author: PETERS, J. BERDON, J., with whom, KATZ, J.,

text:
    ROHAN RUDDOCK ET AL. v. DONNETTE BURROWES ET AL.
    (SC 15584)
    Callahan, C. J., and Berdon, Norcott, Katz and Peters, Js.
    Argued September 24, 1997
    officially released January 27, 1998

      Henry D. Marcus, for the appellants (plaintiffs).

      Deborah L. Bradley, for the appellees (defendants).
   Opinion

PETERS, J.

The accidental failure of suit statute, General Statutes § 52-592 (a) affords a plaintiff a one year window of opportunity to “commence a new action . . . for the same cause” if a prior action “has failed ... to be tried on its merits ... for any matter of form . . . .” The question in this certified appeal is whether a disciplinary dismissal properly may be characterized as a dismissal as a “matter of form.” We conclude that the answer to this question depends upon the nature and the extent of the conduct that led to the disciplinary dismissal.

In their original action, as in the present one, the plaintiffs, Rohan Ruddock and his mother, sought to recover damages for personal injuries sustained by the named plaintiff, allegedly as a result of the defendants’ negligence or recklessness. The trial court, Hon. Harry N. Jackaway, judge trial referee, acting pursuant to Practice Book § 251, terminated the plaintiffs’ action by a disciplinary dismissal arising out of the failure of the named plaintiffs mother and the plaintiffs’ attorney to attend a scheduled pretrial conference.

The plaintiffs filed a motion for reconsideration and recusal. They did not contest the fact of nonattendance at the pretrial conference. Instead, they claimed that: (1) their attorney had been unable to appear in timely fashion because of an unavoidable accident involving his car; and (2) he had tried to communicate his unavoidable delay to court personnel. Denying the plaintiffs’ motion, the court exercised the discretion conferred upon it by General Statutes § 52-212 (a) and reaffirmed the judgment of dismissal. The plaintiffs acknowledge that, regardless of whether their absence resulted from mistake, inadvertence or excusable neglect, the judgment of dismissal in the original action was a disciplinary dismissal.

Thereafter, pursuant to § 52-592 (a), the plaintiffs filed a new complaint alleging the same cause of action. In response, the defendants filed a motion for summary judgment, in which they claimed that the plaintiffs’ action was time barred because § 52-592 (a) does not permit a new action if the original action was terminated as the result of a disciplinary dismissal. In opposition to the defendants’ motion, the plaintiffs not only challenged its legal premise but also filed an affidavit raising again the factual issue of mistake, inadvertence or excusable neglect that they had raised in their motion for reconsideration.

The court, Arena, J., granted the defendants’ motion for summary judgment, upholding their claim that, as a matter of law, the dismissal of the plaintiffs’ original cause of action for disciplinary reasons precluded their subsequent invocation of § 52-592 (a). The court reasoned that any other ruling would “frustrate the reasoned dismissal by Judge Jackaway, and [would] permit counsel to ignore the orders of the court by virtue of an overextension of [the statute].” In light of this conclusion of law, the court made no reference in its memorandum of decision to the factual issues raised by the plaintiffs’ affidavit. Thereafter, in response to the defendants’ motion for clarification, the court ruled that it was immaterial whether the original dismissal had been based “on the plaintiff[s]’ failure to appear at one or more than one pretrial.”

In a per curiam opinion, the Appellate Court affirmed the judgment of the trial court. Ruddock v. Burrowes, 43 Conn. App. 913, 684 A.2d 282 (1996). In the absence of any indication in the record to the contrary, we may presume that the Appellate Court adopted the reasoning of the trial court, Arena, J. Having granted the plaintiffs’ petition for certification, we reverse the judgment of the Appellate Court and direct a remand to the trial court for further proceedings.

The procedural posture of this case determines the scope of our review. The court, Arena, J., in ruling on the motion for summary judgment, concluded, as a matter of law, that, because of the disciplinary nature of the dismissal, the plaintiffs had failed to meet their burden of establishing that they were entitled to invoke § 52-592 (a). Unless we affirm this legal conclusion, the unresolved factual issues raised by the plaintiffs’ affidavit require us to overturn the summary judgment. “Practice Book § 384 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact. Practice Book § 381.” (Citations omitted; internal quotation marks omitted.) Doty v. Mucci, 238 Conn. 800, 805-806, 679 A.2d 945 (1996); Bruttomesso v. Northeastern Connecticut Sexual Assault Crisis Services, Inc., 242 Conn. 1, 5-6, 698 A.2d 795 (1997); Miller v. United Technologies Corp., 233 Conn. 732, 744-45, 660 A.2d 810 (1995); Suarez v. Dickmont Plastics Corp., 229 Conn. 99, 105-106, 639 A.2d 507 (1994).

The arguments of the parties in this court do not fully reflect the law governing summary judgments. Understandably, the defendants reiterate the argument, on which they prevailed in the trial court, that disciplinary dismissals are never “a matter of form” for the purposes of § 52-592 (a). They do not address the factual issues raised by the plaintiffs’ affidavit. The plaintiffs, in turn, argue for a more nuanced consideration of the underlying circumstances of the disciplinary dismissal. Their argument appears to assume, however, that, without any findings of fact, we should accept the accuracy of the representations contained in their affidavits to Judge Jackaway and Judge Arena. Neither argument is persuasive.

Whether § 52-592 (a) categorically excludes disciplinary dismissals from the class of dismissals that properly may be characterized as arising from “any matter of form” is a question that lies at the intersection of two principles firmly established in our law. On the one hand, in a long line of cases, we have held that § 52-592 (a) is remedial in nature and, therefore, warrants a broad construction. See, e.g., Lacasse v. Burns, 214 Conn. 464, 470, 572 A.2d 357 (1990); Isaac v. Mount Sinai Hospital, 210 Conn. 721, 728, 557 A.2d 116 (1989); Broderick v. Jackman, 167 Conn. 96, 97, 355 A.2d 234 (1974); Ross Realty Corp. v. Surkis, 163 Conn. 388, 393, 311 A.2d 74 (1972); Baker v. Baningoso, 134 Conn. 382, 387, 58 A.2d 5 (1948); Johnston v. Sikes, 56 Conn. 589, 591-92 (Superior Court 1888). Apparently acceding in our assessment of its intent, the legislature, over the year's, repeatedly has broadened eligibility for the relief afforded by the statute. Broderick v. Jackman, supra, 97-99. On the other hand, our decisions also have underscored the importance of trial court caseflow management of crowded dockets. “Caseflow management is based upon the premise that it is the responsibility of the court to establish standards for the processing of cases and also, when necessary, to enforce compliance with such standards. Our judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system.” In re Mongillo, 190 Conn. 686, 691, 461 A.2d 1387 (1983); Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 32-33, 474 A.2d 787 (1984). In the event of noncompliance with a court order, the directives of caseflow management authorize trial courts, in appropriate circumstances, to take action against either the errant attorney or the litigant who freely chose the attorney. Link v. Wabash R. Co., 370 U.S. 626, 633-34, 634 n.10, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962); Gionfrido v. Wharf Realty, Inc., supra, 33-34; Thode v. Thode, 190 Conn. 694, 698, 462 A.2d 4 (1983); In re Mongillo, supra, 692; Stanley v. Hartford, 140 Conn. 643, 648, 103 A.2d 147 (1954).

This case requires us, for the first time, to find the proper accommodation between these competing principles. In the absence of further legislative guidance, we conclude that disciplinary dismissals are not excluded categorically from the relief afforded by § 52-592 (a).

We already have observed that, in appropriate cases, “a dismissal entered pursuant to [Practice Book] § 251 would not bar a subsequent action brought under the authority of § 52-592.” Lacasse v. Burns, supra, 214 Conn. 471; Gionfrido v. Wharf Realty, Inc., supra, 193 Conn. 34 n.6. Disciplinary dismissals do not, in all cases, demonstrate the occurrence of misconduct so egregious as to bar recourse to § 52-592. Cf. Skibeck v. Avon, 24 Conn. App. 239, 242-43, 587 A.2d 166, cert. denied, 219 Conn. 912, 593 A.2d 138 (1991). Whether the statute applies cannot be decided in a factual vacuum. To enable a plaintiff to meet the burden of establishing the right to avail himself or herself of the statute, a plaintiff must be afforded an opportunity to make a factual showing that the prior dismissal was a “matter of form” in the sense that the plaintiffs noncompliance with a court order occurred in circumstances such as mistake, inadvertence or excusable neglect. See General Statutes § 52-212.

The burden of bringing anew action sufficiently vindicates the demands of caseflow management. “ ‘[I]t cannot be said that a disciplinary dismissal that does not preclude a litigant from commencing another action on the same claim is wholly ineffective as a sanction, since additional legal fees and expenses must be incurred in doing so and the new suit must normally await the disposition of earlier cases.’ ” Lacasse v. Bums, supra, 214 Conn. 474, quoting Milgrim v. Deluca, 195 Conn. 191, 195, 487 A.2d 522 (1985).

Our conclusion in this case is consistent with previous cases arising under § 52-592 (a). We have not often decided that a plaintiff, after a dismissal under an applicable rule of practice, should be denied access to the statute because the prior judgment was not a “matter of form.” When we have done so, our decision has focused on conduct other than mistake, inadvertence or excusable neglect. For example, we have held that § 52-592 (a) affords no relief in cases in which a plaintiffs prior action was dismissed because the plaintiff withdrew it voluntarily; see Parrott v. Meacham, 161 Conn. 573, 575, 290 A.2d 335 (1971); Baker v. Baningoso, supra, 134 Conn. 387; or consented to its dismissal. Such consent may be inferred from a plaintiffs failure to file a memorandum in opposition to a defendant’s motion to strike; Hughes v. Bemer, 206 Conn. 491, 495, 538 A.2d 703 (1988); or from a plaintiff s inordinate delay in appointing an administrator or executor. Walworth v. Hartford Hospital, 23 Conn. App. 404, 408-409, 580 A.2d 545 (1990). The rationale of those cases does not compel denial of relief under § 52-592 (a) to the plaintiffs in the present case if they can prove the circumstances of the dismissal of their case to be as alleged.

The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to remand the case to the trial court for further factual findings to determine the circumstances of the plaintiffs’ claimed justification for nonappearance at the pretrial conference.

In this opinion CALLAHAN, C. J., and NORCOTT, Js., concurred.

BERDON, J., with whom, KATZ, J.,

joins, dissenting. The majority for the first time holds that a disciplinary dismissal as a result of the conduct of a lawyer is not necessarily a “matter of form” that would permit a plaintiff to commence a new action as a matter of right pursuant to General Statutes § 52-592. Rather, according to the majority, it would depend upon the extent of the egregiousness of the lawyer’s conduct. In other words, as I understand the majority, if the lawyer’s conduct that resulted in the dismissal is not very bad— such as a “mistake, inadvertence or excusable neglect” — then, it is a “matter of form” and relief is available under § 52-592; but, on the other hand, if it is egregious, then the client is penalized by having his or her cause of action dismissed even though the action was brought for compensation for serious injuries as a result of negligent conduct by the defendant. The bottom line of the majority opinion is that a client may be punished for the transgressions of his or her lawyer.

In reaching this draconian result, the majority fails to consider the realities of the practice of law. Trial lawyers, in seeking to do justice for their clients, must accommodate the schedules of numerous trial courts, not only on the state level, but also on the federal level. The overwhelming number of our trial judges, who have practiced law themselves, appreciate this and, are able to accommodate the conflicting schedules. But, in doing so, the trial judges are still able to maintain firm control of their dockets in order to move the business of the court.

Nevertheless, I fully understand that there are some lawyers who attempt to take advantage of the system. In those instances, the law should not deny the client justice because of the misconduct of a lawyer. Clients should not be expected to micromanage their lawyer’s handling of the case. Although the plaintiffs selected their lawyer, as the majority points out, it is the judicial branch that licensed that lawyer and enabled him to practice law. Moreover, attorney “misconduct is amenable to direct punitive sanctions [such as Practice Book § 986 (3) and (4)] that can prevent attorneys from systemically engaging in misconduct that would disrupt the trial process. There is no need to take steps that will inflict the punishment on the [client],” who, like the plaintiffs in this case, did not participate in the lawyer’s misconduct. Taylor v. Illinois, 484 U.S. 400, 435, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988) (Brennan, J., dissenting).

Notwithstanding this public policy concern I have with respect to the new rule embraced by the majority, this decision is contrary to this court’s precedent, it violates our rules of statutory construction, including the liberal interpretation that must be afforded to remedial statutes, it takes this court on an excursion that will produce inconsistent and uncertain rulings that will, I am sure, result in grave injustices, and it violates basic principles of fairness.

This court has always considered that disciplinary dismissals due to a lawyer’s misconduct constitute a failure “for any matter of form” within the meaning of § 52-592 (a). See Pintavalle v. Valkanos, 216 Conn. 412, 581 A.2d 1050 (1990); Lacasse v. Burns, 214 Conn. 464, 572 A.2d 357 (1990); Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 474 A.2d 787 (1984). In 1984, this court took it upon itself to indicate to the plaintiff, who lost his appeal from the trial court’s denial of his motion to open a judgment of dismissal under § 251, that he was “not without remedy and, inter alia, may commence a new action pursuant to General Statutes § 52-592 . . . .” Gionfrido v. Wharf Realty, Inc., supra, 34 n.6. The court then noted that a judgment of “dismissal for failure to prosecute is failure of a ‘matter of form.’ ” Id., citing McMahon v. Colaci, 36 Conn. Sup. 269, 271, 418 A.2d 98 (1980). In Lacasse, this court affirmed the trial court’s ruling, which was based largely on Gionfrido, “that a dismissal entered pursuant to § 251 would not bar a subsequent action brought under the authority of § 52-592.” Lacasse v. Burns, supra, 471. In Pintavalle, this court cited Lacasse to explain why the plaintiff was able to file a third action against the defendant after his second action had been dismissed pursuant to § 251 for failure to prosecute with reasonable diligence. Pintavalle v. Valkanos, supra, 414 n.3.

Indeed, it was made crystal clear what was meant by an action being defeated “for any matter of form” in the 1888 case of Johnston v. Sikes, 56 Conn. 591 (Superior Court 1888). In Sikes, the court concluded that the addition of the phrase “any matter of form” to the accidental failure of suit statute (then designated as General Statutes [1888 Rev.] § 1386) “was to make the statute exceedingly broad and sweeping in its scope”; id., 591-92; and that the phrase “was used in contra-distinction to matter of substance, as embracing the real merits of the controversy between the parties.” Id., 592. Furthermore, we can assume that the legislature has acceded to our broad definition of a “matter of form.” In the more than 100 years since the court decided Sikes, the legislature never took action to contradict this court’s interpretation of the accidental fail-rue of suit statute. See State v. Spears, 234 Conn. 78, 90, 662 A.2d 80, cert. denied, 516 U.S. 1009, 116 S. Ct. 565, 133 L. Ed. 2d 490 (1995) (“[w]e presume that the legislature has knowledge of this longstanding construction which this court has given to the objective and purpose of legislation in this field” [internal quotation marks omitted]). Rather, as the majority concedes, during the ensuing years since the adoption of the statutory predecessors of § 52-592 (a) in 1862; see Public Acts 1862, c. 14; the legislature repeatedly visited the statute and broadened the eligibility for relief. See Broderick v. Jackman, 167 Conn. 96, 97-99, 355 A.2d 234 (1974).

Moreover, § 52-592 (a), “is remedial and is to be liberally interpreted. ” Ross Realty Corp. v. Surkis, 163 Conn. 388, 393, 311 A.2d 74 (1972); Baker v. Baningoso, 134 Conn. 382, 387, 58 A.2d 5 (1948); Johnston v. Sikes, supra, 56 Conn. 596. Further, “[i]t is the policy of the law to bring about a trial on the merits of a dispute whenever possible and to secure for the litigant his day in court. The design of the rules of practice is both to facilitate business and to advance justice . . . .” Snow v. Calise, 174 Conn. 567, 574, 392 A.2d 440 (1978). Consequently, § 52-592 (a) should be “so construed as to advance the remedy rather than to retard it.” (Internal quotation marks omitted.) Johnson v. Wheeler, 108 Conn. 484, 486, 143 A.2d 898 (1928). Indeed, as pointed out by Justice Shea in his concurring opinion in Andrew Ansaldi Co. v. Planning & Zoning Commission, 207 Conn. 67, 540 A.2d 59 (1988), the “accidental failure of suit statute, permitting a new action to be commenced after the original action has been defeated ‘for any matter of form’ id., 76; was designed to ameliorate the harshness of the common law in order for parties to have their cases resolved, not on the basis of the neglect of the lawyer, but rather on the merits. Id., 75-76. Justice Shea explained: “Centuries ago the common law courts of England similarly insisted upon rigid adherence to the prescribed forms of action, resulting in the defeat of many suits for technical faults rather than upon their merits. Some of that ancient jurisprudence migrated to this countiy with the settlers and has affected the development of procedural law in this state. Beginning in the middle of the nineteenth century, however, our legislature enacted numerous procedural reforms applicable to ordinary civil actions that are designed to ameliorate the consequences of many deviations from the prescribed norm, which result largely from the fallibility of the legal profession, in order generally to provide errant parties with an opportunity for cases to be resolved on their merits rather than dismissed for some technical flaw.” Id.

The majority’s novel interpretation of § 52-592 will also cause confusion. The degree of egregiousness that will bar a litigant from bringing a new action under § 52-592 will vary from case to case. Furthermore, the extent of that egregiousness will be determined, not by the trial judge who dismissed the original action, but, rather, by another court when ruling on the applicability of § 52-592. Such inconsistent and uncertain rulings will, I am sure, result in grave injustices.

Finally, it is apparent that the plaintiffs have been misled by this court. Rightfully assuming that disciplinary dismissals are a “matter of form” under § 52-592, the plaintiffs took no appeal from the dismissal of the original action. The majority of this court now changes the rule in midstream subjecting the plaintiffs to the possibility of never having their case heard on the merits. That violates basic principles of fairness.

In light of precedent, long-standing rules of statutory construction, public policy concerns, and principles of fairness, the plaintiffs should be allowed to pursue their action in accordance with § 52-592.

Accordingly, I dissent.

       General Statutes § 52-592 provides in relevant part: “Accidental failure of suit; allowance of new action, (a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits ... for any matter of form . . . the plaintiff . . . may commence a new action, except as provided in subsection (b) of this section, for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment. . . .”

       Practice Book § 251 provides in relevant part: “Dismissal for Lack of Diligence

        “If a party shall fail to prosecute an action with reasonable diligence, the court may, after hearing, on motion by any party to the action pursuant to Sec. 196, or on its own motion, render a judgment dismissing the action with costs. . .

       General Statutes § 52-212 provides in relevant part: “Reopening judgment upon default or nonsuit, (a) Any judgment rendered or decree passed upon a default or nonsuit in the Superior Court may be set aside, within four months following the date on which it was rendered or passed, and the case reinstated on the docket, on such terms in respect to costs as the court deems reasonable, upon the complaint or written motion of any party or person prejudiced thereby, showing reasonable cause, or that a good cause of action or defense in whole or in part existed at the time of the rendition of the judgment or the passage of the decree, and that the plaintiff or defendant was prevented by mistake, accident or other reasonable cause from prosecuting the action or making the defense. . . .”

       The plaintiffs could have challenged the merits of the judgment of dismissal by taking a timely appeal therefrom. On an appeal from a judgment following a denial of a motion to open pursuant to § 52-212 (a), however, the standard of appellate review is whether the trial court’s judgment was an abuse of its discretion. See, e.g., Biro v. Hill, 231 Conn. 462, 468, 650 A.2d 541 (1994); In re Baby Girl B., 224 Conn. 263, 294-95, 618 A.2d 1 (1992); Gionfrido v. Wharf Realty, Inc., 193 Conn. 28, 34, 474 A.2d 787 (1984). The plaintiffs elected not to take such an appeal.

       The plaintiffs have not challenged the argument of the defendants that, if § 52-592 (a) does not permit this action, the action would be barred by the otherwise applicable statute of limitations. General Statutes § 52-584.

       The original court, similarly, had not made any findings of fact about the reasons for the plaintiffs’ nonattendance at the pretrial conference.

       In its memorandum of decision, the court stated at one point that the original action had been dismissed because of “the plaintiff[s]’ failure to appear at several pretrial conferences.” At a later point, the memorandum stated that the dismissal had resulted from the failure of the plaintiffs to appear “at a previously scheduled pretrial conference.” (Emphasis added.)
      The defendants filed a motion for rectification or articulation to clarify this discrepancy. In their motion, the defendants conceded that “the original action was dismissed because of failure to appear at one pretrial . . . (Emphasis added.) At oral argument in this court, the defendants again conceded that “there was only one missed pretrial in this case.” We are, therefore, surprised at the statement in the defendants’ brief that the significance of their motion was merely to alert the court to an apparent typographical mistake in its memorandum of decision.

       The issue on which we granted the plaintiffs’ petition for certification to appeal is: “Did the Appellate Court properly conclude that the prior dismissal of the plaintiff[s]’ claims did not bring this action within the provisions of the accidental failure of suit statute, General Statutes § 52-592?” Ruddock v. Burrowes, 239 Conn. 955, 688 A.2d 326 (1996).

       The dissenting opinion makes the same assumption.

       In its memorandum of decision, the court, Arena, J., discussed neither the plaintiffs’ affidavit nor the failure of the defendants to file any opposing affidavit. Because Practice Book § 380 counsels the filing of an opposing affidavit, the court might have been entitled to draw an adverse inference from the absence of such an affidavit. However, “[t]he inference which may ordinarily be drawn from the failure of a party to file an opposing affidavit is not warranted where the other parly is the only person having knowledge of the particular facts involved.” Batick v. Seymour, 186 Conn. 632, 645-46, 443 A.2d 471 (1982); Nolan v. Borkowski, 206 Conn. 495, 504, 538 A.2d 1031 (1988).

       We do not agree, therefore, with the statement in the dissenting opinion that, “[t]his court has always considered that disciplinary dismissals due to a lawyer’s misconduct constitute a failure ‘for any matter of form’ within the meaning of § 52-592 (a).” See Hughes v. Bemer, 206 Conn. 491, 495, 538 A.2d 703 (1988); Parrott v. Meacham, 161 Conn. 573, 575, 290 A.2d 335 (1971); Baker v. Baningoso, supra, 134 Conn. 387; Walworth v. Hartford Hospital, 23 Conn. App. 404, 408-409, 580 A.2d 545 (1990). The fact that courts have allowed plaintiffs access to § 52-592 (a) in some cases involving § 251 dismissals does not mean that we must allow recourse to the statute if the attorney’s misconduct is egregious.

       A trial court, for example, might find an attorney’s misconduct to be egregious if the attorney represented that his nonappearance was caused by difficulties with his car without disclosing that he had ready access to alternative transportation. A trial court might make a similar finding if, in one case, the attorney repeatedly, and without credible excuse, delayed scheduled court proceedings. Nonappearances that interfere with proper judicial management of cases, and cause serious inconvenience to the court and to opposing parties, are categorically different from a mere failure to respond to a notice of dormancy pursuant to Practice Book § 251; see Lacasse v. Burns, supra, 214 Conn. 474; or a single failure to appear, in a timely fashion, after a luncheon recess. See Gionfrido v. Wharf Realty, Inc., supra, 193 Conn. 34 n.6.

       That statute has language resembling our construction of § 52-592 (a). See footnote 3 of this opinion.

       Many of the cases cited by the defendants to buttress their argument in favor of the trial court’s judgment in this case are inapposite because they arise, not under the remedial auspices of § 52-592 (a), but under the discretionary auspices of § 52-212. See, e.g., Jaconski v. AMF, Inc., 208 Conn. 230, 543 A.2d 728 (1988); Jaquith v. Revson, 159 Conn. 427, 270 A.2d 559 (1970).

       Whether the trial court in the original action properly dismissed the action pursuant to Practice Book § 251 and whether the trial court complied with the notice requirements and the right to be heard in § 251 are not at issue before this court. I assume, for the purposes of this case, that the dismissal of the original action for the failure of the lawyer to appear at a pretrial conference was authorized under § 251.
      Practice Book § 251 provides: “If a party shall fail to prosecute an action with reasonable diligence, the court may, after hearing, on motion by any party to the action pursuant to Sec. 196, or on its own motion, render a judgment dismissing the action with costs. At least two weeks’ notice shall be required except in cases appearing on an assignment list for final adjudication. Judgment files shall not be drawn except where an appeal is taken or where any party so requests.
      “If a case is printed on a dormancy calendar pursuant to the dormancy program administered under the direction of the chief court administrator, and a motion for default for failure to plead is filed pursuant to Sec. 128, only those papers which close the pleadings by joining issues, or raise a special defense, maybe filed by any party, unless the court otherwise orders.”

       Practice Book § 986 provides in relevant part: “The judicial authority may punish by fine or imprisonment or both . . .
      “(3) Any officer of the court who misbehaves in the conduct of his official court duties; or
      “(4) Any person disobeying in the course of a civil or criminal proceeding any order of a judicial authority.”
      Section 986 has since been temporarily redesignated as § 7G, effective October 1, 1997, and subsection (4) was made applicable to family and juvenile proceedings as well.

       I agree that there is a single Appellate Court case; Skibeck v. Avon, 24 Conn. App. 239, 587 A.2d 166, cert. denied, 219 Conn. 912, 593 A.2d 138 (1991); wherein the Appellate Court affirmed the trial court’s grant of summary judgment in favor of the defendant and in effect refused to apply the savings provision of § 52-592 to aPractice Book § 251 dismissal. But that case is certainly an aberration. Indeed, the Appellate Court in Skibeck curiously conceded that by stating: “In the case before us, the trial court concluded that the plaintiffs diligence did not fall within the reasonable portion of the spectrum of diligence contemplated by § 251. This fact alone, however, cannot overcome the broad remedial provisions of § 52-592. Lacasse v. Burns, [214 Conn. 464, 474, 572 A.2d 357 (1990)].” Skibeck v. Avon, supra, 242. I note that no particular significance should be given to the fact that this court refused to grant certification in Skibeck. Cf. New York, New Haven & Hartford R. Co. v. California Fruit Growers Exchange, 125 Conn. 241, 251, 5 A.2d 353 (1939) (denial of writ of certiorari by United States Supreme Court “imports no expression of opinion upon the merits of the case” [internal quotation marks omitted]).
      The majority, in footnote 11 of its opinion, incorrectly relies on four other cases to support its assertion that egregious § 251 dismissals do not fall within the broad remedial provisions of § 52-592: Hughes v. Bemer, 206 Conn. 491, 495, 538 A.2d 703 (1988) (order that enters pursuant to Practice Book § 155, which requires adverse party who objects to motion to strike to file memorandum of law, is not “matter of form” under § 52-592 [a]); Parrott v. Meacham, 161 Conn. 573, 575, 290 A.2d 335 (1971) (plaintiff, who voluntarily withdraws action, may not take advantage of accidental failure of suit statute to commence new action); Baker v. Baningoso, 134 Conn. 382, 387, 58 A.2d 5 (1948) (same); and Walworth v. Hartford Hospital, 23 Conn. App. 404, 408-409, 580 A.2d 545 (1990) (dismissal pursuant to Practice Book § 143, which requires adverse party to motion to dismiss to file memorandum of law, did not constitute failure “for any matter of form”).

       The majority would have us believe that the legislature intended to deprive the plaintiffs, a fourteen year old boy and his mother, their day in court to recover damages from a defendant who allegedly operated his motor vehicle in a negligent manner, thereby striking the child while he was riding his bicycle causing him serious physical ipjuries, merely because the lawyer failed to appear at a pretrial conference.

       See, e.g., Gionfrido v. Wharf Realty, Inc., supra, 193 Conn. 34 n.6.

       See footnote 1 of this dissent.


source: Caselaw Access Project

author: KATZ, J.

license: Public Domain

text:
    JERRY L. JENKINS v. MARY R. JENKINS
    (SC 15671)
    Borden, Berdon, Norcott, Katz and McDonald, Js.

      Argued December 3, 1997
    officially released January 27, 1998

      Claudine Siegel, with whom were Terrence R. Real and, on the brief, Garrett H. Tuller, for the appellant (defendant).

      Philip K. Meister, for the appellee (plaintiff).
   Opinion

KATZ, J.

The sole issue to be decided in this appeal is whether dependency benefits received pursuant to the Social Security Act by the minor children of the disabled plaintiff, Jerry L. Jenkins, that are credited toward the amount of the plaintiffs child support obligation should also be included in his gross income when determining that obligation under the Child Support and Arrearage Guidelines (guidelines). The trial court, in ruling on the plaintiffs postjudgment motion for modification of child support, held that the dependency benefits paid directly to the minor children of the plaintiff on account of his disability were to be credited against the plaintiffs child support obligation, but were not to be included in his gross income for purposes of determining his child support obligation. The defendant appealed to the Appellate Court, claiming that the dependency benefits for which the plaintiff received a credit were improperly excluded from the plaintiffs gross income in determining his child support obligation. Pursuant to Practice Book § 4023 and General Statutes § 51-199 (c), we transferred the matter to this court. We reverse the judgment of the trial court.

The following facts are undisputed. The plaintiff and defendant were awarded joint legal custody of then-two minor children when their marriage was dissolved in 1991. The defendant was awarded primary physical custody of the children, and the plaintiff was ordered to pay $267 per week in child support. Following the dissolution, the plaintiff became totally disabled, and began to receive both private longterm disability benefits and, pursuant to 42 U.S.C. § 401 et seq., social security disability benefits, together totaling $524.40 per week. The minor children also began to receive social security disability dependent’s benefits of $157.67 per week pursuant to 42 U.S.C. § 402 (d).

The parties disagreed as to how the dependency benefits paid directly to the children should be treated, and eventually reached a compromise agreement on March 7, 1994, which was ordered into effect by the trial court on that date. The order modified the amount of the plaintiffs child support obligation to $75 per week. Subsequently, the Social Security Administration notified the defendant that, because the plaintiff had remarried and his second wife had given birth to twins, the dependency benefits that the parties’ two minor children receive would be reduced by one half, with the balance to be paid to the children of the plaintiffs second marriage. The plaintiff filed a motion for modification of child support requesting a credit against his child support obligation in the amount of the social security dependency benefits received directly by the children of his first marriage. The trial court granted the motion pursuant to § 46b-215a-2 of the Regulations of Connecticut State Agencies. The court refused to order, however, as requested by the defendant, that the dependency benefits credited against the plaintiffs child support obligation be included in the plaintiffs gross income for purposes of determining the child support obligation under the guidelines. This appeal followed.

Resolution of the issue of whether the dependency benefits received by the plaintiffs minor children should be included in the plaintiffs gross income in determining the amount of his child support obligation requires interpretation of the statutory scheme that governs child support determinations in Connecticut, and, therefore, constitutes a question of law. Charles v. Charles, 243 Conn. 255, 258, 710 A.2d 650 (1997). In construing statutes, “[o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature. ... In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.” (Internal quotation marks omitted.) Conway v. Wilton, 238 Conn. 653, 663, 680 A.2d 242 (1996). The standard of appellate review governing questions of law is that “where the legal conclusions of the court are challenged, we must determine whether they are legally and logically correct and whether they find support in the facts set out in the memorandum of decision . . . .” (Internal quotation marks omitted.) Keeney v. Old Saybrook, 237 Conn. 135, 143, 676 A.2d 795 (1996).

The plaintiff claims that dependency benefits paid directly to his children and credited against his child support obligation should not be included in his gross income for purposes of determining his child support obligation because: (1) gross income as defined by the guidelines does not specifically identify such benefits as an element of gross income and, therefore, should not be interpreted to include them; (2) dependency benefits are treated as income to the minor children by the federal and state income tax codes and, therefore, should not be treated as income to the noncustodial parent; and (3) inclusion of the dependency benefits in the plaintiffs income will cause a misallocation of support among the plaintiffs two family units, an unfair and inequitable result.

Conversely, the defendant claims that although the guidelines broadly define gross income and expressly exclude other items, they do not expressly exclude dependency benefits and, consequently, those benefits must be included. Furthermore, the defendant contends, dependency benefits are paid to dependent children as a replacement for the parent’s lost income, and, therefore, from an economic standpoint, are most appropriately characterized as income to the parent, rather than as income to the child. Finally, the defendant claims that excluding the benefits from the plaintiffs gross income when determining the child support obligation results in a failure to account for all of the income that would have been available to support the children if the family had remained intact. We agree with the defendant.

Neither the guidelines nor any other relevant statute or regulation explicitly states whether dependency benefits paid directly to minor children are to be treated as an element of the noncustodial parent’s gross income. Section 46b-215a-l (11) of the Regulations of Connecticut State Agencies defines gross income as “the average weekly income before deductions.” That section further identifies twelve specific elements of gross income and provides that “[g]ross income includes, but is not limited to” those items. Regs., Conn. State Agencies § 46b-215a-l (11) (A). Finally, the definition of gross income expressly excludes the following two items: “(i) support received on behalf of a child who is living in the home of the parent whose income is being determined”; and “(ii) federal, state, and local public assistance grants.” Regs., Conn. State Agencies § 46b-215a-l (11) (B).

Although the definition of gross income contained in the guidelines does not list dependency benefits among the items specifically included, it does provide that the list is not exclusive. The trial court’s conclusion that, under the rules of statutory construction, the inclusion of some means the exclusion of the other, is inapposite where the regulation expressly provides that its list of inclusions is not exhaustive. In addition, the fact that other items are expressly excluded further indicates that the list of specifically included items was not intended to be exclusive.

It is also significant that the list of specifically enumerated inclusions identifies “social security (excluding Supplemental Security Income [SSI])” as an item that is expressly included in gross income, with the named exception. Regs., Conn. State Agencies § 46b-215a-l (11) (A) (vii). In light of the inclusion of this provision, we conclude that if social security dependency benefits had been intended to be excluded from the definition of gross income, they would have been excluded within this same parenthetical. The fact that dependency benefits are not mentioned further supports the notion that the commission did not intend to exclude them.

The plaintiff points to the fact that when the guidelines were amended by the commission in 1994 in order to grant a credit to noncustodial parents for social security dependency benefits paid directly to their dependent children, the definition of gross income was not simultaneously amended expressly to identify those benefits as an element of gross income. The defendant, however, offers two plausible explanations for the commission’s failure to so amend the guidelines. First, the defendant submits that the commission may have believed that the existing, broad definition of gross income was already sufficiently expansive to encompass dependency benefits. Second, the defendant submits that, because the commission simultaneously amended the definition of gross income expressly to include social security benefits with the exception of supplemental security income, it did make clear through such action that dependency benefits are an element of gross income. We find this latter explanation of the 1994 changes to the guidelines persuasive. If the commission were amending the guidelines in order to make clear that (1) a credit should be given for dependency benefits, and (2) social security benefits are an element of gross income, with the exception of supplemental security income, it would have explicitly excluded dependency benefits along with supplemental security income from the broad definition of gross income that already existed if such a result had been intended.

In other jurisdictions that have addressed the question of whether dependency benefits are includible in a noncustodial parent’s gross income, courts have noted that the benefits are analogous to income of the parent. Under the Social Security Act, employees and employers contribute to the common fund from which these types of benefits derive. See 42 U.S.C. § 301 et seq. Therefore, social security benefits are appropriately characterized as “earnings of the contributing parent . . . .” Miller v. Miller, 890 P.2d 574, 577 (Alaska 1995). “These payments are for the purpose of replacing income lost because of the employee’s inability to work upon becoming disabled.” Horton v. Horton, 219 Ga. 177, 178, 132 S.E.2d 200 (1963). The benefits “are not gratuities but are earned, and they substitute for lost earning power because of the disability.” (Internal quotation marks omitted.) Pontbriand v. Pontbriand, 622 A.2d 482, 485 (R.I. 1993).

The characterization of dependency benefits as a substitute for the disabled party’s lost income has been identified as the basis for allowing a credit to the noncustodial parent toward his or her child support obligation. “The majority view . . . regards social security benefits [paid to dependent children] as earnings of the contributing parent and, for this reason, allows benefits paid to a child on the parent’s behalf to be credited toward child support obligations.” Miller v. Miller, supra, 890 P.2d 577. The same reasoning has also provided the basis for the decision to include the benefits in the gross income of the noncustodial parent. “In deciding that the . . . benefits . . . should be credited as child support payments by [the noncustodial parent], we reasoned that those benefits are essentially earnings derived by [the noncustodial parent] from his past social security contributions. By parallel reasoning, the benefits should be counted as income to [him].” Id., 578.

Moreover, the plaintiff enjoys the benefit of the credit against his child support obligation, and the credit enables him to retain more of his other income for himself. Such a release from an obligation or discharge from indebtedness is logically characterized as income. “The benefits . . . offset [the noncustodial parent’s] incapacity to provide for his children through continued employment. [The noncustodial parent] enjoys a credit against his support obligation for the amount of those benefits. Thus, those benefits are, in effect, income to him and fall within the definition of his income under [the guidelines].” Whitaker v. Colbert, 18 Va. App. 202, 206, 442 S.E.2d 429 (1994).

Although the plaintiff relies on the fact that the state and federal tax codes treat the dependency benefits as income to the minor children who directly receive them to support his claim that the benefits were not intended to be included in the noncustodial parent’s gross income under the guidelines, neither the state nor federal tax code definition is controlling in this situation. Because the guidelines contain their own definition of gross income, it is that definition that is determinative. Certainly, the commission could have opted to adopt a definition identical to those adopted by either tax code had it so desired, but it chose instead to define gross income in its own terms. As we have previously discussed, the definition contained in the guidelines supports an interpretation that encompasses the benefits as an element of gross income.

Finally, the defendant contends that our overall statutory scheme governing child support requires that dependency benefits be included in gross income, because the failure to include them leads to a result that is inconsistent with the public policy embodied in our statutory framework. Specifically, the defendant claims that the exclusion of the benefits from the plaintiffs gross income when determining the child support obligation results in a failure to account for all of the income that would have been available to support the children had the family remained intact — a result opposite from that which was contemplated by our statutes. The plaintiff, on the other hand, maintains that under certain circumstances, such as those here, an inequitable result occurs when dependency benefits are included in the noncustodial parent’s gross income because the inclusion leads to a misailocation of that parent’s resources between his two families. We agree with the defendant.

The guidelines provide that the basic principles from which they were derived are found in the “income shares model” of calculation of child support. The income shares model is “predicated on the concept that the child should receive the same proportion of parental income as he or she would have received if the parents lived together.” Child Support and Arrearage Guidelines, Preamble, § (c), p. ii. Therefore, in order to be in accord with the guidelines, the determination of a parent’s child support obligation must account for all of the income that would have been available to support the children had the family remained together.

In this case, both the disability income received by the plaintiff and the dependency benefits received by the children would have been available to support the children if the family had remained intact. The failure to include these benefits in the plaintiffs gross income leads to a determination of child support based upon an income figure that does not accurately reflect the income available to the family unit. Contrary to the plaintiffs assertion that the inclusion of dependency benefits in gross income when applying the guidelines would lead to an unfair and inequitable result, we conclude that it is the failure to include those benefits in gross income that would lead to an inequitable result, by failing to afford the minor children of the plaintiffs first marriage the amount of support contemplated by the guidelines. Consequently, the dependency benefits must be included in the plaintiffs gross income in order accurately to determine his child support obligation.

For all of the reasons we have discussed, we hold that social security dependency benefits paid to the minor children of the plaintiffs first marriage and credited against his child support obligation must be included in the plaintiffs gross income for purposes of determining the amount of his child support obligation under the guidelines.

The judgment is reversed and the case is remanded for recalculation of the plaintiffs child support obligation.

In this opinion the other justices concurred.

       The Social Security Act is codified at 42 U.S.C. § 301 et seq., and is administered by the Social Security Administration.

       The guidelines are set forth at § 46b-215a-1 et seq. of the Regulations of Connecticut State Agencies. The guidelines are promulgated by the commission for child support guidelines (commission), which was established by the legislature pursuant to General Statutes § 46b-215a. General Statutes § 46b-215b (a) provides that the guidelines are to be considered in all determinations of child support in the state, and creates a rebuttable presumption that the amount of support calculated through application of the guidelines is the amount of support to be ordered.

       Section 4Gb-215a-2 of the Regulations of Connecticut State Agencies provides in relevant part: “(b) Determining the amount of support ....
      “(6) Adjust for social security benefits
      “Enter ... in the noncustodial parent’s column the weekly amount of any social security benefits payable under such parent’s account on behalf of the subject child.
      “(7) . . . The recommended support amount for each parent is determined by subtracting the a<ljustments for health insurance premiums and social security benefits from each parent’s share of the total support obligation . . . .”

       Section 46b-215a-l of the Regulations of Connecticut State Agencies provides in relevant part: “(11) ‘Gross income’ means the average weekly income before deductions.
      “(A) Inclusions
      “Gross income includes, but is not limited to:
      “(i) salary and wages, including overtime “(ii) commissions, bonuses, tips and perquisites
      “(iii) rental income after deduction of reasonable and necessary expenses “(iv) estate or trust income “(v) royalties
      “(vi) interest, dividends, and annuities
      “(vii) social security (excluding Supplemental Security Income [SSI]), veterans, unemployment and workers’ compensation, retirement, pension, and other benefits

        “(viii) net proceeds from contractual agreements
      “(ix) self-employment earnings, after deduction of all legitimate business expenses
      “(x) alimony being paid by an individual who is not a party to the support determination
      “(xi) unearned income from all sources
      “(xii) in-kind compensation (any basic maintenance or special need such as food, shelter, or transportation provided on a recurrent basis in lieu of salary).
      “(B) Exclusions
      “Gross income does not include:
      “(i) support received on behalf of a child who is living in the home of the parent whose income is being determined
      “(ii) federal, state, and local public assistance grants.”

       See General Statutes § 12-701 (19) and 26 U.S.C. § 86.

       The plaintiff claims that if we determine that the social security dependency benefits received by the children of his first marriage that are credited against his child support obligation are includible in his gross income for purposes of determining child support, then any such benefits received by the children of his second marriage will also have to be included in his gross income when determining the amount of support to be paid to the children of his first marriage. Such a result, the plaintiff claims, would create a misallocation of resources among his two families. We do not read the defendant’s appeal as requesting such relief in this case. Furthermore, as far as the record before us indicates, only the children of the plaintiffs first marriage are currently receiving social security dependency benefits, and, consequently, only that amount, $157.67, is being credited against the plaintiffs child support obligation. Therefore, we do not decide now whether social security dependency benefits that, in the future, may be paid to the children of the plaintiffs second marriage, but for which no credit would be provided under § 46b-215a-2 of the regulations, should also be included in the plaintiffs gross income.


author: MCDONALD, J.

text:
    TERRY K. BUSHY ET AL. v. GEORGE E. FORSTER ET AL.
    (SC 15604)
    Callahan, C. J., Norcott, Katz, Palmer and McDonald, Js.
    Argued October 29, 1997
    officially released January 27, 1998

      Michael P. Del Sole, with whom, on the brief, was Anthony J. Pantuso III, for the appellants (defendants).

      Herbert Watstein, for the appellees (plaintiffs).
   Opinion

MCDONALD, J.

The sole issue in this appeal is whether the Appellate Court correctly concluded that the trial court abused its discretion by insufficiently commenting on the evidence in its charge to the jury. We conclude that the trial court adequately instructed the jury and accordingly reverse the judgment of the Appellate Court.

The plaintiff, Terry K. Bushy, filed a complaint, alleging negligence and nuisance by the defendants, George E. Forster and Judith A. Forster, for events relating to the plaintiffs fall at the defendants’ apartment building where the plaintiff was a tenant. The plaintiff alleged that the defendants negligently allowed water from a roof downspout to drain onto the driveway surface, where the water froze and created a dangerous and hazardous condition, upon which she fell. The defendants denied that they were negligent and that they created any dangerous condition. They also filed a special defense that the plaintiffs own negligence caused her injuries.

The plaintiff filed requests to charge, some of which alluded to the facts alleged in her complaint. The court instructed the jury to determine, however, whether the evidence presented supported any of the allegations in the complaint or the special defense of contributory negligence. In doing so, the court provided the jury with copies of the complaint, answer and special defenses.

The plaintiff excepted to the trial court’s instructions, claiming that there “should have [been] some reference to some of the evidence .... [T]he court could have clarified and related some of the evidence to the charge.” In response, the court stated, “[I]t’s this court’s policy not to comment on the evidence . . . .”

The jury rendered a verdict in favor of the named defendant. The plaintiff thereafter appealed to the Appellate Court, which dismissed, suo motu, the plaintiffs appeal for lack of a final judgment as to the defendant Judith A. Forster. The plaintiff, on the granting of certification, appealed to this court. We reversed the Appellate Court’s judgment of dismissal and remanded the case to that court with direction to remand the case to the trial court for judgment in favor of both defendants and to reinstate the case on the Appellate Court docket. Bushy v. Forster, 236 Conn. 451, 673 A.2d 109 (1996). Thereafter, the Appellate court reversed the judgment of the trial court and remanded the case for a new trial. Bushy v. Forster, 43 Conn. App. 578, 684 A.2d 739 (1996). We granted the defendants’ petition for certification to appeal as to the following issue: “Under the circumstances of this case, did the Appellate Court properly conclude that the trial court abused its discretion in not commenting on the evidence in its charge to the jury?” Bushy v. Forster, 240 Conn. 905, 688 A.2d 333 (1997).

“ ‘The extent to which a court should comment on the evidence is largely a matter within its sound discretion.’ ” State v. Lemoine, 233 Conn. 502, 515, 659 A.2d 1194 (1995). However, “ ‘in some cases, where the issues are complicated, peculiar, or capable of differing conclusions, comment by the court is necessary.’ ” Id.

This was a simple case, presented in six days, where the evidence was not complicated. The issues concerning the landlord’s negligence in the maintenance of the building’s roof drainage system and the tenant’s conduct leading up to her fall were straightforward. The trial court clearly spelled out the duty of the defendants to maintain the premises in a reasonably safe condition and the duty of the plaintiff to act in a reasonably safe manner to avoid injury.

We conclude, in the circumstances, that the trial court’s instructions gave sufficient direction with respect to the allegations of the plaintiffs complaint and the defendants’ special defenses to guide the jury in its deliberations. The extent and detail of the facts in a jury instruction is properly within the broad discretion of the trial judges.

Because we conclude that the trial court did not abuse its discretion in its charge to the jury, we reverse the judgment of the Appellate Court and remand the case to that court to resolve the remaining issues on appeal.

The judgment of the Appellate Court is reversed and the case is remanded to that court for further proceedings.

In this opinion the other justices concurred.

       The complaint named Terry K. Bushy and her husband, Robert Bushy, as the plaintiffs. Terry K. Bushy and her husband originally sought damages in three counts, nuisance, negligence and loss of consortium. The loss of consortium claim was not pursued at trial and no evidence was presented in relation to it. Because Robert Bushy is no longer a party in interest, Terry K. Bushy is referred to as the plaintiff throughout this opinion.

       The court instructed the jury as follows: “ ‘As to the pleadings. You’re going to have in the jury deliberation room with you the pleadings. . . . Now in this case; the plaintiff has alleged two theories of liability against the defendant in her complaint. Count one is in negligence. Count three is in nuisance. ... I am not going to read all the allegations of the complaint to you, but I will point out to you that you must look at the complaint and see if the evidence supports any of the allegations of the complaint ... I would point out to you that as you review the complaint, allegation ten spells out what the claims of negligence are by the defendant. That’s what the plaintiff claims the defendant did wrong. So, look at allegation ten. Basically, the defendant denies allegation ten, denies that they did anything wrong to cause the fall. Allegation eleven spells out what the plaintiff claims her injuries were and basically the defendants leave the plaintiff to her proof as to the allegations of injury. . . . You’ll see that the third count is a count in absolute nuisance. I will go over that with you when I describe what nuisance is. You will have a copy of the defendant’s answer and you will note in the defendant’s answer that they set forth special defenses. Of course, the special defenses are denied by the plaintiff and you’ll have a copy of that denial. But, essentially what the defendant says in their special defenses are that in the first special defense, they say that any injuries and damage suffered by the plaintiff were caused by the carelessness and negligence of the plaintiff, Terry Bushy, in one or more of the following ways: A, in that she failed to keep a proper lookout for her own safety, and B, that she failed to watch where she was going and failed to watch where she was placing her feet. And, C, that she failed to make reasonable and proper use of her senses. And there’s further, there’s D, E and F, and I’m not going to read the entire account. You’ll have it with you in the jury room. The second special defense is that the injuries and damages suffered by the plaintiff were caused by her own negligence and failure to remove snow from the driveway. And then there’s a third special defense. Again, you’re going to have those documents in the jury deliberation room with you and you will be able to review them in more detail, at that time.’ ” Bushy v. Forster, 43 Conn. App. 578, 581-82 n.3, 684 A.2d 739 (1996).

       The plaintiff raised two other issues on appeal which the Appellate Court did not consider. Bushy v. Forster, 43 Conn. App. 578, 579 n.1, 684 A.2d 739 (1996).

       We also suggest that more detailed requests to comment on the evidence and exceptions to the charge than were present here should be provided by counsel. A general exception that merely requests further instructions commenting on the evidence may result in improper emphasis on some evidence.