression of the curvature of the spine. By August, 1983, the curvature had worsened to the point that surgery was deemed advisable.

From September, 1981, to February, 1984, Salvatore Luciano was the plaintiffs caseworker from DCYS. On October 26, 1983, a meeting was held with officials from DCYS, including Luciano, the hospital, the plaintiff, and Johanna Caron to discuss corrective surgery. Banta recommended surgical fusion of the spine which intended to correct the curvature by 50 percent and to prevent further progression. No decision as to a course of treatment was reached at the meeting. The plaintiff and his foster mother were to take the matter under advisement. Luciano testified that Banta had said at the meeting that surgery could not be attempted until the plaintiff achieved skeletal maturity. Banta denied having made such a statement.

In February, 1984, Paul Kukish, another DCYS caseworker, was appointed to the case. Kukish did not become aware that surgery had been proposed until September, 1984. On September 10,1984, the plaintiff was admitted to the hospital for diagnostic evaluation. It was determined that the scoliosis had progressed to a critical point and surgery was again recommended. The plaintiff refused to submit to surgery because of the risks that he thought were involved. He checked out of the hospital against medical advice on September 14,1984. The plaintiff did not return to the hospital as a patient.

In October, 1984, a staff member of the hospital’s child protection unit wrote to the clerk of the Superior Court requesting that a judge review the plaintiff’s case. On October 24, 1984, and June 26, 1985, hearings were held in the Superior Court for Juvenile Matters. All pertinent parties were present including the plaintiff who was represented by an attorney in opposing the surgery. After the first hearing, the plaintiff was ordered to visit Boston Children’s Hospital for a second opinion. The diagnosis and recommendations of Boston Children’s Hospital were substantially the same as those of the Newington hospital. Ultimately, the trial court refused to compel the plaintiff, then seventeen, to undergo surgery against his will.

The plaintiff contended at the trial against the hospital that the hospital and health services were negligent in not ensuring the early treatment and correction of his scoliosis. In failing to do so, he claims that they allowed the curvature of his spine to progress to the point where it could not be fully corrected and partial correction could be accomplished only by surgery and at great risk to the plaintiff.

I

We deal first with the issue of the statute of limitations, which involves both defendants, and then take in turn the issues applicable to each defendant. The plaintiff first contends that the trial court improperly determined that his claims were barred by the statute of limitations pursuant to General Statutes § 52-584. It is undisputed that § 52-584 applies to this case. “In Connecticut, a cause of action accrues when a plaintiff suffers actionable harm. Catz v. Rubenstein, 201 Conn. 39, 43, 513 A.2d 98 (1986). Actionable harm occurs when the plaintiff discovers or should discover, through the exercise of reasonable care, that he or she has been injured and that the defendant’s conduct caused such injury. Id.; see Lambert v. Stovell, 205 Conn. 1, 6, 529 A.2d 710 (1987).” Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 521, 562 A.2d 1100 (1989). The trial court in this case found that the injury to the plaintiff should reasonably have been discovered by, at the latest, January, 1985. Because the plaintiff initiated suit on June 1,1987, the trial court concluded that the suit was barred by the two year statute of limitations.

It is well settled in Connecticut that the statute of limitations applies with full force against infants. Lametta v. Connecticut Light & Power Co., 139 Conn. 218, 223, 92 A.2d 731 (1952); Lopez v. United Nurseries, Inc., 3 Conn. App. 602, 605, 490 A.2d 1027 (1985). It has long been the established practice that a minor may bring a civil action only through a guardian or next friend. Collins v. York, 159 Conn. 150, 153, 267 A.2d 668 (1970); Lametta v. Connecticut Light & Power Co., supra, 220. In addition, “[a]n infant . . . cannot be presumed to know that legal redress is available for an injury caused by the negligence of another. Thus . . . the knowledge of a parent or guardian that his or her child has suffered an actionable injury must be imputed to that child.” Burns v. Hartford Hospital, 192 Conn. 451, 458 n.4, 472 A.2d 1257 (1984).

The plaintiff in this case had been committed to the guardianship of the commissioner of DCYS pursuant to General Statutes § 17a-92. Therefore, for statute of limitations purposes, the defendants argue that the knowledge of the plaintiffs guardian, DCYS, would generally be imputed to the plaintiff. However, “the purpose of providing representation is to ensure that the legal disability imposed will not undermine adequate protection of a ward’s interest.” Cottrell v. Connecticut Bank & Trust Co., 175 Conn. 257, 264, 398 A.2d 834 (1978). “The law does not deprive a person adjudicated incompetent of access to the courts in order to seek redress; rather, provision is made to ensure that such interests are well represented. Kirwan v. State, 168 Conn. 498, 502, 363 A.2d 56 [1975].” Cottrell v. Connecticut Bank & Trust Co., supra, 261-62.

The DCYS guardianship is a guardianship of the person. The plaintiff argues that personal injury damages are a property right, and, therefore, DCYS, as guardian of the person and not of the estate, would not be able to bring a suit on behalf of the plaintiff. We need not decide this issue because, in this case, the interests of DCYS may have been adverse to those of the plaintiff. The plaintiff, in fact, sought redress for injury arising out of the actions and inactions of DCYS and its agents. In addition, the hearings held in the Superior Court for Juvenile Matters in October, 1984, and June, 1985, regarding the advisability of corrective surgery and in which the plaintiff opposed the surgery, suggest that some conflict between the minor plaintiff and guardian may have arisen.

It is a general rule that an action at common law cannot be maintained between a guardian and a ward while that relationship exists. 39 Am. Jur. 2d, Guardian and Ward § 160 (1968). If a representative of the child’s interests does not properly discharge his or her duties, the court may remove him or her and appoint another. Orsi v. Senatore, 31 Conn. App. 400, 416, 626 A.2d 750, cert. granted, 228 Conn. 908, 635 A.2d 1228 (1993). The only real test for determining whether a person is a proper person to act as guardian or next friend is whether that person’s interests are adverse to those of the child. Id.

When a guardian ad litem has been appointed, he or she is usually the proper person to represent a minor plaintiff. There are situations, however, where a minor may sue by next friend notwithstanding the existence of a guardian representing the minor’s interests, such as when the guardian declines to take action or is unable to do so. Williams v. Cleaveland, 76 Conn. 426, 432, 56 A. 850 (1904). Such suits may be filed by a next friend in order to challenge the continued appointment of a conservator; see, e.g., Cleveland’s Appeal, 72 Conn. 340, 44 A. 476 (1899); to seek an appeal of a probate order when her guardian ad litem refused to do so; Cottrell v. Connecticut Bank & Trust, Co., supra; and to bring a petition challenging the sentencing authority of a court on behalf of an incarcerated defendant whose parents were opposed to the proceeding and would not act as guardians and next friends. Collins v. York, supra, 153-54.

Here, the defendants argue that since the plaintiff’s cause of action could have been timely brought by a next friend, it should be barred by the statute of limitations. While a suit by a next friend may be allowed even where a guardian has been appointed, this situation is not the norm; in fact, our Supreme Court has referred to such a situation as “exceptional.” Cottrell v. Connecticut Bank & Trust, Co., supra, 263. The court in Cottrell also noted that, “[although in the present case the interests of the plaintiff and those of the appointed guardian ad litem are not clearly antagonistic . . . a procedure initiated to protect [the child’s] interests should not be utilized to hinder [him] in obtaining a review of any action involving [his] rights.” Id., 264-65. In this case, the interests of the guardian and ward appear to have been adverse. We decline to establish a blanket holding that a child has no recourse where no next friend has stepped forward in a timely fashion to protect the child’s interests.

Considering the particular facts presented here where a child is a ward of the state without a next friend or guardian of his estate, and has a guardian of his person with interests possibly adverse to his own, we conclude that the statute of limitations is tolled. Under the unique circumstances of this case, the limitations tolled as to both defendants until a court-appointed guardian of the estate was established or until the minor reached the age of majority and was able to act on his own behalf. In this case, no guardian of the estate was ever appointed by the court, but the minor reached majority on November 3, 1985. This action was initiated June 1, 1987, within the two year period and, therefore, was not barred by the statute of limitations. The judgment notwithstanding the verdict rendered for the hospital must be set aside.

II

The defendant hospital argues that, in the event that this court reverses the trial court, the proper order on remand should be for a new trial. The defendant argues in support of the granting of a new trial that the trial court improperly instructed the jury regarding (1) the statute of limitations, (2) the applicable standard of care, and (3) the doctrine of informed consent, and that it improperly refused to charge on the necessity of expert testimony.

When we evaluate the correctness of jury instructions, “ ‘[t]he ultimate test of a court’s instructions is whether, taken as a whole, they fairly and adequately present the case to the jury in such a way that injustice is not done to either party under the established rules of law.’ . . . Ellice v. INA Ins. Co. of New York, 208 Conn. 218, 226, 544 A.2d 623 (1988) . . . .” Gemme v. Goldberg, 31 Conn. App. 527, 547, 626 A.2d 318 (1993). We keep this standard in mind when evaluating the defendant’s claims.

A

The defendant hospital first argues that a new trial should be granted since the jury was improperly charged as to the statute of limitations. The trial court, in its memorandum of decision, concedes that the jury was improperly charged as to the appropriate statute of limitations, and that the applicable period of limitations was two years, not three years. According to the trial court, the plaintiff’s suit would nevertheless be barred. We find, however, that the error was harmless.

As a matter of law, the court’s instructions were incorrect. Under the particular circumstances herein, whether the jury was misled into believing that the plaintiff had three years from the discovery of the injury to file suit, instead of only two years, is immaterial. Because of our conclusion that the limitations period was tolled and that the plaintiff commenced suit within two years of reaching majority, the plaintiffs suit was timely filed.

A jury’s verdict should be set aside only “ ‘where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles . . . .’ ” Caciopoli v. Acampora, 30 Conn. App. 327, 331, 620 A.2d 191 (1993). A verdict should not be set aside where the jury reasonably could have based its verdict on the evidence. American National Fire Ins. Co. v. Schuss, 221 Conn. 768, 774, 607 A.2d 418 (1992). Here, although the jury was improperly instructed and may have applied the three year statute of limitations, the verdict was not improper, since the action was not barred by even the two year statute of limitations.

B

The hospital’s remaining claims depend on how the allegations of the plaintiff’s suit are properly characterized. Some additional facts are necessary to the resolution of these claims.

The pleadings were closed as to the defendants by August 23,1988. On August 29,1988, the court granted the plaintiff’s motion for extension of time to disclose experts for a period of sixty days beyond the close of pleadings. On October 19, 1988, the plaintiff filed a second motion for extension of time to disclose expert witnesses. That motion was not acted on until January 9, 1989. The court then ordered the plaintiff, through counsel, to file a written report on or before February 6, 1989, or all further medical testimony would be precluded. On February 3, 1989, the plaintiff filed a disclosure response identifying approximately seventy expert witnesses. On February 6,1989, the court conducted a hearing at which the plaintiffs counsel admitted that he had obtained these physicians’ names from the hospital’s general directory. The court ruled this to be an improper disclosure and precluded the plaintiff from presenting expert witnesses at trial. On April 27, 1990, the plaintiff moved for relief from that order. Thereafter, the trial court, finding that the plaintiff had demonstrated no good cause for vacating the prior order, denied the plaintiff’s request for relief.

A determination of the defendant hospital’s claims requires us first to resolve the plaintiff’s claim that the trial court improperly precluded him from presenting expert testimony. As we have recently stated, “Practice Book § 220 (A) provides in pertinent part that ‘[a] party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial . . . .’The trial court has discretion to impose sanctions on parties who fail to answer interrogatories requesting disclosure of any expert witness the parties intend to call. Practice Book § 231. The sanctions imposed may include the exclusion of any expert testimony at trial. Practice Book § 231 (d); Separack v. Solaz, 17 Conn. App. 684, 693, 556 A.2d 175, cert. denied, 211 Conn. 804, 559 A.2d 1138 (1989); Perez v. Mount Sinai Hospital, 7 Conn. App. 514, 518, 509 A.2d 552 (1986).” Gemme v. Goldberg, supra, 534-35. This exclusion of any and all experts also precludes the plaintiff from using testimony introduced by the defendant as expert testimony. Id., 536. We find no reason to conclude that the court abused its discretion in excluding expert testimony.

Having determined that the trial court did not improperly exclude expert testimony by the plaintiff, we now address the issue of whether expert testimony was necessary for the plaintiff to prove his allegations. The trial court instructed the jury as to two specific claims of negligence: (1) the hospital failed to establish or enforce a routine policy or practice for obtaining informed consent for the medical or surgical care of disabled children committed to DCYS; and (2) the hospital failed to advise and inform DCYS of the treatment required by the plaintiff. The defendant hospital requested an instruction on the necessity of expert testimony. The court refused that request.

The claims in this case are not easily characterized. Typically, the basis for claiming a lack of informed consent is a failure to make a sufficient disclosure of the risks of or alternatives to a certain medical procedure or treatment. Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 706 n.4, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991). “In order to establish the existence of a duty to inform, the plaintiff must show through expert testimony that ‘the customary standard of care of physicians in the same practice as that of the defendant doctor was to obtain the patient’s consent prior to performing any operation.’ Shenefield v. Greenwich Hospital Assn., [10 Conn. App. 239, 248-49, 522 A.2d 829 (1987)].” Mason v. Walsh, 26 Conn. App. 225, 230, 600 A.2d 326 (1991), cert. denied, 221 Conn. 909, 602 A.2d 9 (1992).

This case is not properly characterized as concerning a lack of informed consent because the plaintiff makes no allegation that the disclosure was insufficient, but rather that disclosure was not made to the appropriate person. Our law makes a distinction between lack of informed consent and failure to obtain any consent. Shenefield v. Greenwich Hospital Assn., supra, 248. For example, battery is a basis for recovery against a physician under circumstances where the physician fails to obtain consent to the particular treatment or performs a procedure different from the one for which consent has been given, or where he realizes that the patient does not understand what the operation entails. Lambert v. Stovell, 205 Conn. 1, 4, 529 A.2d 710 (1987). Situations where battery may be proved may also be appropriate for allegations of negligence. See, e.g., Shenefield v. Greenwich Hospital Assn., supra. Battery is not an appropriate theory for this case, however, because surgery was never performed.

After the jury charge was delivered, the parties had an extensive colloquy about the correctness of the instructions in light of the plaintiff’s claims. As to the plaintiff’s first allegation, that the hospital failed to adopt a procedure for obtaining informed consent from DCYS, the court noted the following: “That is not an allegation that [Banta] fell below the standard of care of a doctor. That’s an allegation of general negligence. That’s an allegation that he didn’t do something; that’s why the court originally gave the reasonable man standard because that’s what [plaintiff’s counsel] kept telling me or trying to tell me all during the course of the trial; that that’s where he was going. That’s why the court permitted him to go and say an expert isn’t required.”

With regard to the second claim, failure by the hospital to advise and inform the plaintiff’s guardian of necessary treatment, the court said that “it’s a claim made as to the fact that they didn’t convey that information to the legal guardian. Again, as much as you might not like his allegation, that was the thrust of his claim, and the thrust of his claim is not malpractice in this case. . . . The point is that there is evidence that’s been put in here that there were certain rules and regulations which he claims had to be followed in getting informed consent. He put on evidence to claim that the doctor didn’t follow these procedures. . . . [H]e doesn’t need an expert to have that. It would depend upon what the jury determines was given to the department of children and youth services. . . . The court feels as though a definition of negligence is something for [the jury] to have to determine. [That is] whether or not the doctor was — not negligent in the information he gave, not negligent in whether he sufficiently informed — negligent in whether or not he gave it to the right person so they could make that decision. ” (Emphasis added.)

We agree with the trial court that the plaintiff’s claims sound in general negligence not requiring expert testimony. To prove negligence, it is necessary to prove that a duty existed, that that duty was breached and that the breach of the duty was the proximate cause of the victim’s injury. Hall v. Winfrey, 27 Conn. App. 154, 158, 604 A.2d 1334, cert. denied, 222 Conn. 903, 606 A.2d 1327 (1992); Catz v. Rubenstein, 201 Conn. 39, 44, 513 A.2d 98 (1986).

The existence of the duty is not at issue in this case. Banta testified as to his and the hospital’s general practice and procedures for obtaining consent and establishing appointments. He testified that the consent of the legal guardian would be required for surgery; that he felt that he had satisfied his duty to the plaintiff by meeting with the plaintiff, his family and various DCYS officials in order to apprise everyone of the nature and effects of the medical condition and discuss treatment options. Banta was also questioned as to his familiarity with DCYS’s policy with regard to obtaining the necessary consent to treat a ward of DCYS. Finally, he testified that separate consent would be required at the initiation of an invasive procedure such as surgery, but that it would not necessarily be required to discontinue a treatment such as bracing. The jury reasonably could have believed that this testimony established a duty by Banta and the hospital to obtain consent from the plaintiffs guardian.

The issue of whether that duty was breached was disputed, but we find the resolution of that issue well within the jury’s knowledge. “The true test for the admissibility of expert testimony is whether the witnesses offered as experts have any peculiar knowledge or experience, not common to the world, which renders their opinions founded on such knowledge or experience any aid to the court or the jury in determining the questions at issue.” (Internal quotation marks omitted.) Puro v. Henry, 188 Conn. 301, 309, 449 A.2d 176 (1982). “Even in cases involving claims of medical and legal malpractice, a case-by-case analysis is employed and, although the general rule requires expert testimony where the specific conduct underlying the plaintiff’s claim is such that it amounts to gross negligence, our courts have not required expert testimony. Puro v. Henry, [supra, 305]; Console v. Nickou, 156 Conn. 268, 273-74, 240 A.2d 895 (1968) . . . .” (Citations omitted.) Evans v. Warden, 29 Conn. App. 274, 281, 613 A.2d 327 (1992).

Some aspects of a medical malpractice action are considered to be within the realm of a jury’s knowledge. For example, the scope of disclosure in informed consent must be proved in accordance with a lay standard. The determination of the proper person from whom to obtain consent in this case does not require a medical expert, but rather is based on the practices and procedures of the hospital and DCYS, which is within the realm of the jury’s knowledge.

Accordingly, we find that the trial court did not act improperly in refusing the defendant’s request to charge on the necessity of expert testimony.

C

The hospital also argues that the trial court incorrectly instructed the jury as to the applicable standard o-f care and the doctrine of informed consent. Because we find that this case is properly characterized as one of general negligence, and not informed consent, we conclude that the trial court correctly instructed the jury that the applicable standard of care was the reasonable man standard.

Having found no harmful error in the instructions to the jury, we remand this matter for judgment to be rendered in accordance with the jury’s verdict.

Ill

With regard to defendant health services, the plaintiff also claims that the trial court improperly granted health services’ motion to dismiss for failure to make out a prima facie case. We do not agree.

When reviewing a judgment of dismissal pursuant to Practice Book § 302, the issue to be decided is whether sufficient facts were proved to make a prima facie case. Wordie v. Staggers, 27 Conn. App. 463, 465, 606 A.2d 734 (1992). The evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to the plaintiff. Id.; see also Ivimey v. Watertown, 30 Conn. App. 742, 751, 622 A.2d 603, cert. denied, 226 Conn. 902, 625 A.2d 1375 (1993). Whether the plaintiff has established a prima facie case is a question of law. Wordie v. Staggers, supra.

It is undisputed that, in order to prove a prima facie case of negligence, the plaintiff had to show that health services breached a duty owed to the plaintiff, and that there existed a causal connection between the breach and the plaintiff’s injury. Hearl v. Waterbury YMCA, 187 Conn. 1, 4, 444 A.2d 211 (1982).

The plaintiff claims that General Statutes § 19a-50 established the required duty by placing on health services the “final administrative responsibility” for services provided by the state for crippled children and children with cardiac defects, including the plaintiff. The plaintiff argues that this statute makes health services liable for any injury caused by a dereliction in the performance of those services by all parties including, in this case, the hospital.

The trial court found that, even if such a duty did exist, the plaintiff had failed to prove that health services breached any statutory duty. General Statutes §§ 19a-6 and 19a-50 provide that health services is responsible for planning and administering statewide programs. The plaintiff does not claim that such programs have not been created and maintained, nor does he claim that such programs were not available to him. Such a program was available and utilized by the plaintiff through the hospital. The plaintiff failed to establish that the hospital’s treatment programs were subject to the control of health services. The hospital is a private facility and retains such status even though it receives moneys, not controlled by health services, from the state to defray operating costs.

We find that the trial court properly concluded that the plaintiff had failed to establish a prima facie case of negligence against health services. Accordingly, the motion to dismiss filed by health services was properly granted.

IV

Finally, the plaintiff asserts that the trial court improperly denied his application for payment of fees, costs and expenses for his appeal pursuant to Practice Book § 4017. The trial court must make two determinations: (1) that he is indigent, and that (2) he is entitled to appeal. Factual findings of a trial court will be overturned only if they are clearly erroneous. Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 40, 632 A.2d 1134 (1993). The language of § 4017 is permissive and leaves the waiver of fees within the discretion of the trial court.

Our review of the record discloses that the trial court furnished a full hearing on this matter on July 24,1992. After considering the testimony of the plaintiff and reviewing his financial affidavit, the court found that the plaintiff had failed to meet his burden of proof as to indigency. Noting that the case had been originally handled on a contingency basis and citing Cooper v. Matzkin, 160 Conn. 334, 340, 278 A.2d 811 (1971) (“the state is under no duty to finance unfounded, collateral, civil legal excursions”), the trial court also impliedly concluded that the plaintiff had not sustained his burden of showing that he was entitled to an appeal. The plaintiff has not demonstrated that the trial court abused its discretion in denying his application. The trial court’s decision as to the payment of fees, costs, and expenses is affirmed.

The judgment is reversed as to the defendant Newington Children’s Hospital and the case is remanded with direction to render judgment for the plaintiff in accordance with the jury verdict. The judgment is affirmed as to the defendant commissioner of health services.

In this opinion the other judges concurred.

       The unopposed motion by DCYS to dismiss the complaint was granted by the trial court on August 11, 1987, on the grounds of sovereign immunity and failure to exhaust administrative remedies.

       The elder Joseph Caron died in 1979.

       The risks associated with this surgery included, among others, paralysis and cardiac and pulmonary complications.

       There is no indication in the record that this attorney was officially appointed as guardian ad litem for the plaintiff, but appears to have been appointed by the court for the hearings only.

       The plaintiff reached majority on November 3, 1985.

       General Statutes § 52-584 provides in pertinent part: “No action to recover damages for injury to the person, or to real or personal property, caused by negligence, or by reckless or wanton misconduct, or by malpractice of a physician . . . shall be brought but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of, except that a counterclaim may be interposed in any such action any time before the pleadings in such action are finally closed.”

       General Statutes § 17a-92 provides in pertinent part: “Effective at 12:01 a.m., April 1,1975, the commissioner of children and youth services shall assume, and the commissioner of social services shall cease to have guardianship, as defined in subsection (a) of section 17a-90, over all children who on that date, by virtue of any order of the juvenile court or superior court, are wards of or committed to the state of Connecticut or the commissioner of social services. The commissioner of children and youth services shall thereupon assume all liability and responsibility for such children; and exercise such powers, duties and functions regarding such children, as the commissioner of social services in his capacity as guardian may now or hereafter have . . . .”
      General Statutes § 17a-90 (a) provides: “The commissioner of children and youth services shall have general supervision over the welfare of children who require the care and protection of the state.”

       Although Cottrell v. Connecticut Bank & Trust Co., 175 Conn. 257, 264, 398 A.2d 834 (1978), involved the interests of an incompetent, that case stated that “legal disability of an incompetent is analogous to that of a minor. See Brown v. Eggleston, 53 Conn. 110, 119, 2 A. 321 [1885].”

       General Statutes § 17a-93, “Definitions. As used in sections 17a-90 to 17a-124, inclusive, and 17a-152,” provides: “ ‘Guardianship’ means guardianship, unless otherwise specified, of the person of a minor and refers to the obligation of care and control, the right to custody and the duty and authority to make major decisions affecting such minor’s welfare, including, but not limited to, consent determinations regarding marriage, enlistment in the armed forces and major medical, psychiatric or surgical treatment . . . .” (Emphasis added.)

       Chapter 802h, entitled “Protected Persons and Their Property,” divides the provisions with respect to minors into two sections “Guardians of the Person of a Minor,” General Statutes § 45a-603 et seq., and “Guardians of the Estate of a Minor,” General Statutes § 45a-628 et seq. General Statutes § 45a-629 provides that if a minor does not have a guardian of his estate and is entitled to property, the court may appoint the parents or guardian to be guardian of the estate. If any of these are not proper persons, the court may appoint any proper person chosen by the minor, if the minor is over the age of twelve. If the minor does not or cannot choose, or makes an improper choice, “the court of probate shall appoint some proper person or persons, who, as guardian of the estate of the minor, shall have charge of all the minor’s property, whether acquired before or after the guardian’s appointment, but shall have no control over his person.” General Statutes § 45a-629 (b).

       Certification was granted on the following issues: (1) “Does a foster parent have standing to make the legal claims of a foster child in her care?” and (2) “Does the failure to provide a pre-removal administrative hearing procedure to foster parents in back-to-family placements violate the foster child’s constitutional rights?” Orsi v. Senatore, 228 Conn. 908, 908-909, 635 A.2d 1228 (1993).

       The defendant argued that the plaintiff’s foster mother would have been an appropriate person to bring an action on the plaintiffs behalf. There was evidence that, as of at least 1984, Johanna Caron had severe arthritis and was dependent on the plaintiff for her care and support. At least as of her affidavit of December 10, 1987, she was confined to a wheelchair and required special care. It is perhaps questionable that she was able to act as the plaintiffs next friend. Regardless, Johanna Caron did not so act as next friend for the plaintiff.

       The plaintiff argues that the order of the trial court was improper because Practice Book § 220 (D) provides that plaintiffs must disclose experts within sixty days from the date the case is claimed, to the trial list, and, therefore, the plaintiff should have had until November 4, 1988, to disclose experts. Both parties concede that this matter was claimed to the trial list on September 6,1988. Because the plaintiff was granted an extension for disclosure of experts until February 6,1989, we need not comment on the trial court’s initial order.

       We decline to reconsider our holding in Perez v. Mount Sinai Hospital, 7 Conn. App. 514, 518, 509 A.2d 552 (1986), as the plaintiff requests.

       “Once the existence of a duty to inform has been established, the plaintiff must then prove the extent or degree of disclosure in accordance with the lay standard. Lambert v. Stovell, 205 Conn. 1, 5, 529 A.2d 710 (1987); Logan v. Greenwich Hospital Assn., 191 Conn. 282, 292-93, 465 A.2d 294 (1983); Mason v. Walsh, [26 Conn. App. 225, 229-30, 600 A.2d 326 (1991), cert. denied, 221 Conn. 909, 602 A.2d 299 (1992)]. The physician is thus charged with the duty to disclose to the patient that information that ‘a reasonable patient would have found material for making a decision whether to embark upon a contemplated course of therapy.’ Logan v. Greenwich Hospital Assn., supra.” Gemme v. Goldberg, 31 Conn. App. 527, 626 A.2d 318 (1993).

       General Statutes § 19a-50 provides in pertinent part: “(a) The department of health services is designated as the state agency to administer a program of services for children who are crippled or suffering from conditions which lead to crippling or suffering from cardiac defect or damage and to receive and administer federal funds which may become available for such services; and the commissioner of health services is authorized to extend and improve, as far as practicable, such services for locating such children and for providing medical, surgical, corrective and other services and care, and facilities for diagnosis, clinical services, hospitalization and aftercare for such children. The commissioner of health services shall have final administrative responsibility for all activities on behalf of such children as are provided by this section . . . .”

       General Statutes § 17-308 provides for state payment toward the support of patients at Newington Children’s Hospital.

       Practice Book § 4017 provides in pertinent part: “If a party in any case where fees and costs may lawfully be waived is indigent and desires to appeal, that party may, within the time provided by the rules for taking an appeal, make written application, to the court to which the fees required by statute or rule are to be paid, for relief from payment of fees, costs and expenses. The application must be under oath and recite, or it must be accompanied by an affidavit reciting, the grounds upon which the applicant proposes to appeal and the facts concerning the applicant’s financial status.
      “The judicial authority shall assign the request . . . for a hearing . . . .
      “If the court is satisfied that the applicant is indigent and entitled to an appeal, because of a statutory or constitutional right to court appointed counsel or allowing an indigent party to appeal without payment of fees, costs and expenses, the court may (1) waive payment by the applicant . . . and (2) order that the necessary expenses of prosecuting the appeal be paid by the state. . . .”


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    John Muldoon v. Homestead Insulation Company et al.
    (12112)
    (12113)
    Dupont, C. J., Heiman and Spear, Js.
    Argued January 6
    decision released March 8, 1994

      Karen P. Blado, with whom, on the brief, was Mary J. Ambrogio, for the appellants (defendant Cummings Insulation Company et al.).

      Kevin J. Maher, for the appellants (named defendant et al.).

      Robert F. Carter, for the appellee (plaintiff).
   Heiman, J.

The defendants appeal pursuant to General Statutes § 31-301b from the decision of the compensation review division of the workers’ compensation commission affirming the decision of the workers’ compensation commissioner for the fourth district ordering CNA Insurance Company to pay benefits and all reasonable and necessary medical expenses to the plaintiff John Muldoon pursuant to General Statutes § 31-299b. On appeal, the defendants assert that the review division improperly concluded that the claims for increased and total disability were not barred by a prior stipulation. We reverse the decision of the review division.

The following facts are necessary for a proper resolution of this issue. The plaintiff began working around asbestos in 1947. In 1975, he filed a claim for workers’ compensation benefits for pulmonary asbestosis that caused a 50 percent respiratory disability arising out of asbestos exposure from 1947 to 1974. One of the defendants named in that claim was Cummings Insulation Company. On March 31, 1977, the parties settled the claim and agreed that payments were “in full accord and satisfaction of a disputed claim” and “shall be made and accepted as a full and final settlement for all compensation for said injury and for all results upon the [plaintiff], past, present and future, and for all claims for past, present and future medical, surgical, hospital and incidental expenses and all compensation which may be due to anyone in case of the death of the [plaintiff], to the end that the payment of such sum shall constitute a complete satisfaction of all claims due or to become due at any time in favor of anybody on account of the claimed injury, or on account of any condition in any way resulting out of the said injury, or on account of the death of the [plaintiff] on account of said condition.” The settlement further stated that the plaintiff understood the agreement to be a “full and final settlement and that it is intended to deal with any and all conditions, known or unknown, which exist as of the date thereof, or any changes of conditions which may arise in the future on account of said alleged occupational disease occurring between 1947 and 1974.”

On December 12,1986, the plaintiff filed a claim for workers’ compensation benefits for intestinal cancer arising out of asbestos exposure from 1947 to 1984. On June 23, 1987, the plaintiff filed a second claim for workers’ compensation benefits for increased pulmonary asbestosis that caused a 75 percent respiratory disability arising out of asbestos exposure from 1975 to 1984. On May 24, 1989, the only medical report referring to the plaintiffs post-1984 lung condition was filed with the commissioner. The report stated that the increased pulmonary disability was a “progression” of the same disease. On April 26,1991, the workers’ compensation commissioner for the fourth district found that the plaintiff “developed a substantial increase in his pulmonary disability.” The commissioner further found that the exposure to asbestos from 1975 through 1984 was a “substantial causal factor” in the “substantial increase” of his pulmonary disability. On the basis of this finding, the commissioner ordered the defendants to pay the plaintiff benefits pursuant to § 31-299b.

The defendants appealed the commissioner’s decision to the review division without presenting additional evidence. The review division affirmed the commissioner’s decision and stated, in relevant part, that the stipulation among the parties did not prohibit the claim because the increased pulmonary disability “constituted new evidence of a new injury.” The defendants appealed from this decision.

We must first determine whether the review division properly found that the increased pulmonary disability “constituted new evidence of a new injury” when the commissioner found that the increased pulmonary disability was a “substantial increase” from the old injury. Determining whether an injury was a substantial increase from a preexisting injury or was a new injury is a question of fact for the commissioner. See Crochiere v. Board of Education, 227 Conn. 333, 346, 630 A.2d 1027 (1993); Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988); Mellor v. Pleasure Valley Mobile Homes, 11 Conn. Workers’ Comp. Rev. Op. 270, 271 (1993); Glynn v. Terry Corp., 8 Conn. Workers’ Comp. Rev. Op. 87, 88 (1990). “It is clear that under General Statutes § 31-301 (a) and § 31-301-8 of the Regulations of Connecticut State Agencies the review division’s hearing of an appeal from the commissioner is not a de novo hearing of the facts.” Fair v. People’s Savings Bank, supra, 538. “[I]t is obliged to hear the appeal on the record and not ‘retry the facts.’ . . . [T]he power and duty of determining the facts rests on the commissioner, the trier of facts. . . . [T]he conclusions drawn by him 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. ...” (Citations omitted; internal quotation marks omitted.) Crochiere v. Board of Education, supra, 347. The commissioner’s finding that the disability was a “substantial increase” from the old injury was supported by the facts and the review division should not have substituted its finding that the disability was a “new injury.”

We must next determine whether the review division properly affirmed the commissioner based on the commissioner’s findings that the injury was a substantial increase resulting from the old injury. Our scope of review of the actions of the review division is limited to a determination of whether “[t]he decision of the review division [was] correct in law, and it must not include facts found without evidence or fail to include material facts which are admitted or undisputed.” DeBarros v. Singleton, 21 Conn. App. 107, 110, 572 A.2d 69, cert. denied, 215 Conn. 808, 576 A.2d 538 (1990) ; see Vanzant v. Hall, 219 Conn. 674, 677, 594 A.2d 967 (1991). A settlement agreement is a contract among the parties. Bryan v. Reynolds, 143 Conn. 456, 460, 123 A.2d 192 (1956). “ ‘Normally, a determination of what the parties intended by contractual commitments is “a question of fact, reversible only if the trier of fact could not reasonably have arrived at the conclusion it had reached”; Thompson & Peck, Inc. v. Harbor Marine Contracting Corporation, [203 Conn. 123, 130, 523 A.2d 1266 (1987)]; but “[w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law.” Id., 131. “Terms cannot be added to a contract by interpretation.” Connecticut Union of Telephone Workers v. Southern New England Telephone, 148 Conn. 192, 200, 169 A.2d 646 (1961).’ Gaynor Electric Co. v. Hollander, 29 Conn. App. 865, 872-73, 618 A.2d 532 (1993); Bank of Boston Connecticut v. Schlesinger, 220 Conn. 152, 158, 595 A.2d 872 (1991) .” Rosick v. Equipment Maintenance & Service, Inc., 33 Conn. App. 25, 38, 632 A.2d 1134 (1993). The settlement agreement states that the payments “shall be made and accepted as a full and final settlement for all compensation for said injury and for all results upon the claimant, past, present and future, and for all claims for past, present and future medical, surgical, hospital and incidental expenses . . . to the end that the payment of such sum shall constitute a complete satisfaction of all claims due or to become due at any time in favor of anybody on account of the claimed injury, or on account of any condition in any way resulting out of the said injury . . . .” (Emphasis added.) The settlement further states that the claimant understood the settlement “to deal with any and all conditions, known or unknown, which exist as of the date thereof, or any changes of conditions which may arise in the future on account of said alleged occupational disease . . . .” On the basis of the contract language, the parties intended, as a matter of law, to have the settlement resolve any claim for an increase in disability resulting from asbestosis of the lung. A settlement agreement resolves “the entire case, including claims both known and unknown, and both certain and uncertain. . . . Obviously, if injuries worsen as time passes, damages will increase, and, if injuries mend, damages will decrease. These are the vagaries of . . . settlement.” Lutynski v. B. B. & J. Trucking, Inc., 31 Conn. App. 806, 813, 628 A.2d 1, cert. granted on other grounds, 227 Conn. 914, 632 A.2d 692 (1993). Since the commissioner found that the claimed injury was an increase in the disability and not a “new” injury, the plaintiff was precluded by his contract from collecting further compensation for the injury.

The decision of the review division is reversed and the case is remanded with direction to sustain the appeal of the defendants.

In this opinion the other judges concurred.

       The defendants in the workers’ compensation action were Homestead Insulation Company, Liberty Mutual Insurance Company, C.N. Flagg and Company, Kemper Group, Crouse Nuclear Energy, Zurich American Insurance, Home Insurance Company, American Guarantee and Liability Insurance Company, Cummings Insulation Company and CNA Insurance Company.
      Appeal No. 12112 was filed by Homestead Insulation Company, C.N. Flagg and Company, Crouse Nuclear Energy and Cummings Insulation Company. Appeal No. 12113 was filed by Cummings Insulation Company and CNA Insurance Company. This court granted the motion by the appellants in appeal No. 12112 to adopt the brief of the appellants in appeal No. 12113. Our decision on the appeal by Cummings and CNA is dispositive of appeal No. 12112.

       General Statutes § 31-301b provides: “Any party aggrieved by the decision of the compensation review [division] upon any question or questions of law arising in the proceedings may appeal the decision of the compensation review [division] to the appellate court.”

       The compensation review division of the workers’ compensation commission is now the compensation review board of the workers’ compensation commission. Public Acts 1991, No. 91-339, § 20. We will refer to the entity as the review division since that designation applied when the proceedings commenced.

       General Statutes § 31-299b provides in pertinent part: “If an employee suffers an injury or disease for which compensation is found by the commissioner to be payable according to the provisions of this chapter, the employer who last employed the claimant prior to the filing of the claim, or the employer’s insurer, shall be initially liable for the payment of such compensation. . . .”

       The defendants also claim on appeal that the review division improperly (1) concluded that the conduct of the plaintiff did not constitute wilful and serious misconduct, (2) concluded that Cummings Insulation Company was the last responsible employer, and (3) refused to correct the findings as requested. Since we reverse the judgment of the review division, we need not discuss these issues.

       The parties agreed to have the two claims consolidated.

       The commissioner also found that the plaintiff suffered from colon cancer. The commissioner never made a finding that the asbestos exposure caused the cancer.

       Section 31-301-8 of the Regulations of Connecticut State Agencies provides: “Ordinarily, appeals are heard by the compensation review division upon the certified copy of the record filed by the commissioner. In such cases, the division will not retry the facts or hear evidence. It considers no evidence other than that certified to it by the commissioner, and then for the limited purpose of determining whether the finding should be corrected, or whether there was any evidence to support in law the conclusion reached. It cannot review the conclusions of the commissioner when these depend upon the weight of the evidence and the credibility of witnesses. Its power in the corrections of the finding of the commissioner is analagous to, and its method of correcting the finding similar to the power and method of the Supreme Court in correcting the findings of the trial court.”


author: Lavery, J.

text:
    Connecticut Bank and Trust Company, N.A. v. Carol Reckert et al.
    (11897)
    Foti, Lavery and Cretella, Js.
    Argued November 8, 1993
    decision released March 8, 1994

      Susan Webb, with whom, on the brief, was Bernard Green, for the appellant (named defendant, third party plaintiff).

      Michael P. Foley, Jr., for the appellee (substitute plaintiff).

      Jeffrey A. Blueweiss, for the appellee (third party defendant).
   Lavery, J.

Carol Reekert, the defendant and third party plaintiff, appeals from the judgment of the trial court granting strict foreclosure for the substitute plaintiff, Fleet Bank, N.A. (Fleet), and from the summary judgment for the third party defendant, John Lackland, on the third party complaint. On appeal, Reekert claims that the trial court improperly (1) rendered judgment of strict foreclosure absent evidence that Fleet in fact held the mortgage being foreclosed, (2) permitted an expert witness (to testify in violation of the parties’ agreement, and (3) admitted inadmissible hearsay evidence on the value of the mortgage debt. Reekert also claims that the trial court improperly rendered summary judgment in favor of the third party defendant. We reverse the judgment of strict foreclosure, but affirm the summary judgment in part and reverse it in part.

This appeal arises from an action brought by Fleet to foreclose a mortgage securing a home equity loan of $80,000 executed in 1986 between Reckert and the Connecticut Bank and Trust Company (CBT). As security, Reckert mortgaged her property at 1404 Round Hill Road in Fairfield. Reckert executed the note through Lackland, who purported to act under a power of attorney. Reckert impleaded Lackland as a third party defendant, claiming that he had negligently exceeded his authority, breached an oral contract and violated fair trade practices. Lackland counterclaimed that Reckert had defrauded him.

After trial, the court rendered judgment of strict foreclosure. The trial court also granted Lackland’s motion for summary judgment on the third party complaint. The counterclaim was not adjudicated. This appeal resulted.

I

A

Reckert first argues that the judgment of strict foreclosure was based on evidence insufficient to establish Fleet’s ownership of the mortgage. When considering a sufficiency of the evidence claim, our role is clear. “The function of an appellate court is to review, and not to retry, the proceedings of the trial court. . . . Further, we are authorized to reverse or modify the decision of the trial court only if we determine that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that its decision is otherwise erroneous in law. . . .” (Citations omitted; internal quotation marks omitted.) Naughton v. Hager, 29 Conn. App. 181, 184-85, 614 A.2d 852, cert. denied, 224 Conn. 920, 618 A.2d 527 (1992). “In a civil case, proof of a material fact by inference from circumstantial evidence need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact. . . .” (Citations omitted; internal quotation marks omitted.) Milano v. Sayers, 6 Conn. App. 491, 497, 506 A.2d 162, cert. denied, 199 Conn. 810, 508 A.2d 771 (1986).

Reckert’s mortgage deed listed CBT as the mortgagee. Debora Mitkivicious, a Fleet assistant branch manager, testified that the Federal Deposit Insurance Corporation was CBT’s receiver and had sold CBT and all of its assets to Fleet. She also stated that she obtained Reckert’s mortgage documents and information from Fleet’s office in Hartford. Although Fleet did not submit evidence of an assignment and thereby eliminate every other possibility, the evidence presented permitted the court reasonably to believe in the probability that Fleet owned the mortgage. Therefore, the evidence was sufficient and Reckert’s first claim must fail.

B

Reckert also claims that the trial court abused its discretion by admitting testimony of Fleet’s appraiser, Terrence W. Keegan. This testimony was offered despite the parties’ stipulation that they would rely solely on an appraisal prepared by Morris Lefsetz. Keegan’s testimony, and the court’s refusal to grant Reckert a continuance in order to obtain a new expert, severely and unfairly prejudiced Reckert’s case.

Both parties admitted to the trial court that they had previously stipulated that they would establish the value of the mortgaged property through the appraisal prepared by Lefsetz, who had recently died. Lefsetz had appraised the property at $450,000. On October 21, 1992, however, Fleet notified Reckert that it was hiring another appraiser to look at the property. On October 22, the night before the trial began, Fleet disclosed to Reckert that it intended to offer Keegan’s testimony that the property was worth $330,000.

When the trial began on October 23, Reckert objected to Keegan’s testimony on the grounds that it violated the parties’ stipulation and Practice Book § 220 (D) regarding disclosure of expert witnesses. The trial court overruled the objection and refused to grant Reckert a continuance in order to hire another appraiser.

“A stipulation is a contract, and, as such, the construction of that contract is controlled by the parties’ intent.” Connecticut National Bank v. N. E. Owen II, Inc., 22 Conn. App. 468, 473-74, 578 A.2d 655 (1990), citing Albert Mendel & Sons, Inc. v. Krough, 4 Conn. App. 117, 122-23, 492 A.2d 536 (1985). Fleet admits that it agreed with Reckert to establish the value of the property being foreclosed using Lefsetz’ appraisal. Reckert relied on that stipulation and did not hire another expert after Lefsetz died.

Fleet’s actions coupled with the trial court’s denial of Reckert’s request for a continuance left Reckert with only a written appraisal to counter Keegan’s extensive live testimony. Further, under the parties’ stipulation, the sole evidence on the value of the property would have established a value of $450,000; Keegan’s testimony resulted in the court’s valuation of the property at $390,000.

Moreover, Fleet failed to satisfy Practice Book § 220 (D). That rule requires plaintiffs to disclose the names of experts expected to testify within sixty days of the claim for trial. Experts not disclosed within that time “shall not testify except in the discretion of the court for good cause shown. ” (Emphasis added.) Practice Book § 220 (D). “Neither § 220 (D) nor the cases interpreting it define what constitutes ‘good cause.’ . . .” Knock v. Knock, 224 Conn. 776, 782-83, 621 A.2d 267 (1993). “In determining whether the trial court has abused its discretion, an appellate court should entertain every reasonable presumption in favor of the trial court’s decision.” Id., 783.

Fleet claimed this action to the trial list on September 4,1991. Fleet first disclosed Keegan’s expected testimony on October 21,1992. Thus, in light of the prior understanding, Keegan should not have been permitted to testify absent good cause. Fleet’s counsel explained to the court at trial that Keegan was retained because counsel became dissatisfied with the stipulation of the property’s value. Despite our duty to entertain every reasonable presumption in favor of the trial court’s decision, we cannot agree that changing one’s mind is sufficient good cause to violate a rule of practice. See, e.g., id. (new expert necessary to rebut plaintiff’s new expert; plaintiff sought no continuance); Berry v. Loiseau, 223 Conn. 786, 800, 614 A.2d 414 (1992) (new experts testifying on same topic and defendant granted continuance to prepare cross-examination). “The discovery rules . . . are designed to make a trial less a game of blindman’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent.” (Internal quotation marks omitted.) Knock v. Knock, supra, 782.

Further, “when a party is prejudiced by a failure to disclose in a timely manner, a continuance is ordinarily the proper method to alleviate any prejudice.” Tessmann v. Tiger Lee Construction Co., 228 Conn. 42, 52, 634 A.2d 870 (1993). Here, Reckert learned that Fleet was abandoning its stipulation only two days before trial. Reckert was deprived of an opportunity to obtain a new appraisal and prepare to cross-examine Keegan. A continuance would have been proper under the circumstances. See id.

Thus, it is clear that Fleet’s breach of the stipulation and the trial court’s denial of Reckert’s request for a continuance unfairly prejudiced Reckert. Keegan should have been excluded, or Reckert should have been permitted time to prepare a new appraisal and to cross-examine Keegan properly.

C

Reckert next claims that a portion of Mitkivicious’ testimony was inadmissible hearsay. Fleet attempted to prove the amount still outstanding on the mortgage through her testimony. She testified that she had called the home equity department of her bank and had been told the balance due by a person whose name she did not remember. Reckert’s hearsay objection was overruled.

On review, we will set aside evidentiary rulings only upon a showing of a clear abuse of discretion. Gemme v. Goldberg, 31 Conn. App. 527, 539, 626 A.2d 318 (1993). An out-of-court statement offered to prove the truth of the matter asserted in the statement is hearsay. State v. Crafts, 226 Conn. 237, 253, 627 A.2d 877 (1993). Unless subject to an exception, hearsay is inadmissible. State v. Blades, 225 Conn. 609, 632, 626 A.2d 273 (1993). Mitkivicious’ testimony consisted of a repetition of her telephone conversation with an unidentified person. The statement was made out-of-court and offered to prove the remaining balance. Thus, the statement was hearsay.

Fleet claims that this hearsay was admissible under the business records exception. This argument fails, however, because Fleet never offered a written business record. Fleet orally offered the information purportedly contained in a business record as transmitted by a third person. Thus, Mitkivicious’ testimony about what she was told by a third person should have been excluded.

D

Reckert’s final attack on the judgment of strict foreclosure relates to a letter from Fleet to its counsel. Fleet offered the letter as further proof of the balance due on the mortgage. Mitkivicious testified that Fleet’s counsel first showed her the letter and that she did not know the author. Reckert’s hearsay objection was overruled.

We again state that we will set aside evidentiary rulings only upon a showing of a clear abuse of discretion. Gemme v. Goldberg, supra. As noted earlier, hearsay is a statement made out of court, offered to prove the truth of the matter asserted. State v. Crafts, supra. Thus, a letter offered to prove the truth of the matters asserted therein is inadmissible hearsay.

Fleet offered the letter under the business records exception to the hearsay rule. General Statutes § 52-180 permits hearsay evidence to be admitted if (1) this writing was made in the regular course of business, (2) it was the regular course of the business to make such a writing, and (3) the writing was made at the time of the transaction or occurrence or within a reasonable time thereof. State v. Scott, 31 Conn. App. 660, 665, 626 A.2d 817 (1993). To qualify a document as a business record, the party offering it must present a witness who testifies that these three requirements have been met. State v. Lawler, 30 Conn. App. 827, 831-32, 622 A.2d 1040 (1993). The trial court has discretion to determine whether the statute is satisfied and appellate courts must construe the statute liberally when reviewing abuse of discretion. State v. Scott, supra; State v. Lawler, supra.

Fleet offered the letter through Mitkivicious’ testimony. Her testimony, however, failed to satisfy the requirements of General Statutes § 52-180. Although she claimed that the letter resulted from Fleet’s ordinary course of business and that it was the ordinary course of business for this author to write such a letter, her own testimony undermined her claim. She admitted that the letter was generated by a department in which she had never worked, that she was not familiar with that department’s records and filing system and that she did not know the person who wrote the letter or that person’s position. She also stated that she did not know when the letter was written. Thus, the statutory requirements were not fulfilled.

Moreover, the record establishes that this letter was written for the purposes of this litigation. The business record exception recognizes that documents used for business are trustworthy. Those prepared for litigation, however, lack the presumption of trustworthiness. Id., 832. Thus, the letter written to the plaintiff’s attorney for this litigation failed to satisfy the requirements of the business records exception to the hearsay rule. The letter should have been excluded.

II

Reckert also appeals from the summary judgment rendered on her third party complaint. After Fleet began foreclosure proceedings against Reckert, she impleaded Lackland claiming that he had acted negligently, breached an oral contract, and violated the Connecticut Unfair Trade Practices Act (CUTPA). Lackland responded by special defense that Reckert’s claims were barred by the relevant statutes of limitation. Lackland also counterclaimed that Reckert had defrauded him.

On Lackland’s motion, the trial court found that Reckert’s claims were barred by the statutes of limitation and rendered summary judgment in favor of Lackland. The counterclaim remains unresolved.

A

Before considering the merits of the claim, we must review whether the appeal is properly before us. The jurisdiction of the appellate courts is restricted to appeals from final judgments. General Statutes §§ 51-197a, 52-263; Practice Book § 4000; Solomon v. Keiser, 212 Conn. 741, 745-46, 562 A.2d 524 (1989). This rule discourages piecemeal appeals and facilitates the speedy and orderly disposition of cases at the trial court level. Solomon v. Keiser, supra. We have no authority to address the merits of Reckert’s appeal unless it is properly before us at this juncture. Ackerson v. Stramaglia, 225 Conn. 102, 104, 621 A.2d 1315 (1993).

Practice Book § 4002 provides that summary judgment on an entire complaint constitutes a final judgment. Here, the trial court rendered summary judgment on Reckert’s entire third party complaint. Section 4002 deems that judgment final even though Lackland’s counterclaim against Reckert remains unresolved. Thus, Reckert’s appeal is properly before us. See also Dunham v. Dunham, 221 Conn. 384, 387, 604 A.2d 347 (1992) (review of appeal of counterclaim where complaint unadjudicated); Angelo Tomasso, Inc. v. Armor Construction & Paving, Inc., 187 Conn. 544, 546-47, 447 A.2d 406 (1982) (review of appeal of summary judgment on third party complaint where counterclaim unadjudicated); Zampano v. L. G. DeFelice, Inc., 30 Conn. App. 801, 801 n.1, 622 A.2d 1022 (1993) (review of appeal from dismissal of third party complaint where complaint unadjudicated).

B

The trial court granted summary judgment in favor of Lackland after finding that Reckert’s third party claims were barred by the relevant statutes of limitations. Reckert claims that this judgment was improper because she demonstrated that there were disputed issues that could be resolved only by trial.

“The standard of review of a trial court’s decision to grant a motion for summary judgment is well established. Pursuant to Practice Book § 384, 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. Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact ... a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. ...” (Citations omitted; internal quotation marks omitted.) Scinto v. Stamm, 224 Conn. 524, 530-31, 620 A.2d 99, cert. denied, U.S. , 114 S. Ct. 176, 126 L. Ed. 2d 136 (1993).

Summary judgment was properly rendered on Reckert’s negligence and CUTPA claims. First, she failed to demonstrate a genuine issue of material fact. Reckert’s complaint stated that both the negligence and CUTPA claims arose from Lackland’s conduct on September 29,1986. Lackland asserted that the statute of limitations began to run on that date. Reckert failed to disclose any evidence of a continuing course of conduct that would have tolled the statute of limitations. Practice Book §§ 380,381; Scinto v. Stamm, supra, 530. Therefore, the trial court correctly determined that no genuine issue of material fact existed regarding when the statute of limitations began to run.

Second, Lackland demonstrated that he deserved judgment as a matter of law. The statutes of limitation that apply to the negligence and CUTPA claims require suit to be brought within three years of the conduct or violation. General Statutes § 52-577 (tort claim must be brought within three years of act or omission); General Statutes § 42-110g (f) (allegations of CUTPA violations must be brought within three years of conduct). Thus, Reckert’s negligence and CUTPA claims were barred by the applicable statute of limitations, and the trial court properly entered summary judgment in Lackland’s favor.

Conversely, the trial court improperly rendered summary judgment on Reckert’s contract claim. The trial court ruled that Reckert’s contract claim was barred by General Statutes § 52-581, which imposes a three year limitation on actions brought on executory oral contracts. Tierney v. American Urban Corp., 170 Conn. 243, 248-49, 365 A.2d 1153 (1976) (§ 52-581 applies only to executory contracts). General Statutes § 52-576, however, imposes a six year limitation on actions brought on all other oral contracts. Id. The court had no evidence before it regarding whether the alleged contract had been fully performed or was executory. Thus, the trial court could not have determined whether § 52-581 or § 52-576 applied to this claim. Mac’s Car City, Inc. v. DeNigris, 18 Conn. App. 525, 530, 531, 559 A.2d 712 (1989). Therefore, summary judgment based on § 52-581 was inappropriate because there was a genuine issue whether that statute applied. Id.

The judgment of strict foreclosure is reversed and the case is remanded for a new trial; summary judgment on the third party claims of negligence and a CUTPA violation is affirmed, summary judgment on the third party contract claim is reversed and the case is remanded for a new trial.

In this opinion the other judges concurred.

       Fleet Bank, N.A. was substituted for Connecticut Bank and Trust Company, N.A., pursuant to Practice Book § 99. Fleet did not submit a brief or appendix to this court. We proceeded on the issue of strict foreclosure on the record and Reekert’s brief and appendix.

       A first mortgage held by First Federal Bank in the amount of $264,800 was superior to CBT’s mortgage.

       Practice Book § 220 (D) provides in pertinent part: “[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert . . . the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within 60 days from the date the case is claimed to the trial list. ... If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subsection, or if an expert witness who is expected to testify is retained or specially employed after that date, such expert shall not testify except in the discretion of the court for good cause shown.”

       General Statutes § 52-180 (a) provides in pertinent part: “Any writing or record . . . made as a memorandum or record of any act, transaction, occurrence or event, shall be admissible as evidence of the act, transaction, occurrence or event, if ... it was made in the regular course of any business, and ... it was the regular course of the business to make the writing or record at the time of the act, transaction, occurrence or event or within a reasonable time thereafter.”

       General Statutes § 42-110a et seq.

       Practice Book § 4002 (c) provides in pertinent part: “When . . . summary judgment pursuant to Sec. 378 has been granted upon an entire complaint, counterclaim or cross complaint, such dismissal or summary judgment shall constitute a final judgment. ...”


author: Dupont, C. J.

text:
    Charles S. Bradford et al. v. Steven Herzig
    (12192)
    Dupont, C. J., Lavery and Schaller, Js.

      Argued December 10, 1993
    decision released March 15, 1994

      Miles F. McDonald, Jr., with whom, on the brief, was Luke M. Pittoni, for the appellants-appellees (plaintiffs).

      Daniel E. Ryan III, with whom, on the brief, was W. Patrick Ryan, for the appellee-appellant (defendant).
   Dupont, C. J.

The plaintiffs, Charles S. Bradford and Marjorie K. Bradford, are appealing from the judgment of the trial court in a medical malpractice action rendered in accordance with a jury verdict for them against the defendant physician, Steven Herzig. They claim that the trial court improperly accepted the verdict because (1) contributory negligence was not pleaded as a special defense by the defendant, but the jury verdict assigned 30 percent contributory negligence to the plaintiff, and (2) the jury verdict assigned 25 percent of the negligence involved in the plaintiffs harm to Eckhart Doering, a nonparty physician who treated him. That part of the judgment reducing the plaintiff’s award against the defendant by the amounts attributed to contributory and nonparty negligence is reversed and we remand the case to the trial court for judgment in accordance with this opinion.

The plaintiffs brought suit against the defendant alleging that the plaintiff had suffered injuries as a result of the negligence of the defendant physician, who had treated the plaintiff from May, 1986, to December 18,1987. The plaintiff claims that the defendant’s negligence caused him permanent injury, including “chronic and acute renal failure requiring lifetime dialysis,” “depression,” “personality, behavioral, and psychological injury,” and the substantial impairment of his earning capacity and life expectancy. In his answer, the defendant denied the plaintiff’s allegations of negligence, and did not plead the contributory negligence of the plaintiff as an affirmative defense.

In its instructions to the jury, the trial court stated at the outset that a “defendant may admit some of [the plaintiff’s allegations], he may deny some of them, or he may set up some new matter as a defense. That’s not an issue here, because all we have here is the plaintiffs complaint and the allegations which have been denied by the plaintiff. ” (Emphasis added.) The trial court did not give an instruction on the concept or definition of contributory negligence, mentioning contributory negligence only when reviewing the verdict forms given to the jury.

The verdict forms submitted to the jury contained a question asking the jury to fill in the percentage of negligence, if any, of the plaintiff. Upon reviewing the verdict forms for the jury toward the conclusion of the charge, the court stated: “Percentage of negligence of the plaintiff, Charles Bradford, that’s for you to fill in.” The plaintiff excepted to the mention of contributory negligence in the charge on the ground that it had not been pleaded by the defendant. Readdressing the jury on the verdict forms, the court stated that, in accordance with Connecticut’s comparative negligence statute; General Statutes § 52-572h; if the negligence of the plaintiff exceeded 50 percent, the jury was required to return a defendant’s verdict. After the jury retired, the court expressed concern about not mentioning the element of the plaintiff’s contributory negligence in the charge, but took no action on the matter.

The jury answered special interrogatories declaring that the defendant was negligent on specific dates and that his negligence was the proximate cause of the plaintiffs injuries. The jury also concluded that the non-party Doering’s care was not a superseding cause of the plaintiff’s injuries. In its verdict, however, the jury assessed the relative negligence of the physicians as 75 percent on the part of the defendant and 25 percent on the part of Doering. The jury also found the plaintiff to have been 30 percent contributorily negligent. The court rendered a judgment against the defendant in accordance with the verdict, reducing the damages for the plaintiff by 30 percent and assigning responsibility for 75 percent of that amount to the defendant. The plaintiff appeal from that judgment.

I

The plaintiff contends that the trial court improperly found that the defendant’s failure to plead the plaintiff’s contributory negligence as a special defense pursuant to General Statutes § 52-114 did not bar the jury from considering his contributory negligence in determining the amount of damages to be awarded. The trial court found that the jury properly considered the plaintiff’s negligence in allocating the damages due the plaintiff under the dictate of § 52-572h.

Section 52-114 provides that “[i]n any action to recover damages for negligently causing. . . personal injury ... it shall be presumed that such person . . . who was injured . . . was, at the time of the commission of the alleged negligent act or acts, in the exercise of reasonable care. If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant . . . and the burden of proving such contributory negligence shall rest upon the defendant or defendants.” Thus, there is a presumption of reasonable care on the part of the injured party that the defendant has the burden of overcoming, and the failure of a defendant in a negligence action to plead contributory negligence as an affirmative defense precludes any inquiry into negligent acts by the plaintiff. Delott v. Roraback, 179 Conn. 406, 414, 426 A.2d 791 (1980); Sady v. Liberty Mutual Ins. Co., 29 Conn. App. 552, 556-57, 616 A.2d 819 (1992). It is undisputed that, in the present case, the defendant did not include in his answer any allegation of contributory negligence. Under the terms of § 52-114, he was thus not entitled to a jury instruction on contributory negligence or to a verdict form that included contributory negligence, both of which were provided in this case. Mauro v. Yale-New Haven Hospital, 31 Conn. App. 584, 593, 627 A.2d 443 (1993).

The defendant maintains, however, that § 52-114 does not apply to the jury’s consideration of the plaintiff’s negligence under § 52-572h, the comparative negligence statute. The question for resolution, then, according to the defendant, is whether § 52-572h relieves a defendant of the obligation affirmatively to plead contributory negligence. The defendant claims that there is a conflict between that section and § 52-114, noting the presence of mandatory statutory language in § 52-572h (b) and (f) requiring the jury to consider the plaintiff’s negligence in computing damages. It is the defendant’s contention that the comparative negligence statute, being more specific than § 52-114, was correctly deemed controlling by the trial court, which concluded that “it was not necessary to plead contributory negligence on the part of the plaintiff by the defendant as the statute required the jury to consider the plaintiffs negligence in determining the recovery without regard to any claim of contributory negligence.” The defendant also contends that the plaintiff waived his right to object to the absence of any allegation of contributory negligence in the pleadings by failing to object at trial to the introduction of evidence of contributory negligence.

Although the plaintiff’s alleged contributory negligence is the focus of this claim, exactly what this contributory negligence consists of remains a mystery to this court. The plaintiff stated at oral argument in this court that there was no evidence of contributory negligence presented at trial. The defendant claims that it is clear that the evidence of contributory negligence came out at trial, and consisted of the plaintiffs failure to follow the defendant’s instructions. The record before this court is devoid, however, of any documentation that such evidence actually existed, much less whether the plaintiff objected to its introduction at trial. Neither party has filed any transcript relating to the introduction of evidence of contributory negligence, or relating to the plaintiff’s failure to follow the defendant’s instructions.

Whether pleaded or not in this case, contributory negligence is an affirmative defense, and the burden of proof was on the defendant to establish its existence. Even if § 52-572h (f) (5) eliminates the necessity of pleading contributory negligence, the burden of proving its existence and of presenting sufficient evidence for the jury to make a finding as to contributory negligence was on the defendant. See Sady v. Liberty Mutual Ins. Co., supra.

The plaintiff, not being required to disprove contributory negligence to establish a prima facie case of negligence against the defendant, should not have to show the absence of contributory negligence on appeal. Such a rule, in effect, would require the plaintiff, who claims that no reduction in the jury’s award for his contributory negligence should be made, to prove a negative. The plaintiff has raised the issue of whether the evidence supports a material finding, and is entitled to know upon what evidence the defendant relies. Jennings v. Reale Construction Co., 175 Conn. 16, 20, 392 A.2d 962 (1978); Northwestern Electric, Inc. v. Rozbicki, 6 Conn. App. 417, 421-22, 505 A.2d 750 (1986). The burden is on the defendant to supply a record sufficient to support a finding of the plaintiff’s contributory negligence, especially where the defendant alleges that the plaintiff failed to object to the introduction of such evidence at trial.

It is undisputed that the defendant did not plead contributory negligence in his answer. Without any evidence before this court to support the jury’s finding of contributory negligence and the defendant’s claim that the plaintiff failed to object to its admission into evidence, we can come to no other conclusion than that the jury’s finding of contributory negligence was improper.

Moreover, the trial court clearly stated at the beginning of its charge to the jury that the defendant had only denied the plaintiff’s allegations, and had set up no new matter as a defense. It was only at the close of the charge, when the court was reviewing the verdict form with the jury, that a cursory mention of contributory negligence was made. The court later expressed a reservation that it had not mentioned contributory negligence in the charge, but nonetheless allowed the jury to decide the question of the plaintiff’s contributory negligence. It is evident that the court’s charge provided no guidance to the jury as to the definition of contributory negligence or its role in this case. The charge was misleading because the jury was led to believe at the outset that there were no affirmative defenses, and then was told, in essence, that there was an affirmative defense, namely contributory negligence. Its verdict on that issue must be set aside.

II

The plaintiffs second claim is that the trial court, in accordance with the jury’s verdict, improperly assigned 25 percent of the negligence included in the plaintiff’s harm to a nonparty physician, Doering. The trial court concluded that sufficient evidence existed to uphold the jury’s finding that Doering was partially responsible for the plaintiff’s injuries. We hold that the negligence of a nonparty should not have been considered by the jury and reverse the decision of the trial court.

General Statutes § 52-572h (f) provides that “[t]he jury . . . shall specify ... (4) the percentage of negligence that proximately caused the injury . . . in relation to one hundred per cent, that is attributable to each party whose negligent actions were a proximate cause of the injury . . . .” (Emphasis added.) It is clear from the language of the statute that the jury is entitled to attribute and divide the percentage of negligence only among parties to the action. Here, the only party whose negligent actions were a proximate cause of the plaintiff’s injury was Herzig, the defendant. Doering was not a party to the action, and no negligence could properly be attributed to him by the jury. There is no complaint or third party complaint against Doering and no way to determine what comprised his alleged negligence. Also, there is obviously no answer or special defense by Doering possible, because he is not a party. We conclude as a matter of law that 100 percent of the negligence (excluding the percentage attributable to the plaintiff, which we have already concluded to be zero in this case) that proximately caused the injury must be attributed to the defendant.

It is axiomatic that “where the negligence of two persons concurs to produce a single result, a plaintiff can elect to sue either or both.” Fox v. Fox, 168 Conn. 592, 594, 362 A.2d 854 (1975); see also Gionfriddo v. Gartenhaus Cafe, 15 Conn. App. 392, 397, 546 A.2d 284 (1988), affirmed, 211 Conn. 67, 557 A.2d 540 (1989). The plaintiff had the right to choose either or both of two defendants to sue. If the defendant believed that a nonparty was responsible for some or all of the plaintiffs injuries, it was his responsibility to implead that nonparty. General Statutes §§ 52-102, 52-102a.

Although a judgment against a plaintiff in an action against one tortfeasor does not itself terminate that plaintiffs right to sue another party who may be liable for the same injury; Practice Book § 97; the plaintiff here is caught in a dilemma if § 52-572h (f) (4) is read to allow the total amount of damages found by the jury to be due the plaintiff to be reduced by 25 percent. The damages found attributable to Doering as a nonparty are not a judgment and do not bind Doering. The plaintiff cannot obtain a judgment against Doering without bringing a separate action against him. Such an action would be time barred in this case. The plaintiff would therefore be forced to sue all possible joint tortfeasors before the statute of limitations ran in either the same action or a separate action. If he chose a separate action, and the first action had terminated with the jury’s determination that Doering was responsible for 25 percent of the damages, the plaintiff would be limited to a cap of 25 percent of the first jury’s verdict in his action against Doering. Gionfriddo v. Gartenhaus Cafe, supra, 399-400. It is also possible that the plaintiff would be unable to collect anything from Doering because a jury in an action actually defended by Doering might not find him liable at all.

The jury’s answers to the special interrogatories stated that the negligent conduct of the defendant that caused the plaintiff to require “daily, on-going dialysis” occurred on July 13,1987, and October 15,1987, and that by November 20, 1987, the plaintiff’s renal damage was so severe that it was inevitable that “permanent daily self-dialysis” would be necessary. At that time, the plaintiff had not yet been treated by Doering. It is thus unclear how the nonparty physician’s conduct could have been a proximate cause of the plaintiffs injuries that were the subject of the jury’s verdict against the defendant. Section 52-572h (f) speaks of “the injury,” reflecting the fact that the statute relates to one injury, and therefore to joint tortfeasors. It is doubtful on the basis of the jury’s answers to the interrogatories that we are dealing with joint tortfeasors. The facts found by the jury would indicate that the two physicians caused separate and distinct injuries to the plaintiff, so that § 52-572h (f) would never apply. See Reilly v. DiBianco, 6 Conn. App. 556, 565, 507 A.2d 106, cert. denied, 200 Conn. 804, 510 A.2d 193 (1986).

We hold that the trial court’s judgment improperly allocated to a nonparty a percentage of the negligence that caused the plaintiff’s injuries.

Ill

The only remaining issue concerns the remedy that we should grant to the plaintiff. The defendant argues that a new trial on all issues should be granted because the jury’s verdict is ambiguous, and because the issues of liability and damages are inextricably interwoven. The defendant cites Murray v. Krenz, 94 Conn. 503, 508-509, 109 A. 185 (1920), in support of the proposition that the jury might have reached a “compromise verdict” in this case, and that both the issues of liability and damages must be relitigated. Id. Unlike the trial court in that case, however, the trial court here gave no indication that it believed the jury reached a “compromise verdict.” Also, in Murray v. Krenz, supra, the plaintiff sought a new trial as to damages on the ground that the verdict itself was against the evidence. Here, the plaintiff’s claims address only portions of the verdict, and are unrelated to the amount of the verdict. The plaintiff’s claims of contributory negligence and nonparty negligence can be remedied without setting aside the whole verdict. We therefore do not find Murray v. Krenz, supra, to be controlling.

A jury’s verdict should not be set aside unless “the manifest, injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles . . . .” (Internal quotation marks omitted.) Caciopoli v. Acampora, 30 Conn. App. 327, 331, 620 A.2d 191 (1993). The jury properly found the defendant liable for the plaintiff’s injuries and determined the amount of damages to which the plaintiff was entitled. A new trial is not necessary, therefore, to establish either liability or damages. See Caron v. Adams, 33 Conn. App. 673, 685, 638 A.2d 1073 (1994).

The verdict form explicitly stated that, without regard to the negligence of the plaintiff, the jury found the plaintiff’s damages to be $419,000 and his wife’s damages to be $25,000. Those findings are valid and need not be set aside. The first impropriety in this case occurred when the jury found the plaintiff to have been 30 percent contributorily negligent, which resulted in the court’s reduction of the total award due to both plaintiffs by 30 percent. The second impropriety occurred when the jury found Doering to have been 25 percent negligent, which resulted in the court’s rendering of judgment of only 75 percent of the total damages against the defendant. The jury should have considered neither the plaintiff’s contributory negligence nor Doering’s negligence. Marjorie Bradford is entitled to the whole of her damages from the defendant, totaling $25,000. Charles Bradford is entitled to the whole of his damages, less $42,738.45 in collateral source payments, from the defendant, totaling $376,261.55.

The judgment is reversed to the extent that it reduced the award to the plaintiffs and the case is remanded with direction to render judgment for the plaintiffs in accordance with this opinion.

In this opinion the other judges concurred.

       Marjorie K. Bradford seeks damages for loss of consortium. In this opinion, the term plaintiff refers to Charles S. Bradford.

       The defendant filed a cross appeal alleging that the trial court had improperly failed to reduce the plaintiffs award by the correct amount of collateral source payments. This claim was abandoned by the defendant and is not at issue here.

       General Statutes § 52-572h provides in relevant part: “(b) In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages resulting from personal injury . . . if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought .... The economic or noneconomic damages allowed shall be diminished in the proportion of the percentage of negligence attributable to the person recovering which percentage shall be determined pursuant to subsection (f) of this section. . . .
      “(f) The jury or, if there is no jury, the court shall specify: (1) The amount of economic damages; (2) the amount of noneconomic damages; (3) any findings of fact necessary for the court to specify recoverable economic damages and recoverable noneconomic damages; (4) the percentage of negligence that proximately caused the injury . . . in relation to one hundred per cent, that is attributable to each party whose negligent actions were a proximate cause of the injury . . . and (5) the percentage of such negligence attributable to the claimant. ...”

       The special interrogatories were presented and answered as follows:
      “1. Do you find the defendant, Dr. Herzig, to have deviated from the standard of care applicable to physicians such as himself and therefore to have been negligent in his treatment of the plaintiff, Charles Bradford?
      “Yes
      “2. Do you find the defendant, Dr. Herzig’s negligence to have been a proximate cause of the plaintiffs injury?
      “Yes
      “3. Do you find Dr. Doering’s care to have been a superseding cause of the plaintiff’s injury?
      “No
      “4. Please specify the dates upon which you find the defendant, Steven Herzig, M.D., to have been negligent, and which negligence constituted a proximate cause of the plaintiff, Charles Bradford’s requirement for daily, on-going dialysis.
      “7/13/87 and 10/15/87 (Proximate Cause)
      “5. Please specify, by date, the time when you determine the plaintiff, Charles Bradford’s, renal damage to have become so severe that it was inevitable (even if not then known) that permanent daily self-dialysis would become necessary.
      “11/20/87”

       The jury found that the plaintiff had suffered $419,000 past and future economic and noneconomic damages from his injuries, and that Marjorie Bradford had suffered $25,000 in past noneconomic and future economic damages from loss of consortium. The court deducted collateral source payments of $42,738.45 from the past economic damages due to the plaintiff, and then reduced the entire amount of damages due to both plaintiffs by 30 percent in accordance with the jury’s finding of the named plaintiff’s “contributory negligence.” The court held the defendant responsible for 75 percent of the $280,883.08 total damages collectively due to the plaintiffs, or $210,662.31.

       See footnote 3.

       An alleged failure by the plaintiff to follow his physician’s instructions would usually constitute a failure to mitigate damages rather than a contributing proximate cause of the negligence that caused the plaintiffs injury. Mauro v. Yale-New Haven Hospital, 31 Conn. App. 584, 593, 627 A.2d 443 (1993).

       Therefore, we need not answer the question posed by the defendant of whether General Statutes § 52-572h relieves a defendant of the obligation to plead contributory negligence affirmatively.

       This section is part oí a statute commonly known as Tort II, which became effective on October 1, 1987. The sentence quoted in the text corresponds precisely to language that was found in the same section of the statute commonly known as Tort I, except for the use of the word “party” instead of “person.” We apply the Tort II statute to this situation because the acts of negligence allegedly attributable to Doering had to have occurred after October 1,1987, because the plaintiff was not treated by Doering until December, 1987.