author: ALVORD, J.

text:
    TRACEY HAYNES ET AL. v. CITY OF MIDDLETOWN
    (AC 30964)
    DiPentima, Beach and Alvord, Js

    Argued March 9
    officially released June 22, 2010

      Michael L. Oh, with whom, on the brief, were William F. Gallagher and Mark A. Balaban, for the appellants (plaintiffs).

      Matthew Dallas Gordon, with whom was Deirdre D. Stokes, for the appellee (defendant).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

ALVORD, J.

The named plaintiff, Tracey Haynes, filed this action as parent and next friend of the plaintiff, Jasmon Vereen, her then minor son, and on her own behalf, for his medical expenses, against the defendant city of Middletown for injuries the plaintiff sustained when a fellow student pushed him into a broken locker in the men’s locker room at Middletown High School. The plaintiffs appeal from the judgment of the trial court granting the defendant’s motion to set aside the jury verdict in favor of the plaintiff in the amount of $30,000. On appeal, the plaintiffs claim that the court improperly set aside the verdict on the ground of governmental immunity because (1) the defendant waived that defense by failing to request a jury charge on municipal immunity and (2) there was sufficient evidence of imminent harm for the plaintiffs claim to fall within the identifiable person, imminent harm exception to the immunity generally afforded municipalities for the negligent performance of discretionary acts. We conclude that the court properly set aside the jury verdict on the ground of governmental immunity, although we reach that conclusion for reasons other than those stated by the court in .its decision.

The following facts reasonably could have been found by the jury. On March 15, 2005, the. plaintiff and other students at Middletown High School were in the men’s locker room after their physical education class. They had approximately five minutes to change out of their gym clothes before they were required to leave for their next scheduled class. Despite a written policy against horseplay in the locker rooms and gymnasium areas given in a handout to the students taking physical éducation classes at the beginning of each school year, the plaintiff and some of the other students began engaging in horseplay. They were swinging each other around and trying to throw each other to the ground. One of the students pushed the plaintiff into a jagged, broken locker that, according to the testimony of two of the witnesses, had been in that condition since the fall of 2004. The metal of the locker cut the plaintiffs arm. Although he does not plan on having plastic surgery, the injury left a scar.

The plaintiffs commenced the present action against the defendant seeking monetary damages. In their complaint filed March 30,2007, they alleged that the plaintiff was a student at Middletown High School, that he was in the school’s locker room with other students on March 15, 2005, for a physical education class, that there was a broken locker with an exposed jagged and rusty edge in that room, that the locker had been in that condition for a period long enough for the exposed metal to have become rusty and that the plaintiff was injured when he was pushed into the broken locker during school horns. The complaint alleged that the defendant and its agents, servants or employees were negligent, and that the action was being brought pursuant to General Statutes § 52-557n. The defendant denied the plaintiffs’ allegations of negligence and pleaded special defenses of governmental immunity and comparative negligence. The plaintiffs replied to the defendant’s special defenses with a general denial.

The case was tried before a jury on November 21, 2008. In support of their negligence claim, the plaintiffs presented two witnesses in addition to the plaintiff and submitted medical records, a student accident report and various photographs of the plaintiff’s injury and the locker as full exhibits. At the close of the plaintiffs’ case, the defendant moved for a directed verdict on the ground that the plaintiffs had presented no evidence to show that the alleged actions of the defendant were governed by any policies or procedures, as alleged in their complaint. The defendant argued that the lack of any such evidence demonstrated that the alleged negligent actions were discretionary and not ministerial, and that the doctrine of governmental immunity therefore would bar the plaintiffs’ recovery. Counsel for the plaintiffs responded that “there is no question that this would be discretionary. It’s not ministerial.” He then argued that the identifiable person, imminent harm exception would apply because the “condition of the lockers . . . presented an imminent harm to [an] identifiable class of victims . . . the students in the locker room.” The defendant responded that the identifiable person, imminent harm exception solely applied to municipal employees and that it did not apply when the municipality is the only named defendant in a negligence action. The court reserved judgment on the motion, and the defendant then presented its case to the jury.

Following the conclusion of the evidence and the parties’ closing arguments, the court charged the jury on the law of negligence and comparative negligence. In that charge, the court recited seven of the nine claims of negligence set forth in the plaintiffs’ complaint. The court omitted the allegations in the complaint that the broken locker violated basic safety codes and presented a danger foreseeable to injure young men such as the plaintiff and that the defendant failed to make proper and reasonable inspection. See footnote 6 of this opinion. The court did not give an instruction on the defendant’s special defense of governmental immunity, nor did it give an instruction on the identifiable person, imminent harm exception to municipal immunity. Neither party had requested instructions addressed to governmental immunity or to the exceptions to governmental immunity, and neither party objected to the court’s charge as given.

In addition to the exhibits admitted during the trial, the jurors received agreed on verdict forms and jury interrogatories prior to their deliberations. Again, none of the interrogatories addressed the issue of governmental immunity or an exception to that immunity. On November 25, 2008, the jury returned a verdict in favor of the plaintiff and awarded him damages. In the interrogatories, the jury indicated that the defendant was negligent, that its negligence was the proximate cause of the plaintiffs injury and that the plaintiff was 33 percent hable for his own injury. On December 2, 2008, the defendant, pursuant to Practice Book §§ 16-35 and 16-37, filed a motion to set aside the verdict and to render judgment in favor of the defendant, which the court granted. The court concluded that “governmental immunity insulates the [defendant] from the claim and verdict in this case.” This appeal followed.

“The trial court possesses inherent power to set aside a jury verdict which, in the court’s opinion, is against the law or the evidence.” (Interna! quotation marks omitted.) Auster v. Norwalk United Methodist Church, 94 Conn. App. 617, 620, 894 A.2d 329 (2006), aff'd, 286 Conn. 152, 943 A.2d 391 (2008). In the present case, we conclude that the court properly set aside the jury verdict because the verdict was against the law. We reach that conclusion because the defendant specially pleaded and proved that it was entitled to governmental immunity, but the plaintiffs failed to plead an exception to discretionary act immunity under § 52-557n (a) (2) (B) in their reply to the defendant’s special defense.

“The general rule is that governments and their agents are immune from liability for acts conducted in performance of their official duties. The common-law doctrine of governmental immunity has been statutorily enacted and is now largely codified in General Statutes § 52-557n.” (Internal quotation marks omitted.) Martin v. Westport, 108 Conn. App. 710, 729, 950 A.2d 19 (2008). Section 52-557n (a) (1) sets forth the circumstances under which a municipality will be held liable for damages to a person. This statute provides in relevant part: “Except as otherwise provided by law, apolitical subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties . . . .” General Statutes § 52-557n (a) (1) (A). The statute also specifies two exceptions to the statutory abrogation of governmental immunity. The exception relevant to this appeal provides: “Except as otherwise provided by law, apolitical subdivision of the state shall not be liable for damages to person or property caused by . . . (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.” General Statutes § 52-557n (a) (2).

The determination of whether official acts or omissions are ministerial or discretionary is normally a question of fact, although there are cases in which it is apparent from the complaint that the alleged negligent actions or omissions necessarily involved the exercise of judgment and were discretionary as a matter of law. See Swanson v. Groton, 116 Conn. App. 849, 854, 977 A.2d 738 (2009). In this case, however, as previously noted, the plaintiffs already had conceded that the defendant’s actions were discretionary in nature. Accordingly, the doctrine of governmental immunity would bar the plaintiffs’ recovery for their claims unless an exception to governmental immunity was applicable to this case. The only exception claimed to be applicable to the present case is the exception permitting a tort action in circumstances of likely imminent harm to an identifiable person. Accordingly, the plaintiff could prevail on his claim only by pleading and proving the sole relevant exception to discretionary act immunity.

The plaintiffs filed a general denial to the defendant’s specially pleaded defense of governmental immunity. When the defendant moved for a directed verdict at the conclusion of the evidence in the plaintiffs’ case, they indicated that the identifiable person, imminent harm exception was applicable to the facts of the case. The plaintiffs did not, however, move to amend their reply to allege the identifiable person, imminent harm exception to governmental immunity. See Violano v. Fernandez, 280 Conn. 310, 325-26, 907 A.2d 1188 (2006). When the plaintiffs conceded that the defendant’s actions were discretionary, it then clearly was the plaintiffs’ burden to plead and to prove the exception to that immunity. Pursuant to Practice Book § 10-57, a “[m]atter in avoidance of affirmative allegations in an answer or counterclaim shall be specially pleaded in the reply. . . .” The plaintiffs failed to comply with the rules of practice and failed to place this issue before the jury.

Accordingly, our plenary review of the pleadings; see Petitte v. DSL.net, Inc., 102 Conn. App. 363, 374, 925 A.2d 457 (2007); discloses that the plaintiffs never made the applicability of the identifiable victim, imminent harm exception to discretionary act immunity a legal issue in the case because they failed to plead it in their complaint or in their reply to the defendant’s special defense of governmental immunity. Without a jury finding that the defendant’s negligence subjected the plaintiff to imminent harm, the plaintiff legally could not prevail on his negligence claim. We therefore conclude that the plaintiff was not entitled to judgment and that the court properly set aside the jury verdict in his favor.

The judgment is affirmed.

In this opinion the other judges concurred.

       In this opinion, we refer to Vereen as the plaintiff, and to Vereen and Haynes collectively as the plaintiffs.

       The jury reduced that award by 33 percent for the plaintiffs comparative negligence. From our review of the record and transcript, it does not appear that a verdict form was submitted to the jury with respect to the damages initially sought in the complaint by Haynes individually for the plaintiffs medical expenses. The jury did not award her any damages.

       The court concluded that the plaintiff failed to prove that the risk of harm from the defective locker was limited in time. In its memorandum of decision filed March 31, 2009, the court stated: “There is no way to predict, by a preponderance of the evidence, when the imminent harm would have occurred, if at all. Therefore, there is no factual basis sufficient to demonstrate the risk of imminent harm, and the jury could not find that all of the elements of the exception were met.”
      Although we conclude that the plaintiff cannot prevail in this action, we do so for different reasons than those articulated by the trial court. We are “not required to reverse a ruling of the trial court which reached a correct result, albeit for a wrong reason.” (Internal quotation marks omitted.) Flagg Energy Development Corp. v. General Motors Corp., 244 Conn. 126, 151, 709 A.2d 1075 (1998).

       Robert Smemoff, one of the school’s physical education teachers at the time of the incident, testified that there were seven periods during the school day. When the plaintiffs physical education class had ended, Smemoff unlocked the doors to the two locker rooms and monitored the locker rooms while the students were changing their clothes. He testified that horseplay was an issue at the school and that he tried to move the students along so the incoming class would not mix with the outgoing class. He also testified that sometimes the students would stay in the locker room past the allotted time in order to visit with the incoming students.

       The plaintiffs’ action is a direct action against the defendant city. They did not name any of the defendant’s individual employees as defendants in this action.

       The plaintiffs alleged that the defendant was negligent in one or more of the following ways:
      “(a) in that it knew or should have been aware of the condition of the broken, rusty, jagged locker before the incident;
      “(b) in that it caused or allowed and permitted the locker to remain in disrepair in an area where students were required to pass;
      “(c) in that it caused or allowed and permitted the broken, jagged, rusty locker to be exposed to persons required to be in said locker room;
      “(d) in that said broken locker violated basic safety codes and presented a danger foreseeable to injure young men such as the plaintiff;
      “(e) in that it maintained said property in the men’s locker room in the aforesaid conditions;
      “(f) in that it failed to repair or remedy said conditions when the same were reasonably necessary under the circumstances;
      “(g) in that it failed to warn the plaintiff of the aforesaid conditions;
      “(h) in that it failed to supervise the students to prevent them from going near the aforementioned dangerous condition; and
      “(i) in that it failed to make proper and reasonable inspection.”

       General Statutes § 52-557n (a) provides: “(1) Except as otherwise provided by law, a political subdivision of the state shall be liable for damages to person or property caused by: (A) The negligent acts or omissions of such political subdivision or any employee, officer or agent thereof acting within the scope of his employment or official duties; (B) negligence in the performance of functions from which the political subdivision derives a special corporate profit or pecuniary benefit; and (C) acts of the political subdivision which constitute the creation or participation in the creation of a nuisance; provided, no cause of action shall be maintained for damages resulting from injury to any person or property by means of a defective road or bridge except pursuant to section 13a-149. (2) Except as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by: (A) Acts or omissions of any employee, officer or agent which constitute criminal conduct, fraud, actual malice or wilful misconduct; or (B) negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law.”

       The defendant conceded at oral argument before this court that Grady v. Somers, 294 Conn. 324, 984 A.2d 684 (2009), which was decided after the parties had filed their appellate briefs, resolved this issue contrary to the defendant’s argument before the trial court. In Grady, our Supreme Court determined that the common-law identifiable person, imminent harm exception applies to the discretionary act immunity provided to municipalities in an action brought solely against a municipality pursuant to § 52-557n (a).

       The plaintiffs verdict form requested only an award of noneconomic damages.

       At the time the defendant moved for a directed verdict at the close of the plaintiffs’ case, the plaintiffs admitted that all of the alleged negligent actions of the defendant were discretionary in nature, not ministerial.

       “The immunity from liability for the performance of discretionary acts by a municipal employee is subject to three exceptions or circumstances under which liability may attach even though the act was discretionary: first, where the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm . . . second, where a statute specifically provides for a cause of action against a municipality or municipal official for failure to enforce certain laws . . . and third, where the alleged acts involve malice, wantonness or intent to injure, rather than negligence.” (Citations omitted.) Evon v. Andrews, 211 Conn. 501, 505, 559 A.2d 1131 (1989).

       “The imminent harm exception to discretionary act immunity applies when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm .... By its own terms, this test requires three things: (1) an imminent harm; (2) an identifiable victim; and (3) a public official to whom it is apparent that his or her conduct is likely to subject that victim to that harm. . . . [T]his exception to the general rule of governmental immunity for employees engaged in discretionary activities has received very limited recognition in this state. ... If the plaintiffs fail to establish any one of the three prongs, this failure will be fatal to their claim that they come within the imminent harm exception.” (Citations omitted; internal quotation marks omitted.) Violano v. Fernandes, 280 Conn. 310, 329, 907 A.2d 1188 (2006).
      In its appellate brief, the defendant conceded that the plaintiff would be an identifiable person for purposes of the exception. “[W]e have established specifically that schoolchildren who are statutorily compelled to attend school, during school hours on school days, can be an identifiable class of victims.” Purzycki v. Fairfield, 244 Conn. 101, 109, 708 A.2d 937 (1998).

       “Pleadings have an essential purpose in the judicial process. . . . The purpose of pleading is to apprise the court and opposing counsel of the issues to be tried .... For that reason, [i]t is imperative that the court and opposing counsel be able to rely on the statement of issues as set forth in the pleadings.” (Citations omitted; internal quotation marks omitted.) Somers v. Chan, 110 Conn. App. 511, 528, 955 A.2d 667 (2008). It is fundamental in our law that “the right of a plaintiff to recover is limited by the allegations of the complaint . . . and any judgment should conform to the pleadings, the issues and the prayers for relief.” (Internal quotation marks omitted.) Journal Publishing Co. v. Hartford Courant Co., 261 Conn. 673, 686, 804 A.2d 823 (2002). “The [trial] court is not permitted to decide issues outside of those raised in the pleadings.” (Internal quotation marks omitted.) Gaffey v. Gaffey, 91 Conn. App. 801, 804 n.1, 882 A.2d 715, cert. denied, 276 Conn. 932, 890 A.2d 572 (2005). “Facts found but not averred cannot be made the basis for a recovery.” (Internal quotation marks omitted.) Moulton Bros., Inc. v. Lemieux, 74 Conn. App. 357, 361, 812 A.2d 129 (2002).

       “It is an elementary rule that whenever the existence of any fact is necessary in order that a party may make out his case or establish his defense, the burden is on such party to show the existence of such fact.” (Internal quotation marks omitted.) Zhang v. Omnipoint Communications Enterprises, Inc., 272 Conn. 627, 645, 866 A.2d 588 (2005), quoting Nikitiuk v. Pishtey, 153 Conn. 545, 552, 219 A.2d 225 (1966); see C. Tait, Connecticut Evidence (3d Ed. 2001) § 3.3.1, p. 136 (“[wjhoever asks the court to give judgment as to any legal right or liability has the burden of proving the existence of the facts essential to his or her claim or defense”). “The burden of proof in any proceeding lies at first on that party against whom the judgment of the court would be given if no evidence at all were produced on either side.” (Internal quotation marks omitted.) Nikitiuk v. Pishtey, supra, 552-53.

       Although the jury found the defendant’s actions or omissions with respect to the broken locker to be negligent, the jury did not find that the defendant’s negligence subjected the plaintiff to imminent harm. There was no jury instruction or jury interrogatory addressed to the issue of imminent harm, nor could the issue properly have been submitted to the jury because the exception had not been pleaded by the plaintiffs. The question of the existence of imminent harm is a factual one. The fact finder must assess the credibility and the weight to be given the testimony of the witnesses to make that determina! ion. See Tryon v. North Branford, 58 Conn. App. 702, 716, 755 A.2d 317 (2000).


source: Caselaw Access Project

author: PELLEGRINO, J.

license: Public Domain

text:
    LYNN A. CERVERO v. MORY’S ASSOCIATION, INC., ET AL.
    (AC 31110)
    Gruendel, Alvord and Pellegrino, Js.
    Argued March 22
    officially released June 22, 2010

      John A. Keyes, for the appellant (plaintiff).

      Donald F. Babiyan, for the appellees (defendants).
   Opinion

PELLEGRINO, J.

The plaintiff, Lynn A. Cervero, appeals from the decision of the workers’ compensation review board (board) affirming the decision of the workers’ compensation commissioner (commissioner) denying her request that her employer pay for two level disc surgery for her compensable injury. On appeal, the plaintiff claims that the board improperly sustained the commissioner’s finding that her surgery was not medically reasonable or necessary pursuant to General Statutes § 31-294d. We affirm the decision of the board.

The following factual and procedural history is necessary for our discussion. The plaintiff was injured on June 6, 2002, while employed by the defendant Mory’s Association, Inc., as a “ ‘waitress-bartender.’ ” The plaintiff injured her lower back while “ ‘carrying heavy trays from the basement ... to the first floor’ ” of the defendant’s New Haven restaurant. A voluntary agreement, under which the defendant accepted that the injury was compensable, was approved by Commissioner George A. Waldron on October 2, 2002.

Following her injury in 2002, the plaintiff went to her primary care physician, who referred her to Michael Connair, an orthopedic surgeon. Connair prescribed conservative treatment, including “ ‘lamp therapy,’ ” a “ ‘Medrol dose pack,’ ” prescription medications and physical therapy. On June 18, 2002, Connair diagnosed the plaintiff with “ ‘multi-level degenerative dis[c] disease with spur formation at L4-5, L2-3 and Ll-2 and T12-L1.’ ” On September 24, 2002, after a magnetic resonance imaging (MRI) scan, Connair determined that the plaintiffs condition was “ ‘not severe enough to warrant surgical intervention at this time.’ ”

In October, 2002, Connair referred the plaintiff to Josef K. Wang, a physician, for a pain management evaluation. Wang suggested “ ‘lumbar epidural steroid injections to control [the plaintiffs] pain’ ” and administered two such injections. The defendant asked the plaintiff to be evaluated by its expert witness, John J. Shine, an orthopedic surgeon, on November 14, 2002. Shine’s review of the July, 2002, MRI reports indicated that the plaintiff had “ ‘severe dis[c] degeneration at L4-5 with some slight narrowing of the foramen on the left side but no canal stenosis.’ ” The report further showed “ ‘minimal disc bulging atL5-Sl.’ ” Shine recommended pool therapy and “ ‘use of a lumbar support brace.’ ”

In May, 2003, the plaintiff sought a second opinion from another orthopedic surgeon, Kenneth M. Kramer. The plaintiff testified that Kramer provided “ ‘traction therapy’ ” and “ ‘facet’ injections.” Kramer agreed with Connair that the plaintiff had a light duty work capacity and should be treated conservatively. He suggested a follow-up MRI scan to ascertain if the plaintiff would be an appropriate candidate for a “ ‘lumbar decompression at L4-5.’ ” In August, 2003, Kramer determined that the plaintiff was not “ ‘surgical under the circumstances’ ” and recommended that she return to physical therapy.

In January, 2004, the defendant had the plaintiff examined by another expert witness, Robert N. Mar-golis, an orthopedic surgeon. Margolis diagnosed the plaintiff with “ ‘[l]umbar strain syndrome’ ” and “ ‘[m]arked degenerative motion segment disease at L4-5.’ ” Margolis noted that “ ‘virtually no form of treatment helps her.’ ” Margolis concurred with Kramer and Con-nair that the plaintiff had a light duty work capacity. He determined that she had reached maximum medical improvement and assigned a 12 percent permanent impairment to her lumbar spine. Margolis further concluded that “ ‘[t]here [was] absolutely no question in [his] mind that she is not a surgical candidate for any type of procedure.’ ”

In February, 2004, Kramer opined that the plaintiffs condition had “ ‘partly improved.’ ” He determined that no additional formal treatment measures were “ ‘indicated or anticipated’ ” and determined that the plaintiff had reached maximum medical improvement with an 8 percent permanent partial impairment rating and a permanent sedentary work restriction.

Nonetheless, because her “ ‘back pain was getting worse,’ ” the plaintiff began treatment with Steven P. Novella, a neurologist. The plaintiff paid for Novella’s treatment through her private insurance. The plaintiff testified that Novella placed her on “ ‘a lot of medications’ ” and put her back on “ ‘traction therapy.’ ” The plaintiff returned to work in September, 2004, at Seaside Mattress, where she worked up to four hours a day handling telephone duties. She continued to work there until June or July, 2005, when she left because she could not commit to working every day and had to leave work sporadically due to her back pain.

The plaintiff thereafter met with John G. Strugar, a neurosurgeon, for consultation and advice. Strugar opined that he “ ‘[could not] clearly recommend surgery for this patient at this point.’ ” He suggested that “ ‘there is an indication here for dis[c] replacement at the L4-5, even at L2-3. However, that would be quite difficult to do at that level.’ ” He recommended a more conservative course of treatment, including an.aqua therapy program. He further suggested that the plaintiff should consult James J. Yue, a neurosurgeon, regarding disc replacement.

Yue examined the plaintiff on October 17, 2005. He evaluated her MRI scans from April, 2005, and diagnosed “ ‘L4-L5 discogenic changes with a central dis[c] bulge, some mild L5-S1 discogenic changes and a normal appearing L4-L5 level.’ ” He recommended a disco-gram that revealed “ ‘[m]ultilevel degenerative dis[c] and facet degenerative changes’ ” and a “ ‘small end-plate cyst on the superior aspect of L5.’ ” Yue directed the plaintiff to return to Wang for additional pain management treatment. The plaintiff testified that Wang has had her take Percocet for two years as of the date of the formal hearing. Yue recommended surgery for the plaintiff.

On February 2, 2006, Yue stated that “ ‘[t]he patient desires to proceed with surgical correction of her issues.’ ” He recommended a “ ‘L4-L5 and L5-S1 dis[c] replacement’ ” but also suggested that a cyst might make replacement of L4-5 impossible. On February 15, 2007, Yue opined that a “ ‘two level lumbar dis[c] replacement would give [the plaintiff] the ability to perform clerical and light-to-moderate duty work in the future.’ ” At his deposition, Yue outlined his rationale for performing disc replacement surgery, stating that “ ‘if we can remove that pain generator, there’s a chance we may alleviate some of her pain. She’ll never have a pain free back; it’s not something that I . . . think she will ever achieve because of her other levels of degeneration above, but . . . [if] . . . the replacement functions properly . . . she can expect about 70 to 75 percent relief of her pain . . . .’”

Yue also testified that although the plaintiffs bone density and her cyst might make a fusion the only feasible intervention, he preferred disc replacement. He cited three reasons, including that it tended to “ ‘protect the other levels above or below it from future degeneration at least on a rapid scale.’ ” He testified that he had performed between “ ‘500 or 600’ ” disc replacement surgeries and that although there are significant differences of opinion in the medical community on the effectiveness of disc replacements, he believed that they were statistically superior to fusions. He also testified that although a successful fusion surgery would produce the same chance of relief of symptoms as a disc replacement, a disc replacement would expedite the plaintiffs return to work, which would be delayed six months with a fusion.

It was the plaintiffs position that her condition was getting worse, that her pain was an impediment to her performing daily activities and that she was interested in having the disc replacement surgery. She testified that she could not sit without pain and that she could stand only for fifteen or twenty minutes without pain.

Following an informal hearing, Commissioner Rhoda Loeb directed that the plaintiff should be examined by a commissioner’s examiner. William H. Druckemiller, a neurosurgeon, conducted that examination on November 8, 2006. Druckemiller diagnosed the plaintiff with “ ‘significant degenerative changes at the L4-5 level with a traction spur anteriorly and a suggestion of an early degenerative spondylolisthesis’ ” as well as “ ‘moderate degenerative changes at L2-3.’ ” Drucke-miller did not agree with Yue’s recommendation that the plaintiff should undergo disc replacement surgery. On December 22, 2006, he stated that “ ‘[the plaintiff] is unlikely to get a good, long term result from surgery and that should be avoided at this point in time.’ ” On December 12, 2007, he stated, after examining bone scan and MRI scan results, that “ ‘[t]hese reports if anything confirm my previous opinion that surgery is not a good option for this patient.’ ” He explained his reasoning by stating that “ ‘the patient [was] not a good surgical candidate and [that he] personally would not perform that surgery . . . [because] she has significant, multiple level disease other than the areas noted to be positive on the [MRI] scan and the previous disco-gram.’ ” According to Druckemiller, “ ‘[i]f [the plaintiff] has a two level fusion, she is highly likely to have significant pain early on from an adjacent level syndrome at L3-4 and L2 is already known to be positive on a bone scan.’ ”

At a deposition on April 25, 2007, Druckemiller testified that although single level disc replacement generally has an 80 percent rate of success in improving the patient’s symptoms and that two level disc replacement has a 70 percent rate of success, he did not think surgery would provide the plaintiff with a dramatic difference in the level of pain she was experiencing. Because Druckemiller did not think that the surgery would benefit the plaintiff significantly, he instead suggested that she might benefit from “ ‘a good back strengthening exercise program.’ ”

On the basis of this evidence, the commissioner concluded that the plaintiff was credible and that she was suffering a compensable injury—multilevel degenerative disc disease. He found that Yue had proposed performing either a multilevel or single level disc replacement for the plaintiff, and that Yue had opined that this procedure provided the plaintiff with the best opportunity to return to the workforce. The commissioner also noted that two of the plaintiffs physicians, Connair and Kramer, recommended conservative treatment, as did the defendant’s experts. In reviewing the testimony of Druckemiller, the commissioner concluded that it was Druckemiller’s opinion that disc replacement surgery would not be reasonable or necessary medical treatment.

The commissioner found Drackemiller to be “ ‘fully credible and persuasive,’ ” and did not find Yue “ ‘fully credible and persuasive.’ ” Thus, he concurred with Drackemiller’s view that disc replacement surgery would not yield a long-term benefit to the plaintiff and that it would result in medical problems to adjoining discs. The commissioner found that, at that time, neither two level nor single level disc replacement was “ ‘reasonable and necessary medical treatment,’ ” but suggested that if the plaintiffs condition continued to deteriorate, another commissioner and a different physician should reevaluate the merits of surgery.

Thereafter, the board affirmed the finding of the commissioner. The board’s opinion stated that it was apparent that Drackemiller and Yue utilized different standards for evaluating the efficacy of the proposed surgery and deferred to the commissioner’s decision to give greater weight to the opinion of the commissioner’s examiner, Drackemiller. The board asserted that although a commissioner may choose to approve treatments that have a relatively low percentage of success, that does not establish that, once a minimum threshold is met, the commissioner is obligated to approve surgery. This appeal followed. Additional facts and procedural history will be provided as necessary.

On appeal, the plaintiff claims that the board improperly sustained the commissioner’s finding that her two level disc surgery was not medically reasonable or necessary. The plaintiff also argues that the commissioner failed to apply the proper standard of law to the facts of her case and improperly denied payment of her surgery. We disagree and affirm the decision of the board.

As a threshold matter, we set forth the standard of review applicable to workers’ compensation appeals. The principles that govern our standard of review in workers’ compensation appeals are well established. “The conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Neither the . . . board nor this court has the power to retry facts. It is well established that [although not dispositive, we accord great weight to the construction given to the workers’ compensation statutes by the commissioner and [the] board.” (Citations omitted; internal quotation marks omitted.) Tracy v. Scherwitzky Gutter Co., 279 Conn. 265, 272, 901 A.2d 1176 (2006). “The commissioner has the power and duty, as the trier of fact, to determine the facts.” (Internal quotation marks omitted.) Gartrell v. Dept. of Correction, 259 Conn. 29, 36, 787 A.2d 541 (2002).

It is the exclusive function of the finder of fact to reject or to accept evidence and to believe or to disbelieve any expert testimony. The trier may accept or reject, in whole or in part, the testimony of an expert witness. Tartaglino v. Dept. of Correction, 55 Conn. App. 190, 195, 737 A.2d 993, cert. denied, 251 Conn. 929, 742 A.2d 364 (1999). “Because we are required to afford great deference to the commissioner’s conclusion . . . we must interpret [the commissioner’s finding] with the goal of sustaining that conclusion in light of all of the other supporting evidence. . . . As we have made abundantly clear in the past, it would be improper for the board to disregard the commissioner’s findings and substitute its preference regarding testimony.” (Citation omitted; internal quotation marks omitted.) Id., 196.

Section 31-294d (a) (1) provides: “The employer, as soon as the employer has knowledge of an injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition, shall furnish any medical and surgical aid or hospital and nursing service, including medical rehabilitation services and prescription drugs, as the physician or surgeon deems reasonable or necessary. The employer, any insurer acting on behalf of the employer, or any other entity acting on behalf of the employer or insurer shall be responsible for paying the cost of such prescription drugs directly to the provider.” (Emphasis added.)

Essentially, the plaintiff claims that Yue’s recommendation was sufficient to require a finding that the plaintiffs surgery was medically reasonable or necessary. Nonetheless, the plaintiff fails to acknowledge that the record contains the opinions of numerous physicians who had determined that she was not a good candidate for surgery. Wang suggested lumbar epidural steroid injections. Shine recommended pool therapy and a lumbar support brace. Connair prescribed conservative treatment and determined that the plaintiffs condition was “ ‘not severe enough to warrant surgical intervention.’ ” The plaintiff sought a second opinion from another orthopedist, Kramer, who agreed with Con-nair’s assessment that the plaintiffs condition should be treated conservatively and that she was not a surgical candidate under the circumstances.

The plaintiff visited another orthopedic surgeon, Mar-golis, who noted that “ ‘virtually no form of treatment helps her’ ” and concluded that “ ‘there is absolutely no question in [his] mind that she is not a surgical candidate for any type of procedure.’ ” Novella put her back on medication and traction therapy. The plaintiff was then examined by Strugar, who stated that he “ ‘[could not] clearly recommend surgery for this patient at this point,’ ” and indicated that the plaintiffs requested surgery would be quite difficult. It was not until the plaintiff visited Yue, in 2005, that she found a physician who recommended surgery. After Yue’s recommendation, the commissioner directed that the plaintiff be examined by the commissioner’s examiner, Druckemiller, who agreed with the previously expressed and consistent opinion of the other physicians that the plaintiff was not a good candidate for surgery. Druckemiller testified that he did not think surgery was going to work and that the plaintiff might benefit from “ ‘a good back strengthening exercise program.’ ”

The plaintiff cites Cirrito v. Resource Group Ltd. of Connecticut, No. 4248 CRB-1-00-6 (June 19, 2001), as establishing that if a treatment might help a claimant or is “ ‘worthy of attempt,’ ” then the commissioner is obligated to find that the treatment is medically reasonable or necessary. The plaintiff argues that the commissioner improperly failed to apply this standard in finding the testimony of Druckemiller to be credible and persuasive. On appeal, the board agreed with the commissioner’s interpretation, finding that Cirrito stands for the proposition that although the commissioner has discretion to approve a treatment with a low chance of success, he is not required to approve it simply because a claimant has found a physician who suggests that the particular treatment would be “ ‘worthy of attempt.’ ” The board’s written opinion provides a careful and precise analysis of the Cirrito decision. “Whether a proposed course of treatment is reasonable or necessary is a factual issue to be decided by the trier based on the medical opinions in the record.” Irizarry v. Purolator Courier Corp., No. 4382 CRB-4-01-4 (May 2, 2002). The plaintiff frames the issue by contending that the commissioner improperly adopted Druckemiller’s personal standard of “ ‘reasonable or necessary.’ ” We do not share this view.

“[T]he power and duty to determine the facts rests on the commissioner, who is the trier of fact. . . . This authority to find the facts entitles the commissioner to determine the weight of the evidence presented and the credibility of the testimony offered by lay and expert witnesses. . . . Where the subordinate facts allow for diverse inferences, the commissioner’s selection of the inference to be drawn must stand unless it is based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. . . . Once the commissioner makes a factual finding, [we are] bound by that finding if there is evidence in the record to support it. . . . Our Supreme Court consistently has held that [n] o reviewing court can ... set aside [an inference of the commissioner] because the opposite [inference] is thought to be more reasonable; nor can the opposite inference be substituted by the court because of a belief that the one chosen by the [commissioner] is factually questionable. . . . This standard clearly applies to conflicting expert medical testimony. It [is] the province of the commissioner to accept the evidence which impresses] him as being most credible and more weighty.” (Citation omitted; emphasis in original; internal quotation marks omitted.) Anderson v. R & K Spero Co., 107 Conn. App. 608, 616-17, 946 A.2d 273 (2008).

The board properly concluded that the commissioner’s finding that surgery was not warranted was supported by sufficient evidence in the record. The commissioner based his decision on Druckemiller’s determination, and he was able to draw from the opinions of Connair, Wang, Shine, Kramer, Margolis and Strugar. Restricted by our deferential standard of review, we conclude that the facts are consistent with the commissioner’s finding and that the board properly sustained the commissioner’s finding.

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

In this opinion the other judges concurred.

       Travelers Properly & Casualty Company also was named as a defendant. For convenience, we refer in this opinion to Mory’s Association, Inc., as the defendant.

       The plaintiff attempts to define the “reasonable or necessary” threshold through the board’s case law and law from other jurisdictions. In according great weight to the commissioner’s and the board’s construction of the workers’ compensation statutes, we find that the commissioner’s factual findings, based on the record, are consistent with the language of § 31-294d.


text:
    EQUICREDIT CORPORATION OF CONNECTICUT v. DAVID S. KASPER ET AL.
    (AC 31342)
    Haiper, Alvord and Pellegrino, Js.
    Argued April 14
    officially released June 22, 2010

      Katherine E. Abel, with whom was Gerald L. Garlick, for the appellant (plaintiff).

      Nancy E. Fraser, with whom, on the brief, was Thomas A. Bomer, for the appellees (defendants).
   Opinion

ALVORD, J.

In this action for a declaratory judgment, the plaintiff, Equicredit Corporation of Connecticut, appeals from the summary judgment rendered by the trial court in favor of the defendants, David S. Kasper and Linda M. Kasper. We affirm the judgment of the trial court.

The following facts are undisputed. On April 10,1996, the defendants sold the property located at 116 Orchard Hill Road in Pomfret to John Carpenter. Carpenter financed the purchase of the property with a mortgage given to the plaintiff to secure a $243,750 loan (plaintiffs first mortgage). The plaintiffs first mortgage was duly recorded on December 26, 1996. On March 10, 1997, Carpenter granted the defendants a mortgage to secure a $93,000 loan (defendants’ mortgage). The defendants’ mortgage was duly recorded on March 11, 1997. On September 16, 1998, Carpenter granted the plaintiff another mortgage to secure a $265,000 loan (plaintiffs second mortgage). The plaintiffs second mortgage was duly recorded on the same day. The proceeds of the plaintiffs $265,000 loan were used to pay off and release the plaintiffs first mortgage. This left the defendants’ mortgage in the first priority position and the plaintiffs second mortgage in the second priority position.

On August 14,2006, the plaintiff sought a declaratory judgment pursuant to the doctrine of equitable subrogation that the defendants’ mortgage, duly recorded in 1997, was subsequent and subordinate to the plaintiffs second mortgage, duly recorded in 1998. The plaintiff claimed that although it had actual or constructive notice of the defendants’ mortgage, it never intended to take a subordinate hen. It argued that the proceeds of its $265,000 loan were intended to pay off ah preexisting encumbrances on the property and claimed that its mistake in failing to pay off the defendants’ mortgage entitled it to equitable subrogation. On December 5, 2006, the plaintiff filed a motion for summary judgment. On May 24, 2007, the court, Martin, J., denied the plaintiffs motion. The court found that the plaintiff was not entitled to equitable subrogation where it had knowledge of the defendants’ intervening mortgage and there was no evidence of neglect, fraud, confusion or unfair behavior on the part of the defendants. On December 4, 2007, the defendants filed a motion for summary judgment. On July 8, 2009, the court, Hon. Russell F. Potter, Jr., judge trial referee, granted the defendants’ motion. The court found that the plaintiff was not entitled to equitable subrogation where it was not ignorant of the defendants’ hen, and its mistake in releasing its first mortgage was not based on any fraud by the defendants and did not result in any windfall to the defendants. This appeal followed.

Our review of a decision rendered in equity is limited. “The determination of what equity requires in a particular case ... is a matter for the discretion of the trial court. ... In determining whether the trial court abused its discretion, this court must make every reasonable presumption in favor of [the trial court’s] action. . . . The manner in which [this] discretion is exercised will not be disturbed so long as the court could reasonably conclude as it did.” (Internal quotation marks omitted.) Allstate Ins. Co. v. Palumbo, 109 Conn. App. 731, 736-37, 952 A.2d 1235 (2008), rev’d on other grounds, 296 Conn. 253, 994 A.2d 174 (2010).

“The law relating to the priority of interests has its roots in early Connecticut jurisprudence. A fundamental principle is that a mortgage that is recorded first is entitled to priority over subsequently recorded mortgages provided that every grantee has a reasonable time to get his deed recorded.” Independence One Mortgage Corp. v. Katsaros, 43 Conn. App. 71, 73, 681 A.2d 1005 (1996). The doctrine of equitable subrogation provides an exception to the first in time, first in right rule and “has been applied in certain limited circumstances to rearrange the priorities of parties in a case.” Id. “The object of [equitable] subrogation is the prevention of injustice.” (Internal quotation marks omitted.) Rosenblit v. Williams, 57 Conn. App. 788, 793, 750 A.2d 1131, cert. denied, 254 Conn. 906, 755 A.2d 882 (2000). Where fairness and justice require, “one who advances money to discharge a prior lien on real or personal property and takes a new mortgage as security is entitled to be subrogated to the rights under the prior lien against the holder of an intervening lien of which he was ignorant.” (Internal quotation marks omitted.) Id.

The plaintiff claims that it should be subrogated to the priority position because it intended to secure its $265,000 loan with a first mortgage on the property but mistakenly failed to pay off the defendants’ intervening mortgage with the proceeds. We disagree. “Our Supreme Court has stated that [i]n numerous cases it has been held that one who advances money to discharge a prior lien on real or personal property and takes a new mortgage as security is entitled to be subro-gated to the rights under the prior lien against the holder of an intervening hen of which he was ignorant.” (Internal quotation marks omitted.) Independence One Mortgage Corp. v. Katsaros, supra, 43 Conn. App. 73-74. Moreover, equitable subrogation is not available where it “would work [an] inequity to the defendant.” Home Owners’Loan Corp. v. Sears, Roebuck & Co., 123 Conn. 232, 243, 193 A. 769 (1937).

“Equity always looks to the substance of atransaction and not to mere form.” Connecticut National Bank v. Chapman, 153 Conn. 393, 397, 216 A.2d 814 (1966). The facts of this case do not necessitate an equitable solution. The plaintiff admitted that it had actual or constructive notice of the defendants’ mortgage and was not ignorant of the defendants’ hen.. The court found that the defendants’ conduct was not improper in any way. There was no evidence that the defendants ever intended or agreed to be subordinated to a new encumbrance on the property, and the defendants did not receive an undue advantage as the result of the plaintiffs mistake. Under the circumstances, to subordinate the defendants’ mortgage to the plaintiffs mortgage would be to burden the defendants with the consequences of the plaintiffs mistake, a mistake in which the defendants played no part. The court found that equity did not require such a result, and we conclude that the court did not abuse its discretion. See Lewis v. Hinman, 56 Conn. 55, 66-67, 13 A. 143 (1887) (“[I]t is just and equitable that the [priority lienholder] should have the full benefit of his security. . . . [The party seeking subrogation] stands precisely where he placed himself. The [priority lienholder] has done nothing to his prejudice. If through his ignorance of certain facts [the party seeking subrogation] is in a worse condition than he otherwise would have been [and] the [priority lienholder] is in no wise responsible for it . . . there is no reason for transferring the consequences thereof . . . unless [the priority lienholder] thereby obtains some undue advantage.”).

The judgment is affirmed.

In this opinion the other judges concurred.

       The purchase of the property also was financed with a mortgage given to the defendants to secure a $51,000 loan. The $51,000 mortgage given to the defendants was paid in full and released. It is not at issue in this appeal.

       Both parties agree that no material facts are in dispute, and neither party challenges the propriety of the court’s disposal of the case by summary judgment.

       It is not clear what the plaintiff meant to do. The loan secured by the plaintiffs second mortgage was in the amount of $265,000. This is almost exactly the same amount needed to satisfy the plaintiffs first mortgage, $252,399.54, plus settlement costs, $11,468. If, as it argues, the plaintiff intended to pay off both its first mortgage and the defendants’ mortgage, then, simple math reveals that it lent $80,399.54 too little, and if the plaintiff intended to pay off the defendants’ mortgage and leave its first mortgage intact, then it lent $172,000 too much. Nevertheless, the important point remains that the mistake occurred without any help from the defendants.

       The plaintiff relies on Connecticut National Bank v. Chapman, supra, 153 Conn. 393 (subrogation permitted when failure to do so would result in unjust enrichment of intervening lienholder), and this court’s use of the word “mistake” in Independence One Mortgage Corp. v. Katsaros, supra, 43 Conn. App. 75, to argue that equitable subrogation is nevertheless applicable. Connecticut National Bank is distinguishable on its facts, and we do not read Independence One Mortgage Corp. as a directive to the trial court to absolve every mistake made in connection with the release of a mortgage by equitable subrogation.


author: FLYNN, C. J.

text:
    FRANK FORRESTT ET AL. v. PAUL S. KOCH ET AL.
    (AC 30502)
    Flynn, C. J., and Beach and Pellegrino, Js.

      Argued February 9
    officially released June 22, 2010

      Vincent F. Sabatini, with whom, on the brief, was James V. Sabatini, for the appellants (plaintiffs).

      David W. Carroll, pro hac vice, with whom was Jeffrey F. Buebendorf, for the appellees (defendants).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

FLYNN, C. J.

The plaintiffs, Frank Forrestt and Carolyn Forrestt, appeal following the denial of their motion to set aside the jury verdict rendered in favor of the defendants, Paul S. Koch, an ophthalmologist, and East Lyme Laser Vision Center, LLP. On appeal, the plaintiffs contend that the trial court abused its discretion in failing to set aside the verdict due to the improper remarks of the defendants’ counsel during his closing argument. They also argue that the prejudicial effect of the remarks was manifest in the short length of the jury’s deliberations. We conclude that although the challenged remarks were improper, we lack any transcripts comprising the evidentiary record that would reveal the relative respective strengths and weaknesses of the plaintiffs’ and defendants’ cases. Absent such a record, we cannot determine the extent of any prejudicial effect of the challenged remarks that would warrant a new trial, nor can we determine that the court abused its discretion in denying the plaintiffs’ motion to set aside the verdict. We also reject the argument that any prejudice or manifest injustice is shown by the length of the jury’s deliberations. We therefore affirm the judgment of the trial court.

On August 7, 2006, the plaintiffs filed an amended complaint in which they alleged the following facts. In January, 2003, Forrestt consulted with East Lyme Laser Vision Center, LLP, concerning laser eye surgery. On January 28, 2003, Koch performed laser-assisted in situ keratomileusis, or LASIK, on Forrestt. Following the surgery, the defendants prescribed the plaintiff two medications, Ocuflox and Pred Forte. On February 15, 2003, Forrestt contacted the defendants and informed them that he was experiencing problems with his left eye, which was bloodshot and painful. When Forrestt visited the defendants on February 20, 2003, for a standard postoperative examination, his left eye was swollen shut and the source of severe and constant pain.

The postoperative examination was conducted by a technician employed by the defendants and not by a physician. The technician told Forrestt that “everything would be fine,” instructed him to continue taking the prescribed medication and provided him medication for his pain. Forrestt returned to the defendants’ East Lyme office the following day, where a technician told him to discontinue the use of Pred Forte. The defendants also recommended that Forrestt travel to the defendants’ Rhode Island office the next day for an examination. Upon arriving at the defendants’ Rhode Island office on February 22, 2003, Forrestt was informed that no physician was available to see him. Forrestt told the defendants that he would travel to a nearby hospital to seek treatment if a physician were not available soon. The defendants persuaded Forrestt not to go to the hospital “because the hospital did not know about LASIK.”

One of the defendants’ physicians saw Forrestt and performed a debridement of his left eye. The defendants noted that pus was present in the eye but did not order or perform a culture. The following day, February 23, 2003, Forrestt was in extreme pain, was lacking sleep and was vomiting. The defendants initially told him to return to their Rhode Island office, but eventually Koch was able to examine him in East Lyme. Koch debrided Forrestt’s left eye; he told Forrestt that the eye would be fine and that a culture was not necessary. In addition, Koch prescribed to Forrestt a steroid dose pack and pain medication. Koch examined Forrestt again on February 25, 2003, and told him that he was “ ‘out of the woods.’ ”

The next day, Forrestt sought treatment from Dimitri T. Azar, chief ophthalmologist at the Massachusetts Eye and Ear Infirmary in Boston. Azar diagnosed Forrestt as having a multiple organism corneal ulcer of the left eye with resulting persistent epithelial defect. The plaintiffs thereafter brought a two count complaint alleging that the defendants’ treatment had been negligent. Specifically, the plaintiffs alleged that the defendants had failed to diagnose properly and timely Forrestt’s eye condition; perform a culture of his left eye to determine if he had abacterial infection; discontinue Forrestt’s use of Pred Forte when he exhibited symptoms of bacterial infection; have a licensed ophthalmologist or other physician available to examine Forrestt postoperatively rather than a technician; refer Forrestt to a specialist for treatment of the condition; and perform the LASIK procedure in a sterile environment. The plaintiffs alleged that Forrestt had suffered multiple injuries, including, inter alia, a corneal ulcer, loss of vision, swelling and inflammation of the eye, and physical and mental pain and suffering. They further claimed that as a result of the defendants’ negligence, Forrestt had to undergo multiple eye surgeries and would require still more in the future in an attempt to correct his vision.

The defendants filed an answer in which they denied the material allegations of the complaint and asserted as a special defense that the plaintiffs were negligent in failing to seek immediate and appropriate medical treatment; provide the defendants with all necessary and appropriate information; follow the defendants’ instructions or warnings; and take reasonable and necessary precautions under the circumstances. The case was tried to a jury over a period of two weeks. At the close of their case, and prior to closing arguments, the defendants withdrew their special defense of comparative negligence.

During his closing argument, counsel for the defendants made the following statements, which form the basis of the plaintiffs’ claim on appeal: “The plaintiffs themselves, Mr. Forrestt, made a number of decisions. And I want to make it clear that in talking about the decisions that he made, I’m not being critical. He has a right to make decisions regarding his health, and I am not being critical of the decisions he’s made. But just as I am not being critical of the decisions that he made, I would suggest that he shouldn’t be critical of the decisions, the good, solid decisions that were made by [the defendants]. There’s no need, no reason, no firm ground for him to be critical of the decisions they made. The decisions he made are that he had an absolute right to make. . . .

“He said—Mr. Forrestt said that he would do anything for his health. But one of the things we knew he wouldn’t do for his health is drive forty-five minutes away to see somebody in Warwick. . . . He . . . made decisions not to go to the emergency room when it was recommended to him on at least two occasions, according to [Elena] Young [an employee of the East Lyme Laser Vision Center, LLP]. Again, I’m not criticizing those decisions, but what I am saying is, we all make our own decisions, and there’s no reason why he should attempt to criticize the defendants in the case. . . .

“Don’t forget, there’s a note in that chart for February 21, that same day, that says, patient will not, and not is underlined, go to Warwick to see a doctor. Well, there’s the old saying: you can take a horse to water, but you can’t make him drink. If . . . Young says please go to Warwick, and the patient says no, you can’t force him to. That’s his choice. That’s his choice. As we say, we don’t criticize him for it. We just say, don’t criticize us when you don’t accept certain choices. Don’t criticize us for making a doctor available when you refuse to go to a doctor. Don’t criticize us about not having a doctor when you won’t go to the emergency room.”

Counsel for the plaintiffs neither objected to these comments during the course of the defendants’ closing argument nor moved for a mistrial at any time. In his rebuttal argument, however, counsel for the plaintiffs addressed the statements directly: “The argument’s being made that Mr. Frank Forrestt, the patient, the sick patient, was at fault for what happened to him. He was not at fault. Ladies and gentlemen, it’s not even an issue in this case.

“Now, Her Honor is going to soon instruct you on what the applicable law is in this case, including what the issues are for you, ladies and gentlemen, to decide. And when you hear these instructions, you are not going to hear that there’s any type of issue as to whether or not Mr. Frank Forrestt was at fault for what happened to him. You’re not going to hear it because it’s not an issue. But it’s argued to you anyway. Why? Why are you hearing this? Because you can’t defend what is undefendable, malpractice. To avoid dealing with the facts in the case and the issues in the case, we blame the patient. Deflect your attention on the issues in the case to distract you from doing the right thing. When you don’t have the facts on your side, you argue the law. And when you don’t have the law on your side, you argue the facts. WTien you have neither, you blame the patient. It’s shameful.”

Following closing arguments, the plaintiffs requested a juiy charge to the effect that there was no issue of negligence on the part of Forrestt. In response, the court included in its charge: “Ladies and gentlemen, there is no issue in this case concerning any negligence on the part of Frank Forrestt.” The plaintiffs took no exception to the jury instructions delivered by the court. After deliberating for approximately thirty-five minutes, the jury returned a verdict in favor of the defendants. The court denied the plaintiffs’ motion to set aside the verdict, which alleged that the remarks of the defendants’ counsel during closing argument were improper and prejudiced the plaintiffs. The present appeal followed.

A trial court’s decision on a motion to set aside a verdict entails the exercise of a broad legal discretion that we will not disturb in the absence of clear abuse. Monti v. Wenkert, 287 Conn. 101, 110-11, 947 A.2d 261 (2008). Our Supreme Court has instructed that “[t]he trial court’s refusal to set aside the verdict is entitled to great weight and every reasonable presumption should be indulged in favor of its correctness. . . . This is so because [f]rom the vantage point of the trial bench, a presiding judge can sense the atmosphere of a trial and can apprehend far better than we can, on the printed record, what factors, if any, could have improperly influenced the jury.” (Citations omitted; internal quotation marks omitted.) Skrzypiec v. Noonan, 228 Conn, 1, 10-11, 633 A.2d 716 (1993).

The plaintiffs argue that the court abused its discretion in denying their motion to set aside the verdict. According to the plaintiffs, the defendants withdrew their special defense of comparative negligence prior to closing arguments “because, as raised by the plaintiffs, [the] defendants failed to offer any evidence that alleged [that] negligence on the part of [Forrestt] was the proximate cause of one or more of his injuries.” They contend that the remarks of the defendants’ counsel during closing argument were improper because they injected the legal and factual issue of comparative negligence into the case although the special defense had been withdrawn. They further argue that the remarks appealed to “the emotions, passions and prejudices” of the jury and were made “to divert its attention from [its] duty to decide the case on the evidence.” The plaintiffs maintain that the resulting prejudice caused by the remarks was manifest in the length of time the jury spent deliberating. Pointing to the length of the trial, the complicated nature of the expert testimony adduced and the multiple specifications of negligence that the jury was required to consider, the plaintiffs claim that it was impossible for the jury to complete its deliberations in thirty-five minutes.

“When a verdict should be set aside because of improper remarks of counsel . . . the remedy is a new trial.” Palkimas v. Lavine, 71 Conn. App. 537, 542, 803 A.2d 329, cert. denied, 262 Conn. 919, 812 A.2d 863 (2002). In seeking a new trial on this ground, a party’s burden of proof is twofold. First, it must demonstrate that the challenged remarks in fact were improper. Then, the party must show that the improprieties during argument warrant a new trial. Id., 546. The remedy of a new trial is appropriate in circumstances in which the improper comments of counsel caused “manifest injury to a litigant . . . .” (Internal quotation marks omitted.) Murray v. Taylor, 65 Conn. App. 300, 306, 782 A.2d 702, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001).

We first address whether the challenged remarks were improper. It is crucial to such an analysis to note that the defendants had withdrawn their comparative negligence defense. General Statutes §§ 52-572h (b) and 52-114 and Practice Book § 10-53 are pertinent provisions of law that provide the background for the remarks of the defendants’ counsel during closing argument. Section 52-572h (b) provides in relevant part: “In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person ... to recover damages resulting from personal injury, wrongful death or damage to property if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought including settled or released persons under subsection (n) of this section. . . .” Section 52-114 requires 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 or defendants, and the burden of proving such contributory negligence shall rest upon the defendant or defendants.” Practice Book § 10-53 similarly provides: “If contributory negligence is relied upon as a defense, it shall be affirmatively pleaded by the defendant and the defendant shall specify the negligent acts or omissions on which the defendant relies.”

Our Supreme Court has recognized that “[t]he central purpose of [§ 52-572h] was to replace the harsh rule that contributory negligence was a complete defense in negligence cases with the rule that contributory negligence merely operates to diminish the amount recovered as damages in proportion to the percentage of negligence attributable to the person recovering.” Gomeau v. Forrest, 176 Conn. 523, 525, 409 A.2d 1006 (1979). “When the legislature first enacted § 52-572h, abrogating the absolute bar of contributory negligence in favor of the doctrine of comparative negligence, that statutory abrogation applied only to injury to persons or damage to property arising out of the ownership, maintenance or use of a private passenger motor vehicle. . . . Public Acts 1972, No. 273, § 6. In 1973, the legislature broadened the comparative negligence doctrine to include negligence claims outside of the automobile no-fault system. . . . The purpose of comparative negligence is to ameliorate the harshness of the complete bar to liability resulting from the common law defense of contributory negligence. W. Pro-sser, Torts (4th Ed. 1971) § 67. This change in policy was accomplished by mandating a comparison by the fact finder of the relative degrees of negligence of the plaintiff and the defendant. [Section] 52-572h (b) provides that contributory negligence shall not bar recovery in an action by any person ... to recover damages resulting from personal injury [or damage to property] ... if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought .... The purpose of the comparative negligence statute was to replace the former rule, under which contributory negligence acted as a complete defense, with a rule under which contributory negligence would operate merely to diminish recovery of damages based upon the degree of the plaintiffs own negligence. ” (Citation omitted; internal quotation marks omitted.) Sevigny v. Dibble Hollow Condominium Assn., Inc., 76 Conn. App. 306, 326-27, 819 A.2d 844 (2003), quoting Williams Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 585-86, 657 A.2d 212 (1995).

We agree with the plaintiffs that the remarks of the defendants’ counsel during closing argument were improper. The defendants had withdrawn their comparative negligence defense that would have permitted the jury to consider the relative contributory negligence of the parties and determine whether the plaintiffs’ recovery should be either barred or diminished in the case. Despite the repeated assurances by the defendants’ counsel that he was “not being critical” of Forrestt and that he was “not criticizing [Forrestt’s] decisions” made during his treatment by the defendants, the remarks of the defendants’ counsel clearly invited the jury to consider Forrestt’s actions as negligent and as a potentially causative factor in his injuries that should excuse his own clients from criticism. Under their pleaded special defense of comparative negligence, the defendants were afforded the opportunity to adduce evidence in proof of their allegation that Forrestt was negligent for, inter alia, failing to follow the instructions and warnings of the defendants and failing to take reasonable precautions under the circumstances. At the close of their case, and prior to argument, however, the defendants withdrew the special defense. The repeated remarks of the defendants’ counsel concerning Forrestt’s decisions, therefore, allowed the defendants to insinuate Forrestt’s negligence after having been relieved of the burden of proving as much by a preponderance of the evidence.

Although we cannot countenance the remarks of the defendants’ counsel under the circumstances of this case, neither can we conclude that the plaintiffs are entitled to a new trial as a result. Counsel for the plaintiffs did not object to the remarks during the closing argument of the defendants’ counsel, and he at no time moved for a mistrial. He took the opportunity, instead, to address the remarks directly and somewhat forcefully in his rebuttal argument. Further, the plaintiffs’ counsel later requested and was granted a curative jury instruction stating clearly and plainly that there was no issue concerning Forrestt’s negligence for the jury to decide. No objection was raised to the jury instructions, including the curative instruction, provided by the court.

The plaintiffs’ sole argument to support their claim that the remarks of the defendants’ counsel caused them manifest injury is the fact that the jury deliberated for only thirty-five minutes following the presentation of evidence over two weeks. However, the time a jury spends in deliberation cannot form the basis of a claim that its verdict was affected by improper influences. As we previously have stated, “[t]he length of time that a jury deliberates has no bearing on nor does it directly correlate to the strength or correctness of its conclusions or the validity of its verdict. In fact, the length of time of the jury’s deliberations is a double-edged sword. A short deliberation, rather than being indicative of a lack of diligence, may in fact attest to the strength of the [prevailing party’s] case.” (Internal quotation marks omitted.) Baldwin v. Jablecki, 52 Conn. App. 379, 384, 726 A.2d 1164 (1999).

Finally, we note that in addition to the preceding, the record on appeal does not allow us to investigate more deeply any prejudice that the remarks by the defendants’ counsel may have caused. The record before us consists of the pleadings, exhibits and transcripts of the parties’ closing arguments and the court’s jury instructions. It contains no transcripts of any testimony during trial. Such a record does not allow a proper evaluation of the relative strengths of the plaintiffs’ and the defendants’ cases or the possible effect that the challenged remarks during closing argument may have had. We certainly are mindful of the dilemma encountered by the plaintiffs’ counsel in this case, who was faced with the burden of the expense of producing a lengthy trial transcript on appeal. However, this considerable burden of expense does not relieve an appellant of his obligation to provide this court with an adequate record from which to decide the issues on appeal. See Practice Book § 61-10.

The trial court, having heard all the testimony in the case, “was in the best position to assess the possible prejudice, if any, that may have resulted from counsel’s comments, and to fashion an appropriate remedy from a range of possible alternatives.” Rizzo Pool Co. v. Del Grosso, 232 Conn. 666, 687, 657 A.2d 1087 (1995). Having thoroughly reviewed the record and the arguments of the parties on appeal, we cannot conclude that the court abused its discretion in denying the plaintiffs’ motion to set aside the verdict.

The judgment is affirmed.

In this opinion the other judges concurred.

       For the purposes of this opinion, we refer to Frank Forrestt and Carolyn Forrestt collectively as the plaintiffs and to Frank Forrestt individually as Forrestt.

       Count one of the complaint sounded in negligence. Count two stated a claim for loss of consortium.

       A mistrial, if granted, might have required the plaintiffs to bear the expense of retrial; however, a party to a case cannot wait until after a verdict is rendered to raise issues that the trial court, if alerted to them, might have reached and remedied by some further action during trial.


text:
    ALANVINE v. PLANNING AND ZONING COMMISSION OF THE TOWN OF WALLINGFORD ET AL.
    (AC 30921)
    Bishop, Gruendel and Pellegrino, Js.

      Argued March 17
    officially released June 22, 2010

      Vincent T. McManus, Jr., for the appellant (plaintiff).

      Janis M. Small, town attorney, for the appellee (named defendant).

      Elias A. Alexiades, for the appellee (defendant Ilia Athan).
   Opinion

PELLEGRINO, J.

The plaintiff, Alan Vine, appeals from the judgment of the trial court dismissing his appeal from the approval of a site plan by the defendant planning and zoning commission of the town of Wall-ingford (zoning commission). The plaintiff claims that the zoning commission acted illegally, arbitrarily and in abuse of its discretion by failing to comply with the requirements of General Statutes (Rev. to 2007) § 8-3 (g) when it approved the site plan. We disagree and affirm the judgment of the trial court.

The following facts are relevant to the plaintiffs appeal. On February 5, 2007, the codefendant in this matter, Ilia Athan (applicant), filed an application for site plan approval to construct a commercial kennel and a dwelling house on property located at 86 South Branford Road in Wallingford. This property is located in a rural residential district (RU-120 zone) and contains 6.25 acres. The property contains approximately two acres of wetlands and watercourses, and, thus, the application required review not only by the zoning commission, but also by the inland wetlands and watercourse commission (wetlands commission).

Pursuant to the town’s zoning regulations, construction of a commercial kennel in an RU-120 zone requires at least five acres of property. Construction of a residence in an RU-120 zone requires at least three acres of property. The administrative record reflected a dispute as to whether the proposed lot was sufficient in size to support the construction of both a commercial kennel and dwelling house. On April 9, 2007, the town attorney ruled that the zoning regulations would require a lot size of eight acres to support both requested uses, and the applicant requested additional time to consult with his attorney. The matter was continued to June 11, 2007.

During the period of time after the continuance was granted, the wetlands commission approved the applicant’s site plan to construct a commercial kennel and dwelling house on the property. On June 8, 2007, three days before the applicant’s hearing before the zoning commission, he diminished the scope of the project by withdrawing the request to construct a dwelling house on the lot. As amended, the applicant sought approval for only construction of the commercial kennel. On June 11,2007, at the zoning commission’s public hearing on the application, the plaintiff objected to the site plan, citing concerns that the kennel would create noise, change the rural character of the area and have an adverse effect on property values. The plaintiff also argued that the application should be referred back to the wetlands commission because the applicant had substantially modified the proposed application by removing his request to build a dwelling house on the property.

After the hearing, the zoning commission met and voted to approve the site plan application for the kennel. The town planner advised the zoning commission on the record that it was not necessary to resubmit the revised plan to the wetlands commission. Nonetheless, a condition of the zoning commission’s approval was that the applicant must submit a revised plan eliminating and removing all references to the dwelling house. The plaintiff, thereafter, filed an appeal in the Superior Court, naming the applicant and the zoning commission as defendants. On December 23, 2008, the court issued its memorandum of decision dismissing the plaintiffs appeal. This appeal followed. Additional facts and procedural history will be provided as necessary.

On appeal, the plaintiff argues that the applicant substantially changed the site plan application and that the new application was never resubmitted to the wetlands commission, as is required pursuant to § 8-3 (g). We disagree.

Before turning to the specific claim at issue, we note that review of a zoning agency’s decision is governed by certain well established standards. “It is axiomatic that the review of site plan applications is an administrative function of a planning and zoning commission. . . . When a commission is functioning in such an administrative capacity, a reviewing court’s standard of review of the commission’s action is limited to whether it was illegal, arbitrary or in abuse of [its] discretion ....

“In reviewing a decision of a zoning board, a reviewing court is bound by the substantial evidence rule, according to which, [conclusions reached by [the board] must be upheld by the trial court if they are reasonably supported by the record. The credibility of the witnesses and the determination of issues of fact are matters solely within the province of the [board]. . . . The question is not whether the trial court would have reached the same conclusion, but whether the record before the [board] supports the decision reached. ... If a trial court finds that there is substantial evidence to support a zoning board’s findings, it cannot substitute its judgment for that of the board. ... If there is conflicting evidence in support of the zoning commission’s stated rationale, the reviewing court . . . cannot substitute its judgment as to the weight of the evidence for that of the commission. . . . The agency’s decision must be sustained if an examination of the record discloses evidence that supports any one of the reasons given.” (Citations omitted; internal quotation marks omitted.) Loving v. Planning & Zoning Commission, 287 Conn. 746, 756-57, 950 A.2d 494 (2008).

Section 8-3 (g), which pertains to site plan applications, provides in relevant part: “The decision of the zoning commission shall not be rendered on the site plan application until the inland wetlands agency has submitted a report with its final decision. In making its decision the zoning commission shall give due consideration to the report of the inland wetlands agency. ...” General Statutes (Rev. to 2007) § 8-3 (g).

This court has addressed the issue of due consideration. “The zoning commission must give the wetlands commission report due consideration. We do not read this as a statutoiy mandate that the zoning commission’s decision be based on the wetlands report. To afford due consideration is to ‘give such weight or significance to a particular factor as under the circumstances it seems to merit, and this involves discretion.’ Black’s Law Dictionary (5th Ed. [1979]). It entails ‘giving such thought or weight to a fact as it merits under all the circumstances of the case.’ Ballentine’s Law Dictionary (3d Ed. [1969]). There is no question that the term due consideration requires the zoning commission to do more than simply receive the wetlands report and give it passing notice. The weight or significance to be accorded that report by the zoning commission depends, however, on the application before it; how much weight the report should be given is a matter of discretion for the commission.” Arway v. Bloom, 29 Conn. App. 469, 479-80, 615 A.2d 1075 (1992), appeal dismissed, 227 Conn. 799, 633 A.2d 281 (1993).

The court, in its thoughtful and thorough memorandum of decision, found that the sole difference between the plans approved by the wetlands commission and the zoning commission was the elimination of the dwelling house. The kennel remained in precisely the same location on the lot as it was in the application that was considered and approved by the wetlands commission. The applicant was required to file a revised site plan that removed all reference to the dwelling house, and the transcript of the public hearing demonstrates that the zoning commission specifically sought and received information concerning the actions of the wetlands commission. The town planner, when questioned regarding his decision not to forward the modified plan to the town’s environmental planner, stated that “if you look at the plans, the area that’s being changed is nowhere near the wetlands or the wetlands buffer. And, normally, when you do less, you don’t need a permit. . . . [I]f they were doing more, they would have to go back to [the wetlands commission]. That’s why, after this came in on Friday, I never gave it to the [environmental [planner because it’s less impact rather than more impact.” See Irwin v. Planning & Zoning Commission, 45 Conn. App. 89, 92 n.4, 694 A.2d 809 (1997) (zoning commission does not need approval from conservation commission where modified application identical with respect to effect on parcel’s wetlands), rev’d on other grounds, 244 Conn. 619, 711 A.2d 675 (1998).

The plaintiff maintains that the zoning commission failed to give due consideration to the wetlands commission’s approval by failing to submit the modified application for review by the wetlands enforcement officer. The plaintiff disputes the town planner’s assessment that removing a dwelling from a site plan would not require additional approval from the wetlands commission. Essentially, he advocates that we conclude that § 8-3 (g) requires that a zoning commission notify the corresponding wetlands commission of all changes and receive secondary approval from the wetlands commission before approving a modified site plan. Such a procedural mandate is not supported by the plain language of § 8-3 (g), nor is there legal authority to support this proposition.

As this court has stated regarding the requirement that the zoning commission give due consideration to the report produced by the wetlands commission, “it was not intended to make those decisions interdependent. When the zoning commission receives a copy of the report prepared by the wetlands commission, it is not required to review (or await judicial review of) the validity or invalidity of that commission’s final decision as a precursor to rendering its own decision. This construction of the term final decision is consistent with the function that the wetlands report was intended to serve. . . . The final decision contained in the wetlands report is merely one of the many factors the zoning commission must consider in rendering its own decision, within its own relevant time limits.” (Citations omitted; internal quotation marks omitted.) Arway v. Bloom, supra, 29 Conn. App. 479.

The wetlands and zoning commissions have independent roles to play in the approval process. After our careful review of the briefs and the record before us, we conclude that the determination reached by the zoning commission is reasonably supported by the record. The record reflects that the zoning commission discussed the wetlands commission’s prior approval and determined that removing the dwelling house from the site plan would not affect the property’s wetlands. Accordingly, the zoning commission gave due consideration to the wetlands commission report, as is required by § 8-3 (g), and the court properly dismissed the plaintiffs appeal.

The judgment is affirmed.

In this opinion the other judges concurred.

       General Statutes (Rev. to 2007) § 8-3 (g) provides in relevant part: “The zoning regulations may require that a site plan be filed with the commission or other municipal agency or official to aid in determining the conformity of a proposed building, use or structure with specific provisions of such regulations. . . . The decision of the zoning commission shall not be rendered on the site plan application until the inland wetlands agency has submitted a report with its final decision. In making its decision the zoning commission shall give due consideration to the report of the inland wetlands agency. A site plan may be modified or denied only if it fails to comply with requirements already set forth in the zoning or inland wetlands regulations. Approval of a site plan shall be presumed unless a decision to deny or modify it is rendered within the period specified in section 8-7d. . . . The provisions of this subsection shall apply to all zoning commissions or other final zoning authority of each municipality whether or not such municipality has adopted the provisions of this chapter or the charter of such municipality or special act establishing zoning in the municipality contains similar provisions.”

       The plaintiff suggests that in Irwin, this court approved a procedure in which, even if a wetlands impact does not change, the zoning commission must at least notify the corresponding conservation or wetlands commission of the proposed site plan modification. We disagree with the plaintiffs interpretation that our decision in Irwin would essentially require a zoning commission to notify the wetlands or conservation commission of all site plan modifications.


text:
    PATRICIA GIACALONE v. HOUSING AUTHORITY OF THE TOWN OF WALLINGFORD
    (AC 30777)
    Flynn, C. J., and Bishop and Robinson, Js

    Argued January 13
    officially released June 22, 2010

      Marc J. Ubaldi, for the appellant (plaintiff).

      Michael F. O’Connor, with whom, on the brief, was Scott R. Ouellette, for the appellee (defendant).

       The listing of judges reflects their seniority status on this court as of the date of oral argument.

   Opinion

FLYNN, C. J.

The plaintiff, Patricia Giacalone, appeals from the judgment of the trial court, rendered after it struck her negligence complaint in its entirety, in favor of the defendant, the housing authority of the town of Wallingford. On appeal, the plaintiff claims that the court incorrectly concluded that she did not have a viable cause of action in negligence against the defendant landlord because it was not the owner or keeper of the dog that bit her. In light of our Supreme Court’s decision in Auster v. Norwalk United Methodist Church, 286 Conn. 152, 943 A.2d 391 (2008), we conclude, on limited grounds that parallel Auster, that a common-law negligence claim brought against a landlord in a dog bite case should not be stricken as insufficient merely because the landlord was not alleged to be the owner or keeper of the dog. Accordingly, we reverse the judgment of the trial court.

The plaintiff pleaded the following facts, which, for purposes of assessing the propriety of the court’s granting of the motion of strike, we must accept as true. See Craig v. Driscoll, 64 Conn. App. 699, 702, 781 A.2d 440 (2001), aff'd, 262 Conn. 312, 813 A.2d 1003 (2003). The plaintiff was a tenant of the defendant, and she resided at 44 Louis Circle. Elizabeth Lopes and Edson Lopes also were tenants of the defendant, residing at 14 Temper Drive. The Lopeses had a lease with the defendant that prohibited them from having dogs unless the defendant specifically gave them permission. Without the defendant’s permission, despite the prohibition in their lease, the Lopeses had a pit bull dog named Gemini. The defendant knew of Gemini’s existence on the premises and that Gemini was a dangerous and aggressive dog. In or before 2005, the defendant had ordered, in writing, that the Lopeses remove Gemini from their rental unit, but the defendant never followed up on its written order. On July 18, 2007, the plaintiff was bitten by Gemini at or near 14 Temper Drive, and she sustained injuries to her left hand and left leg, including scarring. The plaintiff also suffered emotional injuries and financial harm, including medical expenses, impaired earning capacity and impairment of daily activities and enjoyment of life.

On April 9, 2008, the plaintiff filed a single count complaint alleging common-law negligence against the defendant landlord. On May 14, 2008, the defendant filed a motion to strike the complaint on the ground that it was “legally insufficient because it fail[ed] to plead the necessary elements for a cause of action of common law negligence for a dog bite.” Specifically, the defendant claimed that there was no cause of action for negligence against a landlord for a dog bite incident when the landlord did not own or keep the dog. Although the court recognized that in Auster v. Norwalk United Methodist Church, supra, 286 Conn. 152, our Supreme Court implied that such a cause of action might be viable against a landlord who was not the owner or keeper of the dog, the trial court granted the defendant’s motion to strike, concluding that Auster was limited to its facts. This appeal followed.

On appeal, the plaintiff claims that the court improperly granted the defendant’s motion to strike. She argues that the landlord here may be held hable for negligence because the case is similar to a premises liability case, where the landlord has control of the property and knows of a dangerous condition thereon, but fails to correct it. The defendant argues that the court properly granted its motion to strike because the complaint did not allege that the landlord had “control or dominion over the subject dog, Gemini.” We conclude that the court improperly granted the motion to strike.

“The standard of review in an appeal from the granting of a motion to strike is well established. Because a motion to strike challenges the legal sufficiency of a pleading and, consequently, requires no factual findings by the trial court, our review ... is plenary. . . . We take the facts to be those alleged in the complaint that has been stricken and we construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . Thus, [i]f facts provable in the complaint would support a cause of action, the motion to strike must be denied. ... [A] motion to strike is essentially a procedural motion that focuses solely on the pleadings. ... It is, therefore, improper for the court to consider material outside of the pleading that is being challenged by the motion.” (Citation omitted; internal quotation marks omitted.) Dlugokecki v. Vieira, 98 Conn. App. 252, 256, 907 A.2d 1269, cert. denied, 280 Conn. 951, 912 A.2d 483 (2006).

In Auster v. Norwalk United Methodist Church, supra, 286 Conn. 154-55, the plaintiff had filed a statutory negligence claim under the dog bite statute, General Statutes § 22-357, as well as a common-law negligence action against the defendant church. The defendant’s property consisted of a church building, a parish house and an education building. Id., 154. Pedro Salinas was a church employee who lived in an apartment in the parish house. Id. Salinas owned a mixed breed pit bull dog that, several years earlier, had attacked another church employee. Id. Because of that attack, the church ordered Salinas to keep the dog chained in a stairwell and to not let it roam free. Id., 154r-55. When the plaintiff arrived at the parish house for a meeting, the front door was locked, so she went around the back and into the stairwell leading to Salinas’ apartment where she encountered the dog. Id., 155. The dog bit the plaintiff. Id.

After a trial, the jury found in favor of the plaintiff on her statutory negligence claim and, on that basis, in accordance with the instructions of the court, did not consider the common-law negligence claim. Id., 155. On appeal, the Appellate Court reversed the judgment of the trial court on the ground that the church was not the owner or keeper of the dog and, therefore, it could not be liable under § 22-357. Auster v. Norwalk United Methodist Church, 94 Conn. App. 617, 623, 624, 894 A.2d 329 (2006), aff'd, 286 Conn. 152, 943 A.2d 391 (2008). The Appellate Court then remanded the case for a new trial on the second count, a common-law negligence claim, without any discussion as to the viability of such a claim. Id., 624. After granting the plaintiffs petition for certification to appeal from the Appellate Court judgment, the Supreme Court affirmed that decision, and it specifically held: “Accordingly, we agree with the Appellate Court that the plaintiff failed to establish that the defendant was a keeper of the dog. This is not to say, of coruse, that the defendant may not have been negligent in failing to take reasonable precautions to protect against the attack that occurred in the present case, particularly in view of the fact that Salinas’ dog previously had bitten a church employee. We conclude only that the evidence was insufficient to hold the defendant strictly liable to the plaintiff as a keeper of the dog under § 22-357. On retrial, the plaintiff will have the opportunity to establish her common-law negligence claim against the defendant.” Auster v. Norwalk United Methodist Church, supra, 286 Conn. 164-65.

A number of other jurisdictions also have considered whether to permit a common-law cause of action in a dog bite case against a landlord who is not the owner or keeper of the dog. See annot., “Landlord’s Liability to Third Person for Injury Resulting From Attack on Leased Premises by Dangerous or Vicious Animal Kept by Tenant,” 87 A.L.R.4th 1004 (1991). These jurisdictions, more often than not, have recognized such a cause of action against the landlord. See id. Several states having strict liability dog bite statutes for claims against the owner or keeper of a dog also have permitted an injured party to sue the landlord under a common-law negligence theory when the landlord did not own or keep the dog. See, e.g., Gentle v. Pine Valley Apartments, 631 So. 2d 928 (Ala. 1994); Noble v. Yorke, 490 So. 2d 29 (Fla. 1986); Fouts v. Mason, 592 N.W.2d 33 (Iowa 1999); Nutt v. Florio, 75 Mass. App. 482, 914 N.E.2d 963, review denied sub nom. Nutt v. Keane, 455 Mass. 1106, 918 N.E.2d 91 (2009). In light of our Supreme Court’s decision in Auster, we conclude that such a cause of action also may be viable in Connecticut.

Although the court in the present case concluded that Auster was limited to its facts, we can discern no such limitation in its language. We recognize that the court here was faced with years of common law in which such a cause of action properly could not be maintained, and, on this basis, it read Auster very narrowly. We are aware of no Connecticut appellate case law prior to Auster that recognized a cause of action against a landlord in such a circumstance. We conclude, however, that our Supreme Court opened the door in Auster and that it did not set forth such a narrow ruling. In Auster, our Supreme Court remanded the case for a new trial to give the plaintiff “the opportunity to establish her common-law negligence claim against the defendant.” Auster v. Norwalk United Methodist Church, supra, 286 Conn. 165. If such an action would not lie as a matter of law, we can discern no reason why the court would have remanded for a new trial on that claim. Accordingly, we conclude that the court in this case improperly granted the defendant’s motion to strike.

The judgment is reversed and the case is remanded for further proceedings according to law.

In this opinion the other judges concurred.

       General Statutes § 22-357 provides: “If any dog does any damage to either the body or property of any person, the owner or keeper, or, if the owner or keeper is a minor, the parent or guardian of such minor, shall be liable for such damage, except when such damage has been occasioned to the body or property of a person who, at the time such damage was sustained, was committing a trespass or other tort, or was teasing, tormenting or abusing such dog. If a minor, on whose behalf an action under this section is brought, was under seven years of age at the time the damage was done, it shall be presumed that such minor was not committing a trespass or other tort, or teasing, tormenting or abusing such dog, and the burden of proof thereof shall be upon the defendant in such action.”