author: Santaniello, J.

text:
    State of Connecticut v. Gordon L. White
    (12749)
    Peters, C. J., Healey, Santaniello, Dupont and Hadden, Js.

      Argued February 3
    decision released July 14, 1987

      Michael J. Whelton, for the appellant (defendant).

      JohnM. Massameno, assistant state’s attorney, with whom were James G. Clark, assistant state’s attorney, David Shepack and Christopher Morano, deputy assistant state’s attorneys, and, on the brief, JohnM. Bailey, state’s attorney, and Thomas Hrusa and Mitchell Goldklang, legal interns, for the appellee (state).
   Santaniello, J.

The defendant, Gordon L. White, was charged in a substitute information with three counts of criminally negligent homicide in violation of General Statutes §§ 53a-58 and 53a-3 (14), and with three counts of failing to provide a smoke detector in violation of Connecticut state fire safety code §§ 11-1.8.1 and 11-3.3.3.1, and General Statutes §§ 29-292 and 29-295. After a jury trial, the defendant was found guilty on all six counts and was sentenced to a total effective term of one year, execution suspended, with three years probation and fined $4500.

On appeal, the defendant raises six claims of error, which can be fairly summarized as follows: (1) that the state fire safety code and statutes charging him with failing to provide smoke detectors are unconstitutionally vague; (2) that the state fire safety code provisions exceed the scope of authority conferred by the code’s enabling statute; and (3) that the failure to install smoke detectors cannot provide a sufficient basis for a conviction of criminally negligent homicide. We find error.

The jury could reasonably have found the following facts: The defendant owned a three family residential building located at 1387 Corbin Avenue in New Britain. On December 25,1982, at approximately 5:30 a.m., Edward Ross, an occupant of the first floor apartment, awoke to find smoke filtering into his apartment. After waking up his wife, their child, and his brother-in-law, and escorting them outside, Ross summoned the New Britain fire department. The fire department arrived at the scene almost immediately and began battling a fire which had broken out on the second floor. Several firefighters entered the second floor apartment, which was full of smoke, and discovered the bodies of Maryann Jones and her two young children, Lindsay and Brandy, the occupants of that apartment, lying dead on the floor. The medical examiner concluded that all three had died from asphyxia caused by smoke inhalation.

It was estimated that the fire, apparently caused by an electrical overload from a wall outlet into which a quartz heater had been plugged, began smoldering at approximately 2:30 a.m., but did not break out in the apartment until about 5:30 a.m. As a result of the slow burning nature of the fire, the apartment was covered with soot and was filled with thick smoke. There were no smoke detectors in the building.

At trial, the state introduced evidence regarding how a smoke detector works, the cost of a smoke detector, how it is installed, and its effectiveness. Additionally, testimony was introduced that had smoke detectors been installed in the defendant’s building, the occupants would have been alerted to the fire in sufficient time to enable them to escape.

Evidence was also introduced that the defendant owned another multifamily apartment building located in East Hartford. In May, 1982, the defendant received notice from the East Hartford fire marshal informing him that he was required to furnish smoke detectors in his East Hartford building. The defendant installed smoke detectors in the East Hartford building, but he did not install smoke detectors in his New Britain building. Additionally, prior to December, 1982, the defendant undertook renovations on the New Britain property but did not obtain building permits for the work he performed.

At the conclusion of the state’s case, the defendant moved for a judgment of acquittal claiming that: (1) the state had failed to prove that the defendant, by not installing smoke detectors, had acted with criminal negligence or had proximately caused the deaths of the victims; and (2) the state had failed to prove that the defendant had violated Connecticut fire safety code §§ 11-1.8.1 and 11-3.3.3.1 and General Statutes §§ 29-292 and 29-295 because the state did not establish that a building permit had been issued on or after October 1, 1976, for the building in question. The defendant also argued that the fire safety code was inconsistent with its enabling statute in contravention of General Statutes § 29-293. The court denied the defendant’s motion. Subsequently, after judgment was rendered, the defendant filed a motion in arrest of judgment and a motion for judgment of acquittal, both of which were denied.

I

Initially, the defendant contends that his convictions for failing to provide smoke detectors must be set aside because the state fire safety code provisions and applicable statutes are unconstitutionally vague, in violation of the fourteenth amendment to the United States Constitution and article first, § 8, of the Connecticut constitution. Specifically, the defendant claims that § 11-1.8.1 of the Connecticut state fire safety code fails to provide sufficient notice of the conduct required for providing and installing a smoke detector, and that General Statutes § 29-296 allows for arbitrary and discriminatory enforcement of the code by the fire marshal.

Due process demands that a statute be sufficiently definite and precise to enable a person to know what is permitted and what is prohibited. See, e.g., State v. Bunkley, 202 Conn. 629, 642, 522 A.2d 795 (1987); Gunther v. Dubno, 195 Conn. 284, 297, 487 A.2d 1080 (1985); State v. Pickering, 180 Conn. 54, 59-60, 428 A.2d 322 (1980). “ ‘That the terms of a penal statute . . . must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law. . . .’ ” State v. Pickering, supra, 60, quoting Connolly v. General Construction Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926). “[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.” Connally v. General Construction Co., supra; see State v. Cavallo, 200 Conn. 664, 667, 513 A.2d 646 (1986); State v. Eason, 192 Conn. 37, 46, 470 A.2d 688 (1984); Mitchell v. King, 169 Conn. 140, 142-43, 363 A.2d 68 (1975). Thus, “[l]aws must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited so that he may act accordingly. Also, if arbitrary and discriminatory enforcement is to be prevented, laws must provide adequately delineated standards for those who apply them.” Mitchell v. King, supra, 143; see Grayned v. Rockford, 408 U.S. 104, 108-109, 92 S. Ct. 2294, 33 L. Ed. 2d 222 (1972).

It is not necessary, however, that a statute list the precise conduct prohibited or required. State v. Eason, supra, 47. It is recognized that the law may be general in nature; the constitution requires no more than a reasonableness of certainty. Id.; State v. Chetcuti, 173 Conn. 165, 167, 377 A.2d 263 (1977). “ ‘The test is whether the language conveys sufficiently definite warning as to the proscribed [or required] conduct when measured by common understanding and practices.’ Jordan v. DeGeorge, 341 U.S. 223, 231-32, 71 S. Ct. 703, 95 L. Ed. 886 [reh. denied, 341 U.S. 956, 71 S. Ct. 1011, 95 L. Ed. 1377 (1951)].” State v. Chetcuti, supra, 167—68; see Rose v. Locke, 423 U.S. 48, 50, 96 S. Ct. 243, 46 L. Ed. 2d 185 (1975).

The defendant first claims that the fire safety code is unconstitutionally vague because it is unclear from § 11-1.8.1 whether the smoke detector must be “installed” or “provided.” Section 11-1.8.1, which states that “each dwelling unit shall be provided with a minimum of one approved smoke detector installed in a manner and location approved by the local fire marshal and the responsible building official,” clearly delineates that the person providing the smoke detector must also install it. Therefore, § 11-1.8.1 is not unconstitutionally vague in this regard.

The defendant also claims that the provision is unconstitutionally vague because it fails to set forth who must provide and install the smoke detector. We find the defendant’s contention without merit for several reasons. As we stated in State v. Pickering, supra, 62-63, “[References to judicial opinions involving the statute, the common law, legal dictionaries or treatises may be necessary to ascertain a statute’s meaning to determine if it gives fair warning.” On October 6,1982, approximately two and one-half months before the fire in this case, Tucker v. Lopez, 38 Conn. Sup. 67, 68-69, 457 A.2d 666 (1982), was decided, stating that the landlord is required to install smoke detectors pursuant to § 11-1.8.1 of the fire safety code.

Moreover, as we also stated in State v. Pickering, supra, 57, “the constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute’s applicability to the particular facts at issue.” In the present case, the defendant received notice from the East Hartford fire marshal informing him that he was required to install smoke detectors in that building pursuant to the fire safety code. We conclude that, in light of the prior judicial decision and the notice from the East Hartford fire marshal, the defendant had been fairly warned that he had a duty to install smoke detectors in his New Britain building.

The defendant further argues that General Statutes § 29-296 gives the fire marshal unbridled discretion to enforce the fire safety code arbitrarily and discriminatorily because it allows him to grant variances or exemptions from the regulations. The defendant, however, never sought a variance or exemption pursuant to § 29-296. As we have previously stated, the constitutionality of a statute is to be determined by the particular facts at issue. State v. Pickering, supra; see also State v. Eason, supra, 46. Because the defendant has not claimed that the fire marshal discriminatorily or arbitrarily enforced the code provisions against him, the defendant cannot be heard to complain that § 29-296 is unconstitutionally vague with respect to his case. Accordingly, we find the defendant’s argument that § 11-1.8.1 of the Connecticut state fire safety code and General Statutes § 29-296 are unconstitutionally vague is without merit.

II

The defendant next complains that the fire safety code regulations exceed the scope of authority conferred by § 29-292, the code’s enabling legislation. We agree.

It is well established that although the power to make law is vested exclusively in the legislature, the legislature may create a law designed to accomplish a particular purpose and may expressly authorize an administrative agency to “fill up the details” by prescribing rules and regulations for the operation and enforcement of that law. State v. Stoddard, 126 Conn. 623, 628, 13 A.2d 586 (1940); Salmon Brook Convalescent Home, Inc. v. Commission on Hospitals & Health Care, 177 Conn. 356, 363, 417 A.2d 358 (1979); Kellems v. Brawn, 163 Conn. 478, 498-500, 313 A.2d 53 (1972), appeal dismissed, 409 U.S. 1099, 93 S. Ct. 911, 34 L. Ed. 2d 678 (1973); Aunt Hack Ridge Estates, Inc. v. Planning Commission, 160 Conn. 109, 114, 273 A.2d 880 (1970); H. Duys & Co. v. Tone, 125 Conn. 300, 312-13, 5 A.2d 23 (1939). It is necessary, however, that the enabling statute declare legislative policy, establish primary standards or lay down an intelligible principle to which the administrative officer or body must conform. State v. Stoddard, supra. If the legislature fails to prescribe the limits of the power delegated with reasonable clarity, or the power is too broad, its attempt to delegate is a nullity. Id. While the modern trend of the legislature is liberal in approving delegation under broad regulatory standards so as to facilitate the operational functions of administrative agencies; Salmon Brook Convalescent Home, Inc. v. Commission on Hospitals & Health Care, supra, 368; agencies must, nonetheless, act according to the strict statutory authority. Page v. Welfare Commissioner, 170 Conn. 258, 262, 365 A.2d 1118 (1976); Fusco-Amatruda Co. v. Tax Commissioner, 168 Conn. 597, 604, 362 A.2d 847 (1975); Aunt Hack Ridge Estates, Inc. v. Planning Commission, supra, 116.

To address the defendant’s claim that the fire safety code exceeds the authority conferred by its enabling statute, a review of the original act, its relevant amendment and the relevant code provision is necessary. In 1947, the legislature passed Public Acts 1947, No. 419, which provided that “[t]he state fire marshal shall establish a fire safety code and at any time may amend the same. The regulations in said code shall provide for reasonable safety from fire, smoke, and panic therefrom, in all buildings except in private dwellings occupied by one or two families, and upon all premises except those used for manufacturing.” General Statutes (1949 Rev.) § 3665. The purpose of the statute was to give the fire marshal the ability to enact reasonable minimum requirements for safety in new and existing buildings. 2 H.R. Proc., 1947 Sess., pp. 324-25.

For almost thirty years, this act remained substantially unchanged. In 1976, however, the legislature passed No. 76-78 of the 1976 Public Acts (Public Act No. 76-78) which amended § 20-40, the predecessor of § 29-292, mandating, in relevant part, that the regulations “shall include provision for smoke detection systems in residential buildings designed to be occupied by two or more families for which a building permit is issued on or after [October 1, 1976].”

The fire safety code, passed pursuant to § 29-292, requires that smoke detectors be installed in “each guest room, suite or sleeping area of hotels, motels, lodging or rooming houses, and dormitories, and in each dwelling unit within apartment houses and one- and two-family dwellings . . . . ” Connecticut State Fire Safety Code (1981) § 11-1.8.1.

The defendant contends that the enabling statute, as amended by Public Act No. 76-78, limits the fire marshal’s ability to promulgate regulations concerning smoke detectors in buildings designed to be occupied by two or more families to those buildings for which a building permit has been issued on or after October 1, 1976. Because the fire safety code does not require that smoke detectors be installed only in those buildings, the defendant argues that the code exceeds its express statutory authority.

There is no question that the legislature, in originally enacting § 29-292, conferred upon the fire marshal broad authority to pass rules and regulations to “provide for reasonable safety from fire, smoke and panic therefrom,” and that such a conferral was a valid delegation of authority. See Len-Lew Realty Co. v. Falsey, 141 Conn. 524, 529-30, 107 A.2d 403 (1954). Had the original statute been in effect during this case, there would be little doubt that the challenged fire safety code regulations would be valid. The legislature, however, amended the enabling statute in 1976. The question thus becomes whether the legislature, in passing Public Act No. 76-78, intended to limit the fire marshal’s authority to pass regulations with respect to smoke detectors for residential buildings designed to be occupied by two or more families.

In determining whether the legislature was limiting the authority of the fire marshal to promulgate regulations, we are guided by the well established principles of statutory construction which require us to ascertain and give effect to the apparent intent of the legislature. State v. Dolphin, 203 Conn. 506, 521, 525 A.2d 509 (1987); Beloff v. Progressive Casualty Ins. Co., 203 Conn. 45, 54, 523 A.2d 477 (1987); State v. Blasko, 202 Conn. 541, 553, 522 A.2d 753 (1987); Rhodes v. Hartford, 201 Conn. 89, 93, 513 A.2d 124 (1986). When the language of the statute is plain and unambiguous, we need look no further than the words themselves because we assume that the language expresses the legislature’s intent. State v. Dolphin, supra; State v. Blasko, supra; Johnson v. Manson, 196 Conn. 309, 316, 493 A.2d 846 (1985), cert. denied, 474 U.S. 1063, 106 S. Ct. 813, 88 L. Ed. 2d 787, reh. denied, 475 U.S. 1061, 106 S. Ct. 1290, 89 L. Ed. 2d 597 (1986). If, however, the language is unclear, we must ascertain the intent of the legislature by examining the language of the statute, its legislative history and the purpose the statute is to serve. State v. Dolphin, supra; Rhodes v. Hartford, supra; State v. Ellis, 197 Conn. 436, 445, 497 A.2d 974 (1985).

An examination of the statute fails to reveal whether the legislature, in enacting Public Act No. 76-78, intended to authorize the fire marshal in promulgating the fire safety code to require smoke detectors only in multifamily buildings for which a building permit was issued after October 1,1976, as the defendant claims, or, as the state argues, intended to set a minimum standard for the installation of smoke detectors and allow the fire marshal to set additional standards regarding smoke detectors.

The state contends that the plain language of the amendment demonstrates that the legislature did not intend to limit the authority of the fire marshal, but rather intended the amendment to direct that “the Code include at least that class of buildings.” (Emphasis added.) The state argues that the amendment’s language that the regulations “shall include provision for smoke detection systems” (emphasis added) mandated that the fire marshal at least include such a regulation in the code, but did not proscribe him from further regulating in that area. The state claims that the word “include” is a word of enlargement, not one of limitation, and cites to Webster’s Third New International Dictionary, which defines “include” as “to place, list or rate as part or component of a whole or larger group, class or aggregate ... to take in, enfold, or comprise as a discrete or subordinate part or item of a larger aggregate . . . .”

We have recognized in the past, however, that the word “include” may be considered a word of limitation as well as a word of enlargement. Maciejewski v. West Hartford, 194 Conn. 139, 147, 480 A.2d 519 (1984); Hartford Electric Light Co. v. Sullivan, 161 Conn. 145, 150, 285 A.2d 352 (1971). In Hartford Electric Light Co. v. Sullivan, supra, we recognized that the most likely common use of the term “shall include” is one of limitation. In that case, however, we could not conclude with certainty that it was so employed. Id. Similarly, in the present case we cannot conclude that the word “include” is used as a word of limitation or a word of enlargement.

Because we find the legislative intent unclear from the language of the statute itself, we must turn to other tools of statutory interpretation. Unfortunately the legislative history of Public Act No. 76-78 is of little help. While debate on the amendment indicates that it was enacted to require smoke detectors in all new buildings occupied by two or more families for which a building permit was issued after the enumerated date; 19 S. Proc., Pt. 2, 1976 Sess., pp. 552-53; see also 19 H.R. Proc., Pt. 4,1976 Sess., pp. 1327-28; it does not indicate whether the legislature intended to preclude the fire marshal from further promulgating regulations for the installation of smoke detectors in other multifamily buildings.

We find it significant, however, that the legislature chose to delineate carefully the types of buildings in which it required the installation of smoke detectors, rather than to mandate generally the installation of smoke detectors and to defer to the fire marshal’s authority the promulgation of such regulations. When a statute provides that a thing shall be done in a certain way, it carries with it an implied prohibition against doing that thing a different way. State ex rel. Barlow v. Kaminsky, 144 Conn. 612, 620, 136 A.2d 792 (1957); New Haven v. Whitney, 36 Conn. 373, 375 (1870); see State v. Kish, 186 Conn. 757, 765, 443 A.2d 1274 (1982). “An enumeration of powers in a statute is uniformly held to forbid things not enumerated. State ex rel. Morris v. Buckeley, 61 Conn. 287, 367, 23 A. 186 [1892].” State ex rel. Barlow v. Kaminsky, supra. Had the General Assembly intended that the fire marshal be allowed to promulgate more comprehensive regulations, it could easily have broadened the requirements for smoke detector regulations. Instead it specifically set forth that smoke detectors were required in buildings for which building permits were issued on or after October 1, 1976.

Moreover, we agree with the defendant that, because § 29-292 is penal in nature, the statute and the code provision should be construed strictly and we should resolve any ambiguity in the defendant’s favor. See State v. McGann, 199 Conn. 163, 177, 506 A.2d 109 (1986); State v. Rawls, 198 Conn. 111, 122, 502 A.2d 375 (1985). The fact that this statute has a penal component cannot be seriously doubted, as demonstrated by the defendant’s conviction. See General Statutes § 29-295. Thus, because the legislative intent behind Public Act No. 76-78 is not entirely clear, we construe § 29-292 to limit the fire marshal’s authority in passing regulations with regard to the installation of smoke detectors. Section 29-292, as amended by Public Act No. 76-78, directed that the code provide regulations for smoke detectors in buildings designed for two or more families for which a building permit has been issued on or after October 1,1976. To the extent that fire safety code § 11-1.8.1 regulates beyond that legislative mandate, it exceeds the scope of its statutory authority. See General Statutes § 29-293. The defendant cannot be convicted of violating § 11-1.8.1 unless it is shown that a building permit had been issued for his building on or after the enumerated date. At trial no such evidence was introduced. Accordingly, the defendant’s convictions for such violations must be set aside.

III

The defendant also claims that his failure to install smoke detectors could not, as a matter of law, form the basis for his conviction of criminally negligent homicide in violation of General Statutes §§ 53a-58 and 53a-3 (14), because he had no duty to install the smoke detectors.

To be guilty of criminally negligent homicide, a person must cause the death of another while failing to perceive a substantial and unjustifiable risk that the death will occur. General Statutes §§ 53a-58, 53a-3 (14). The risk of death must be of such a nature and degree that disregarding it would constitute a gross deviation from the standard of conduct that a reasonable person would observe in the situation. General Statutes § 53a-3 (14). Accordingly, it is incumbent upon the state to establish that: (1) the defendant had a duty or an obligation under the law to conform to a certain standard of conduct; (2) the defendant grossly deviated from the standard of conduct; and (3) the deviation proximately caused the death of another. See generally W. LaFave & A. Scott, Criminal Law (1972) §§ 26, 30, 35; cf. W. Prosser & W. Keeton, Torts (5th Ed. 1984) §§ 30, 34; 2 Restatement (Second), Torts § 501.

To sustain a conviction for criminally negligent homicide, the court must first determine whether the defendant owed a duty or obligation to conform to a certain standard of conduct. Cf. Coburn v. Lenox Homes, Inc., 186 Conn. 370, 375, 441 A.2d 620 (1982); Behlman v. Universal Travel Agency, Inc., 4 Conn. App. 688, 691, 496 A.2d 962 (1985). The existence of such a duty is a question of law. Shore v. Stonington, 187 Conn. 147, 151, 444 A.2d 1379 (1982). The duty may arise from a contract, a statute, or circumstances under which a reasonable person, knowing what the defendant knew or should have known, would anticipate that harm of the general nature as that suffered was likely to result from his act or failure to act. Coburn v. Lenox Homes, Inc., supra; Neal v. Shiels, Inc., 166 Conn. 3, 12-13, 347 A.2d 102 (1974).

The state first contends that the Connecticut state fire safety code established the defendant’s duty to install smoke detectors in his building. As we have seen in part II of this decision, the defendant had no statutory duty to install smoke detectors because no building permit had been issued for his building on or after October 1, 1976. The state further contends that the defendant had a common law duty to provide smoke detectors in his building. While a landlord has a duty to use reasonable care to keep those parts of his building under his control in a reasonably safe condition; Cruz v. Drezek, 175 Conn. 230, 234-35, 397 A.2d 1335 (1978); Douglass v. 95 Pearl Street Corporation, 157 Conn. 73, 82, 245 A.2d 129 (1968); Noebel v. Housing Authority, 146 Conn. 197, 200-201, 148 A.2d 766 (1959); we find no duty imposed at common law requiring the landlord or owner of a budding to install smoke detectors. “At common law an owner has in general no duty to provide his building with any sort of firefighting equipment or warning system and so cannot be held liable for failing to do so.” (Emphasis in original.) Fireman’s Fund American Ins. Co. v. Almacenes Miramar, Inc., 649 F.2d 21, 25 (1st Cir. 1981); see Webster v. Heim, 80 Ill. App. 3d 315, 317, 399 N.E.2d 690 (1980) (failure to provide fire exits, smoke detection devices and fire doors was not negligence at common law); cf. Dundas v. Lincoln County, 48 Or. App. 1025, 618 P.2d 978, 984 (1980) (in absence of provision in lease imposing such an obligation, landlord under no duty to supply firefighting equipment for leased premises); Geer Co. v. Hall County Airport Authority, 193 Neb. 17, 23-24, 225 N.W.2d 32 (1975) (landlord has no duty at common law to equip and maintain leased premises with fire equipment apparatus); 49 Am. Jur. 2d 868, Landlord and Tenant § 891 (landlord under no duty at common law to equip or maintain building with fire apparatus and not liable for damage or injury resulting from failure to do so); but see Northern Lights Motel, Inc. v. Sweaney, 561 P.2d 1176, 1191-92 (Alaska 1976) (lack of smoke detectors in motel is relevant under ordinary negligence standard).

Liability based on criminal negligence presupposes a duty to act or to refrain from acting. If there is no duty, there can be no liability predicated upon that failure to act. Cf. Frankovitch v. Burton, 185 Conn. 14, 20, 440 A.2d 254 (1981); Behlman v. Universal Travel Agency, Inc., supra. Accordingly, because the defendant had no duty to install smoke detectors in his building, he cannot be convicted of criminally negligent homicide for having failed to do so.

There is error, the judgment is set aside and the case is remanded to the trial court with the order to grant the defendant’s motion for acquittal on all counts.

In this opinion the other justices concurred.

       The due process requirements of the federal and Connecticut constitutions have a common meaning and thus allow us to treat the questions on appeal as a single issue. Miller v. Heffernan, 173 Conn. 506, 516, 378 A.2d 572 (1977), appeal dismissed, 434 U.S. 1057, 98 S. Ct. 1226, 55 L. Ed. 2d 758 (1978).

       “[Connecticut State Fire Safety Code (Rev. to 1981)] 11-1.8 Smoke Detection and Warning Equipment.
      “11-1.8.1 In each guest room, suite or sleeping area of hotels, motels, lodging or rooming houses, and dormitories, and in each dwelling unit within apartment houses and one- and two-family dwellings, smoke detectors in addition to those required elsewhere in this code shall be provided as follows:
      “Each such guest room, suite, sleeping area or dwelling unit shall be provided with a minimum of one approved smoke detector installed in a manner and location approved by the local fire marshal and the responsible building official. When actuated, the detector shall provide an alarm suitable to warn the occupants within the individual guest room, suite, sleeping area, or dwelling unit.
      “Smoke detectors required by this section shall provide protection in accordance with NFPA-74/1978, and the documents required therein shall be furnished.”

       “[General Statutes] Sec. 29-296. (Formerly Sec. 29-44). variations or exemptions from code. The state fire marshal may grant variations or exemptions from, or approve equivalent or alternate compliance with, particular provisions of any regulation issued under the provisions of section 29-292 where strict compliance with such provisions would entail practical difficulty or unnecessary hardship, or is otherwise adjudged unwarranted, provided any such variation or exemption or approved equivalent or alternate compliance shall, in the opinion of the state fire marshal, secure the public safety.”

       “[General Statutes (Rev. to 1983)] Sec. 29-292. (Formerly Sec. 29-40). FIRE SAFETY CODE. SMOKE DETECTION AND WARNING EQUIPMENT. CERTIFICATE OF OCCUPANCY. REVIEW OF PLANS AND SPECIFICATIONS; FEES, (a) The state fire marshal and the codes and standards committee shall adopt, promulgate and administer a fire safety code and at any time may amend the same. The regulations in said code shall provide for reasonable safety from fire, smoke and panic therefrom, in all buildings and areas adjacent thereto except in private dwellings occupied by one or two families and upon all premises except those used for manufacturing, and shall include provision for smoke detection and warning equipment in residential buildings designed to be occupied by two or more families for which a building permit is issued on or after October 1,1976, and in new residential buildings designed to be occupied by one or more families for which a building permit for new occupancy is issued on or after October 1,1978, to provide Level Four Protection, as defined in the 1974 edition of Number Seventy-four of the National Fire Protection Association. Said regulations shall provide the requirements for markings and literature which shall accompany such equipment sufficient to inform the occupants and owners of such buildings of the purpose, protective limitations and correct installation, operating, testing, maintenance and replacement procedures and servicing instructions for such equipment and shall require that smoke detection and warning equipment which is installed in such residential buildings shall be capable of sensing visible or invisible smoke particles, that the manner and location of installing smoke detectors shall be approved by the local fire marshal or building official, that such installation shall not exceed the standards under which such equipment was tested and approved and that such equipment, when activated, shall provide an alarm suitable to warn the occupants.
      “(b) No certificate of occupancy shall be issued for any residential building designed to be occupied by two or more families for which a building permit is issued on or after October 1,1976, or any new residential building designed to be occupied by one or more families for which a building permit for new occupancy is issued on or after October 1,1978, unless the local fire marshal or building official has certified that said building is equipped with smoke detection and warning equipment complying with the fire safety code.
      “(c) Detailed plans and specifications of structures subject to the state fire safety code may be submitted to the state fire marshal for review and a determination concerning compliance with the state fire safety code. The state fire marshal shall develop a schedule of fees for reviewing such plans and specifications, which schedule shall provide for fees payable to the state treasurer in amounts of not less than ten dollars nor more than one hundred dollars, depending upon the complexity of the review.”

       In 1958, General Statutes § 3665 was transferred and set out as § 29-40 and in 1983 the statute was transferred and set out as § 29-292.

       On March 10,1987, the Code for Safety to Life from Fire in Buildings and Structures of the National Fire Protection Association, Inc., Standard 101,1985 edition, was adopted by reference as the Connecticut fire safety code. See Connecticut State Fire Safety Code § 29-292-1. For the purpose of this appeal, however, the code provisions as they existed at the time relevant to this action govern our disposition of the case.

       It is also noteworthy that the legislature chose to amend General Statutes § 29-292 subsequent to 1976, thus further requiring smoke detectors in other types of buildings.
      In 1977, the legislature passed Public Acts 1977, No. 77-334, which directed the fire safety code to include a provision requiring smoke detectors in “new residential buildings to be occupied by one or more families for which a building permit for new occupancy is issued on or after [October 1,1978].” And, in 1985, the legislature further mandated that the code include a provision for smoke detection equipment capable of operation using alternating current and batteries in “new residential buildings designed to be occupied by one or more families for which a building permit for new occupancy is issued after October 1,1985.” Public Acts 1985, No. 85-321, ¶ 1.

       We recognize that General Statutes § 29-292 et seq. are regulatory statutes which impose criminal liability, and as such the rule of strict construction must be balanced against the competing interest of effectuating the public policy of remedial statutes. Rhodes v. Hartford, 201 Conn. 89, 95, 513 A.2d 124 (1986). Rhodes, however, is distinguishable from the instant case in several respects. First, the legislative intent was more clearly ascertainable from the legislative history and purpose of the statute in question in Rhodes. Second, the plaintiff in Rhodes did not personally “run the risk of immediate criminal exposure,” as does the defendant in this case.Therefore, under the circumstances of this case, we conclude that any ambiguity must be resolved in the defendant’s favor.

       “[General Statutes] Sec. 29-295. (Formerly Sec. 29-43). penalty for VIOLATION OF CODE. Any person who violates any provision of the fire safety code shall be fined not less than two hundred nor more than one thousand dollars or imprisoned not more than six months or both.”

       “[General Statutes (Rev. to 1983)] Sec. 29-293. (Formerly Sec. 29-41). CODE TO SPECIFY MINIMUM REQUIREMENTS. ESTABLISHMENT OF FIRE zones. Said code shall specify reasonable minimum requirements for fire safety in new and existing buildings and facilities, and may, to ensure the reasonable safety of persons occupying or using any premises, open to the public, require the establishment of a fire zone for the orderly access to said premises of fire and other emergency equipment. Regulations may be in accordance with the size, type of construction and nature of use or occupancy of such buildings or facilities. No regulation made in accordance with sections 29-292 to 29-294, inclusive, shall be inconsistent with the provisions of the statutes nor impair the rights of municipalities to make orders with respect to buildings as provided in section 29-283, so far as such orders specify requirements consistent with the regulations issued under the authority of sections 29-292 to 29-294, inclusive.”

       “[General Statutes] Sec. 53a-58. criminally negligent homicide: class A misdemeanor, (a) A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person, except where the defendant caused such death by a motor vehicle.
      “(b) Criminally negligent homicide is a class A misdemeanor.”

       “[General Statutes] Sec. 53a-3. definitions. Except where different meanings are expressly specified, the following terms have the following meanings when used in this title ....
      “(14) A person acts with ‘criminal negligence’ with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation . . . .”


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    State of Connecticut v. Horace Andrews
    (13069)
    Peters, C. J., Healey, Santaniello, Dupont and Hadden, Js.
    Argued February 3
    decision released July 14, 1987

      Mark Matasavage, with whom were Paul Matasavage and, on the brief, John H. Gorman, for the appellant (defendant).

      James G. Clark, assistant state’s attorney, with whom were JohnM. Massameno, assistant state’s attorney, and, on the brief, Marcia Smith, assistant state’s attorney, for the appellee (state).
   Per Curiam.

The defendant, Horace Andrews, was charged with eight counts of criminally negligent homicide in violation of General Statutes § SSa-SS, and with three counts of failing to install smoke detectors in violation of General Statutes §§ 29-292 and 29-295 and in violation of Connecticut State Fire Safety Code § 11-1.8.1. After a trial to the court, the defendant was found guilty on all counts, was sentenced to a total effective term of one year, execution suspended after nine months, with three years probation, and was fined $500 on each of the eight counts of criminally negligent homicide. The defendant now appeals from the judgment of conviction.

The trial court, in its oral memorandum of decision, found the following facts: The defendant, at all relevant times, owned a three story apartment building at 901 North Main Street in Waterbury. During the late evening hours of November 10, 1984, or the early morning hours of November 11, 1984, a fire broke out in the second floor apartment. The fire, which started in a living room chair, was caused by some sort of “discarded smoking materials,” and smoldered before igniting. The fire was not discovered until approximately 1:30 a.m. when David Thompson, an occupant of the second floor apartment, awoke, coughing because of the smoke. By the time Thompson had discovered the fire, it was well past the smoldering phase, and the heat and flames were so intense that he could not enter the kitchen. Thompson attempted to arouse the rest of the occupants of the apartment and stated that had he been aware of the fire earlier, he would have been able to lead other members of the apartment to safety. Of the nine occupants living in the second floor apartment, five perished in the fire, the cause of death for each being asphyxia due to smoke inhalation.

Anna Mitchell, an occupant of the third floor apartment, became aware of the fire when she heard scuffling on the second floor and someone yelling “Fire!” Mitchell opened the front hallway door of her apartment, but was confronted with black smoke, heat and flames. She then went to the back hallway door, but was again faced with smoke, heat and fire. Although Mitchell escaped, three of the seven occupants of the third floor apartment died from asphyxia due to smoke inhalation. Mitchell also testified that had she been alerted to the fire earlier, she would have had the opportunity to lead the other occupants of the apartment to safety. The apartment building was not equipped with smoke detectors.

The trial court found that smoke detectors are designed to detect fires before persons become aware of them, and consequently, provide an early warning system for the detection of fires. Because smoldering fires take longer to reach intense proportions than fires of an explosive nature, the court concluded that had there been smoke detectors in the second and third floor apartments, the occupants would have been warned of the fire before it reached the level of intensity when first discovered by Thompson and Mitchell.

The court also found that the defendant knew or should have known that smoke detectors were required by the state fire safety code because he had received notice from the Waterbury health department regarding other properties he had owned, informing him that smoke detectors were required in those buildings. The court then determined that by not installing smoke detectors in the building located on 901 North Main Street, the defendant had violated Connecticut State Fire Safety Code § 11-1.8.1. Accordingly, the court found the defendant guilty of failing to provide smoke detectors in violation of General Statutes §§ 29-292 and 29-295 and in violation of Connecticut State Fire Safety Code § 11-1.8.1.

The trial court also found the defendant guilty on all eight counts of criminally negligent homicide in violation of General Statutes § 53a-58. Initially, the court reasoned that the defendant had both a statutory duty, imposed by the state fire safety code, and a common law duty to install smoke detectors in his apartment building, and had breached those duties by failing to do so. The court further ^reasoned that the state had proved beyond a reasonable doubt that the defendant’s negligence rose to the level of criminal negligence. Citing the conditions of the building, the inexpensive cost and relative ease of installing smoke detectors, and the increased chance of death from fire in buildings which do not have smoke detectors, the court concluded that the defendant had failed to perceive a substantial and unjustifiable risk of death and that such a failure was a gross deviation from the standard of care that a reasonable person would observe in the same situation. Additionally, the court held that the defendant’s failure to install the detectors was the proximate cause of the victims’ deaths. Accordingly, the court concluded that the defendant was criminally negligent as defined by General Statutes § 53a-3 (14).

Prior to trial, the defendant filed a motion to dismiss, claiming, inter alia, that the state fire safety code’s enabling act was unconstitutionally vague and that the state could not prove, as a matter of law, that the defendant was guilty of criminally negligent homicide for failing to install smoke detectors. The trial court denied the defendant’s motion in its entirety. At the close of the state’s case, the defendant unsuccessfully moved for a judgment of acquittal, claiming that the state had failed to prove beyond a reasonable doubt that the defendant had caused the victims’ deaths.

The defendant now appeals claiming that: (1) the pertinent statutes defining criminal culpability for violations of the state fire safety code are unconstitutionally vague and in violation of his right to due process; (2) the state fire safety code and General Statutes § 29-292 do not require that smoke detectors be installed in the defendant’s building because no building permit was issued for the building on or after October 1, 1976; (3) statutorily mandated inspections and notice of code violations must precede the enforcement of the fire safety code and its underlying criminal sanctions; (4) the trial court erred in denying the defendant’s motion for acquittal because he did not grossly deviate from the standard of care of a reasonably prudent person; (5) the court erred in denying the defendant’s motion for acquittal because the defendant’s conduct was not the proximate cause of the deaths of the victims; and (6) the court failed to disqualify itself after ruling on the defendant’s pretrial motions to dismiss. In accordance with our recent holding in State v. White, 204 Conn. 410, 528 A.2d 811 (1987), we find error.

There is error, the judgment of the trial court is set aside and the case is remanded with direction to render judgment of not guilty.

       “[General Statutes] Sec. 53a-58. criminally negligent homicide: class A misdemeanor, (a) A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person, except where the defendant caused such death by a motor vehicle.
      “(b) Criminally negligent homicide is a class A misdemeanor.”

       “[General Statutes (Rev. to 1985)] Sec. 29-292. (Formerly Sec. 29-40). FIRE SAFETY CODE. SMOKE DETECTION AND WARNING EQUIPMENT. CERTIFICATE OF OCCUPANCY. REVIEW OF PLANS AND SPECIFICATIONS; FEES, (a) The state fire marshal and the codes and standards committee shall adopt, promulgate and administer a fire safety code and at any time may amend the same. The regulations in said code shall provide for reasonable safety from fire, smoke and panic therefrom, in all buildings and areas adjacent thereto except in private dwellings occupied by one or two families and upon all premises except those used for manufacturing, and shall include provision for smoke detection and warning equipment in residential buildings designed to be occupied by two or more families for which a building permit is issued on or after October 1,1976, and in new residential buildings designed to be occupied by one or more families for which a building permit for new occupancy is issued on or after October 1,1978, to provide Level Four Protection, as defined in the 1974 edition of Standard Number Seventy-four of the National Fire Protection Association. Said regulations shall provide the requirements for markings and literature which shall accompany such equipment sufficient to inform the occupants and owners of such buildings of the purpose, protective limitations and correct installation, operating, testing, maintenance and replacement procedures and servicing instructions for such equipment and shall require that smoke detection and warning equipment which is installed in such residential buildings shall be capable of sensing visible or invisible smoke particles, that the manner and location of installing smoke detectors shall be approved by the local fire marshal or building official, that such installation shall not exceed the standards under which such equipment was tested and approved and that such equipment, when activated, shall provide an alarm suitable to warn the occupants, provided each hotel, motel or inn shall install or furnish such equipment which, when activated, shall provide a visible alarm suitable to warn occupants, in at least one per cent of the units or rooms in such establishment having one hundred or more units or rooms and in establishments having less than one hundred units or rooms, it shall install or furnish at least one such alarm.
      “(b) No certificate of occupancy shall be issued for any residential building designed to be occupied by two or more families for which a building permit is issued on or after October 1, 1976, or any new residential building designed to be occupied by one or more families for which a building permit for new occupancy is issued on or after October 1, 1978, unless the local fire marshal or building official has certified that said building is equipped with smoke detection and warning equipment complying with the fire safety code.
      “(c) Detailed plans and specifications of structures subject to the state fire safety code may be submitted to the state fire marshal for review and a determination concerning compliance with the state fire safety code. The state fire marshal shall develop a schedule of fees for reviewing such plans and specifications, which schedule shall provide for fees payable to the state treasurer in amounts of not less than ten dollars nor more than one hundred dollars, depending upon the complexity of the review.

       “[General Statutes] Sec. 29-295. (Formerly Sec. 29-43). penalty for violation of code. Any person who violates any provision of the fire safety code shall be fined not less than two hundred nor more than one thousand dollars or imprisoned not more than six months or both.”

       “[Connecticut State Fire Safety Code (Rev. to 1981)] 11-1.8 Smoke Detection and Warning Equipment.
      “11-1.8.1 In each guest room, suite or sleeping area of hotels, motels, lodging or rooming houses, and dormitories, and in each dwelling unit within apartment houses and one- and two-family dwellings, smoke detectors in addition to those required elsewhere in this code shall be provided as follows:
      “Each such guest room, suite, sleeping area or dwelling unit shall be provided with a minimum of one approved smoke detector installed in a manner and location approved by the local fire marshal and the responsible building official. When actuated, the detector shall provide an alarm suitable to warn the occupants within the individual guest room, suite, sleeping area, or dwelling unit.
      “Smoke detectors required by this section shall provide protection in accordance with NFPA-74/1978, and the documents required therein shall be furnished.”

       There was no evidence introduced at trial, however, that a building permit was issued for the defendant’s building on or after October 1, 1976.

       “[General Statutes] Sec. 53a-3. definitions. Except where different meanings are expressly specified, the following terms have the following meanings when used in this title ....
      “(14) A person acts with ‘criminal negligence’ with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

         The defendant argues that General Statutes § 29-292, which provides that the fire marshall and the codes and standards committee may amend the fire safety code at any time, and General Statutes § 29-296, which states in part that “the state fire marshall may grant variations or exemptions from . . . any regulation issued under the provisions of section 29-292,” are unconstitutionally vague because they allow for the arbitrary and discriminatory enforcement based upon the subjective opinions of the state fire marshall. The defendant, however, has neither sought an exemption or variance pursuant to § 29-296 nor has pointed to an amendment which has allowed for arbitrary enforcement against him.


author: Covello, J.

text:
    Wei Ping Wu, Administrator (Estate of Janet Wu) v. Town of Fairfield et al.
    (13124)
    Peters, C. J., Shea, Callahan, Glass and Covello, Js.
    Argued June 3
    decision released July 21, 1987

      Thomas L. Nadeau, for the appellant (plaintiff).

      Paul E. Pollock, for the appellees (defendant Aurelie LaPoint et al.).
   Covello, J.

Following the drowning of a fifteen year old girl, Janet Wu, the plaintiff, administrator of her estate, brought this wrongful death action under General Statutes § 7-465 against the town of Fairfield and various municipal employees. In his complaint, the plaintiff alleged that a public swimming area owned and operated by the town constituted a nuisance. He further alleged that the town and several of its employees were negligent in the performance of their duties. A jury returned a verdict for the defendants. The plaintiff then filed a motion to set aside the verdict as to the defendant lifeguards, which motion was denied.

On appeal, the plaintiff contends that: (1) the trial court’s charge to the jury erroneously perpetuated a distinction between ministerial and discretionary governmental functions when the legislature had abrogated such a distinction by the enactment of General Statutes § 7-465; (2) even if such a distinction survives, the trial court’s charge as to that issue was erroneous, unclear and incomplete; and (3) the trial court incorrectly assigned to the plaintiff the burden of disproving the defense of governmental immunity. The defendants advance on appeal two alternate grounds upon which the judgment may be affirmed; see Practice Book § 4013; first, that General Statutes § 52-557g renders the defendant lifeguards and the town immune from liability and, second, that the plaintiff failed at trial to prove proximate cause, a necessary element of his negligence claim. Because we agree with the defendants that the plaintiff failed to establish the essential element of proximate cause, we affirm the jury’s verdict and do not reach the other claims.

The jury could reasonably have found the following facts. On August 6,1977, the plaintiff’s decedent, Janet Wu, went to Lake Mohegan with her mother and two brothers for an afternoon of swimming. Lake Mohegan is a fresh water lake and beach owned and operated by the town of Fairfield as a recreational swimming facility.

On the day of the decedent’s death, twenty to thirty swimmers were in the water and four lifeguards were on duty. A buoy line, positioned where the water was approximately three and one-half to four and one-half feet deep, marked the shallow water area. Farther out, a series of unconnected buoys formed the outer limit of the permitted swimming area.

The defendants in this appeal are two municipal employees, lifeguard Aurelie LaPoint and beach captain Gary Burdett. They observed the decedent as a poor swimmer and twice on the day in question warned her to return to the shallow water area after she had ventured beyond the inner buoy line. The last time the defendants saw the decedent, she was standing just inside the inner buoy line in waist-deep water. Shortly thereafter, an approaching storm prompted the lifeguards to ask the swimmers to clear the water. When the decedent did not appear on shore, the lifeguards launched a search of the water. One lifeguard found the body near the base of an underwater slope beyond the shallow water buoy line but within the permitted swimming area. Approximately fifteen to thirty minutes elapsed between the last time the lifeguards saw the decedent and the drowning. The last person known to be with the decedent, her brother Frank Wu, did not testify at the trial, although he was available.

The plaintiff instituted this negligence action pursuant to General Statutes § 7-465, which establishes municipal liability for certain acts of employees. “A plaintiff bringing suit under General Statutes § 7-465 first must allege in a separate count and prove the employee’s duty to the individual injured and the breach thereof. Only then may the plaintiff go on to allege and prove the town’s liability by indemnification.” (Emphasis in original.) Sestito v. Groton, 178 Conn. 520, 527, 423 A.2d 165 (1979). “This is a personal liability requirement that calls for an inquiry independent of the statute itself, an inquiry into the factual matter of individual negligence. ” (Emphasis added.) Id., 528. Thus, in a suit under § 7-465, any municipal liability which may attach is predicated on prior findings of individual negligence on the part of the employee and the municipality’s employment relationship with that individual.

An essential element of any negligence action is the establishment of the defendant’s conduct as a proximate cause of the plaintiffs injury. Hearl v. Waterbury YMCA, 187 Conn. 1, 4, 444 A.2d 211 (1982); W. Prosser & W. Keeton, Torts (5th Ed.) § 41, p. 263. “The causal relation between the defendant’s wrongful conduct and the plaintiff’s injuries must be established in order for the plaintiff to recover damages.” Vetre v. Keene, 181 Conn. 136, 139, 434 A.2d 327 (1980). “In Connecticut, the test of proximate cause is whether the defendant’s conduct is a substantial factor in bringing about the plaintiff’s injuries.” Nelson v. Steffens, 170 Conn. 356, 363, 365 A.2d 1174 (1976) (Bogdanski, J., dissenting); see also Hearl v. Waterbury YMCA, supra. Further, it is the plaintiff who bears the burden “to prove an unbroken sequence of events that tied his injuries to the [defendants’ conduct].” Boehm v. Kish, 201 Conn. 385, 392, 517 A.2d 624 (1986); see also W. Prosser & W. Keeton, supra, p. 269. “ ‘The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection.’ ” Peterson v. Oxford, 189 Conn. 740, 749, 459 A.2d 100 (1983). This causal connection must be based upon more than conjecture and surmise. Vetre v. Keene, supra, 140-41.

In the present case, the trial court submitted interrogatories to the jury which were to accompany their verdict. According to the jury’s answers to these interrogatories, the jury found that three of the four non-lifeguard defendants had breached their duties of care but that such breach was not the proximate cause of the decedent’s death. These defendants are not parties to this appeal. As to the defendant lifeguards who are parties to this appeal, the jury responded that they had not breached any duty of care. The jury, therefore, did not reach the issue of proximate cause as to these defendants. We agree, however, with the defendants that the plaintiff did not present sufficient evidence that any breach of duty on the lifeguards’ part was the proximate cause of the death. Accordingly, even if we were to find error on any of the issues raised by the plaintiff, we would still have to affirm the jury’s verdict based on the plaintiff’s failure to establish an essential element of his negligence claim.

At trial, the plaintiff introduced no evidence to show what caused the decedent to slip below the water’s surface. When the defendant lifeguards last saw the decedent, she was standing safely within the inner buoy line in waist-deep water. She was found dead at the bottom of the lake after the water had been cleared of swimmers due to the oncoming storm. Neither of the defendant lifeguards witnessed the drowning, nor was there evidence to suggest that anyone else did. Although the plaintiff produced one expert witness who testified that an observable struggle generally accompanies drowning, the plaintiff presented no evidence that the decedent manifested any recognizable or observable difficulty. The decedent’s brother, Frank Wu, was the last person known to be with her. He did not testify at the trial, however, although he was available. “[A]ny one of a number of factual possibilities may explain the actual cause of [an] accident.” Boehm v. Kish, supra, 392. While it is undisputed that the decedent drowned, there was no evidence tying any negligence on the defendant lifeguards’ part to her death. “[0]nly speculation and conjecture could link the plaintiff’s injuries to the conduct of the defendants.” Id. As in Boehm, “the evidence at most supports an inference that an accident has [occurred during the defendants’ supervision], not that one was produced by the other. The plaintiff has provided no definite basis in the facts from which to draw the latter conclusion.” Id., 393.

Here, the plaintiff presented no evidence other than that the victim perished in an unwitnessed drowning. The plaintiff failed to establish an unbroken sequence of events causally flowing from the defendant lifeguards’ arguably negligent supervision to the decedent’s drowning. We therefore conclude that the jury’s verdict was one they could fairly and reasonably have reached. “On review of an allegedly inadequate verdict the Supreme Court decides only whether, on evidence presented, the jury could fairly reach the conclusion they did . . . .” Vetre v. Keene, supra, 141. In light of our view of the jury’s verdict we decline to set it aside.

The establishment of proximate cause is an essential element of a negligence claim and the parties recognize that if proximate cause is lacking, the plaintiff cannot prevail. Because of our conclusion regarding the establishment of proximate cause in this case, we need not consider the plaintiffs three claims of error. “Even if we were to have concluded that the trial court based its judgment on erroneous grounds, we would properly affirm the judgment ‘if the same result is required by law.’ ” Pepe v. New Britain, 203 Conn. 281, 292, 524 A.2d 629 (1987), quoting A & H Corporation v. Bridgeport, 180 Conn. 435, 443, 430 A.2d 25 (1980); Morris v. Costa, 174 Conn. 592, 597-98, 392 A.2d 468 (1978).

There is no error.

In this opinion the other justices concurred.

       General Statutes § 7-465 provides in pertinent part: “(a) Any town, city or borough, notwithstanding any inconsistent provision of law, general, special or local, shall pay on behalf of any employee of such municipality, except firemen covered under the provisions of section 7-308, all sums which such employee becomes obligated to pay by reason of the liability imposed upon such employee by law ... if the employee, at the time of the occurrence, accident, physical injury or damages complained of, was acting in the performance of his duties and within the scope of his employment, and if such occurrence, accident, physical injury or damage was not the result of any wilful or wanton act of such employee in the discharge of such duty. . . .”

       The four nonlifeguard defendants were the town’s acting director of health, director of recreation, shoreline director, and assistant shoreline director.


author: Peters, C. J.

text:
    State of Connecticut v. John A. McGraw
    (12935)
    Peters, C. J., Healey, Shea, Glass and Covello, Js.

      Argued June 2
    decision released July 21, 1987

      Michael Sherman, with whom, on the brief, was John J. Graubard, for the appellant (defendant).

      Leah Hawley, deputy assistant state’s attorney, with whom, on the brief, was Andrew Sherriff, assistant state’s attorney, for the appellee (state).
   Peters, C. J.

The sole issue on this appeal is the extent to which the state, in its cross-examination of a defendant’s character witness, may refer to a defendant’s prior arrest for unrelated misdemeanors. The defendant, John A. McGraw, was charged with one count of burglary in the second degree in violation of General Statutes § 53a-102, and four counts of sexual assault in the first degree in violation of General Statutes § 53a-70. At his first trial, the jury was unable to reach a verdict. The second trial resulted in a conviction on all counts. The defendant appeals from this judgment. We find no error.

The jury could reasonably have found the following facts. On January 1, 1985, the defendant entered the victim’s apartment in Wilton, awakened her and sexually assaulted her. The victim knew the defendant because he was her tenant at the time of the assault.

At the trial, the defendant admitted having had sexual relations with the victim. He maintained, however, that the victim had consented to their sexual activity and that the acts in question had taken place in her car and not in her apartment.

The trial court made certain evidentiary rulings that are central to this appeal. These rulings arose in the following circumstances. After the defendant had testified on his own behalf, he offered his brother-in-law, Raymond W. Fitzgerald, as a character witness. On direct examination by counsel for the defendant, the witness testified as follows:

“Q. Are you aware of what [McGraw’s] reputation is in the Wilton community?
“A. Yes.
“Q. What is that reputation?
“A. He’s a quiet—quiet and more or less kept to himself, honest, good kid. Most of the people in Wilton feel that way, that I know anyway.
* * *
“Q. . . . What’s your opinion of John McGraw’s character right now?
“A. The same. I still think he’s a very well brought up kid, very nice.”

At the end of Fitzgerald’s direct testimony, the state’s attorney, outside the presence of the jury, sought permission from the trial court to ask Fitzgerald whether he knew that the defendant had been arrested for eight counts of forgery in the third degree, a class B misdemeanor; General Statutes § 53a-140; and eight counts of illegal use of a credit card, a class A misdemeanor. General Statutes § 53a-128d. Defense counsel objected to this proposed questioning on three grounds. He questioned its probative value, since the allegations concerned an arrest and not a conviction. He questioned its relevance, since the arrest involved was unrelated to the specific charge of sexual assault presently on trial. Finally, he maintained that the prejudicial effect of this evidence would outweigh its probative value. The court ruled, in favor of the state, that the state’s attorney was entitled to refer to the defendant’s arrest for forgery and illegal use of a credit card in cross-examining Fitzgerald about the basis for his testimony about the defendant’s honesty. To minimize the risk of prejudice to the defendant, the court precluded any mention in open court of the number of counts involved in the defendant’s arrest. The defendant took proper exception to this ruling.

The state’s attorney then cross-examined Fitzgerald as follows:

“Q. Now on direct examination you testified that your brother-in-law had a reputation for being honest?
“A. That’s right.
“Q. You wouldn’t lie for your brother-in-law, would you?
“A. No.
“Q. You wouldn’t lie for your wife, would you?
“A. No.
“Q. When you testified in that manner, were you aware that your brother-in-law had been arrested for forgery in the third degree?
“A. Yes.
“Q. And that doesn’t change your testimony . . . . That doesn’t change your mind in terms of his reputation for honesty, the fact that he was arrested for forgery in the third degree, does it?
“A. No.
“Q. And when you testified in that manner were you aware that your brother-in-law had been arrested for illegal use of a credit card?
“A. Yes.
“Q. And that doesn’t affect his reputation for honesty in your opinion, does it?
“A. No.”

The defendant’s appeal from his conviction renews the arguments that he made at trial regarding the impropriety of the cross-examination of his character witness concerning his arrest on charges of forgery and illegal use of a credit card. He claims that the trial court erred in permitting this cross-examination because: (1) the state’s questions attacked the defendant’s credibility and thus should have been raised, if at all, to impeach him when he was testifying, and not to discredit his character witness; (2) the state’s evidence did not relate to the specific traits involved in the crime with which he had been charged; and (3) admission of the prior misconduct evidence was more prejudicial than probative. Finally, the defendant asserts that the trial court’s erroneous evidentiary ruling was so prejudicial that his conviction must be set aside and a new trial ordered. We conclude that the trial court’s ruling was not in error.

I

The defendant’s first claim is that the purpose of the state’s questions was to attack the defendant’s credibility. The defendant further argues that if the state wanted to use the arrest to impeach the defendant, it should have introduced evidence of it during his testimony so that he would have had the opportunity to explain the circumstances surrounding the arrest.

The premise of the defendant’s argument is that the state referred to the defendant’s arrest during its cross-examination of his brother-in-law, Fitzgerald, in order to impeach the defendant’s own testimony. Our law limits the ways in which the state may impeach the credibility of a defendant who has taken the stand. In particular, extrinsic evidence of prior acts of misconduct is not admissible to attack his or her veracity. See State v. Martin, 201 Conn. 74, 86, 513 A.2d 116 (1986); State v. Guthridge, 164 Conn. 145, 157, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S. Ct. 1519, 36 L. Ed. 2d 186 (1973); Martyn v. Donlin, 151 Conn. 402, 408, 198 A.2d 700 (1964).

The defendant’s argument, however, confuses an attack by the state on the credibility of a defendant who testifies on his or her own behalf, with an attack on a character witness called by the defendant who testifies as to the defendant’s reputation for honesty. When a defendant calls a character witness to testify to a particular trait, the defendant opens the door for the state to cross-examine the witness by reference to prior acts of misconduct relevant to that trait. See Michelson v. United States, 335 U.S. 469, 479, 69 S. Ct. 213, 93 L. Ed. 168 (1948); State v. Turcio, 178 Conn. 116, 126-27, 422 A.2d 749 (1979), cert. denied, 444 U.S. 1013, 100 S. Ct. 661, 62 L. Ed. 2d 642 (1980); State v. Martin, 170 Conn. 161, 164-65, 365 A.2d 104 (1976). The purpose of such cross-examination is not to contest the defendant’s own veracity but rather to test the basis of the opinion offered by the character witness. See Michelson v. United States, supra; State v. Turcio, supra; State v. Martin, 170 Conn. 161, 164-65, 365 A.2d 104 (1976).

In this case, the defendant, when he called Fitzgerald to testify regarding the defendant’s reputation in the community, elicited testimony from Fitzgerald concerning his view of the defendant as an honest person. That testimony opened the door for the state to cross-examine Fitzgerald by reference to prior acts of misconduct bearing on the trait of honesty. As did the trial court, we conclude that the state’s references to the defendant’s arrest for forgery and illegal use of a credit card during its cross-examination of Fitzgerald were not intended to focus on the defendant’s credibility; they were intended, instead, to explore the basis of Fitzgerald’s opinion that the defendant had a reputation for honesty. The phrasing “were you aware” and the follow-up question whether the fact of the arrest changed the witness’ opinion of the defendant’s reputation for honesty indicate that the prosecution sought to test the basis of Fitzgerald’s opinion, not to challenge the defendant’s credibility. Cf. State v. Turcio, supra, 126; State v. Martin, 170 Conn. 161, 165, 365 A.2d 104 (1976).

II

Alternatively, the defendant contends that the cross-examination of the character witness was improper because the state’s evidence did not relate to the crime charged. He argues that forgery and illegal use of a credit card implicate the defendant’s honesty, a character trait that is irrelevant to the crime of sexual assault.

The rules governing the admissibility of character evidence are well established. A defendant is permitted to put a character trait into issue by proffering the testimony of a character witness to prove that it is unlikely that the defendant committed the crime charged. See State v. Blake, 157 Conn. 99, 103-104, 249 A.2d 232 (1968). To be admissible, the character evidence that a defendant seeks to introduce must be limited to specific traits and relevant to the offense charged. See State v. Turcio, supra, 127; State v. Martin, 170 Conn. 161, 165, 365 A.2d 104 (1976); State v. Blake, supra. During its cross-examination of that witness, the state, in turn, may not refer to acts of misconduct that are irrelevant to the traits that the defendant has placed in evidence. See State v. Turcio, supra; State v. Martin, 170 Conn. 161, 165-66, 365 A.2d 104 (1976). The state, nevertheless, is not required to limit itself to acts relevant to the offense charged if the defendant introduces evidence of good character going beyond traits that are salient to the crime charged. “It is not only by comparison with the crime on trial but by comparison with the reputation asserted that a court may judge whether the prior arrest should be made subject of inquiry. . . . The cross-examination may take in as much ground as the testimony it is designed to verify. To hold otherwise would give the defendant the benefit of testimony that he was honest and law-abiding in reputation when such might not be the fact . . . .” Michelson v. United States, supra, 483-84. We conclude that an arrest on charges of forgery and illegal use of a credit card is relevant to honesty, the trait that the defendant put in issue in this case, and that, therefore, the scope of the cross-examination did not exceed the scope of the direct examination of the defendant’s character witness.

The defendant maintains that his original question to the witness regarding the defendant’s general reputation in the community was improper insofar as it evoked a response relating to the defendant’s honesty. In the defendant’s view, the state’s only recourse was to object and to move to strike such testimony from the record. The state responds that it was entitled to explore the question of honesty once the defendant interjected that issue into the trial. We agree with the state that the defendant himself had a full opportunity to move to strike the improper testimony but did not avail himself of it. “The price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him.” Michelson v. United States, supra, 479.

III

The defendant’s final claim is that admission of the prior acts of misconduct was more prejudicial than probative. At the first trial the jury was unable to arrive at a verdict, whereas the second trial resulted in a conviction. The defendant argues that the only significant difference between the two trials was the state’s questions regarding the defendant’s prior arrest, and that prejudice to the defendant from admission of the evidence is thus demonstrated. We are not persuaded.

A trial court has broad discretion in determining whether the probative value of proffered evidence is outweighed by the prejudice that is likely to result from its admission. See State v. Turcio, supra, 128; State v. Martin, 170 Conn. 161, 166, 365 A.2d 104 (1976). We will not overturn its decision absent an abuse of discretion. See State v. Turcio, supra, 127; State v. Martin, 170 Conn. 161, 166, 365 A.2d 104 (1976). In this case, the trial court, by prohibiting the state from delving into the number of counts or into any other particulars of the defendant’s prior arrest, ensured that the questions contained no more detail than was necessary to apprise the witness of the incidents to which the state was referring. The risk of prejudice was minimized by preventing the jury from hearing anything other than the bare bones of the charges for which the defendant had been arrested. Cf. State v. Turcio, supra, 126; State v. Martin, 170 Conn. 161, 165, 365 A.2d 104 (1976). As to the defendant’s claim that the different outcomes of the two trials demonstrate prejudice resulting from admission of the arrest, we decline to engage in the speculative exercise that this argument invites. We conclude that the trial court did not abuse its discretion when it allowed the state to cross-examine the character witness by reference to the defendant’s prior arrest for the limited purpose of testing the basis of the witness’ testimony concerning the defendant’s honesty.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 53a-102 provides: “burglary in the second degree: class c felony, (a) A person is guilty of burglary in the second degree when he enters or remains unlawfully in a dwelling at night with intent to commit a crime therein. . . .”

       General Statutes § 53a-70 provides: “sexual assault in the first degree: class b felony: one year not suspendable. (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person. . . .”

       The defendant does not claim that the state introduced the evidence of prior misconduct to prove that the defendant had a criminal character and, consequently, had a propensity to commit the offense charged.

       A party is permitted on cross-examination to attack the credibility of a witness by reference to specific acts of misconduct of that witness. See State v. Martin, 201 Conn. 74, 85-86, 513 A.2d 116 (1986); State v. Guthridge, 164 Conn. 145, 157, 318 A.2d 87 (1972), cert. denied, 410 U.S. 988, 93 S. Ct. 1519, 36 L. Ed. 2d 186 (1973); Martyn v. Donlin, 151 Conn. 402, 408, 198 A.2d 700 (1964). Both the state and the defendant assume that evidence of the defendant’s arrest would have been admissible during the state’s cross-examination of the defendant. Our law has been stated to be to the contrary. See State v. Annunziato, 169 Conn. 517, 524, 363 A.2d 1011 (1975).

       The defendant might well have asked the trial court for instructions limiting the use to which the jury could put the cross-examination referring to the defendant’s arrest. Such limiting instructions might be given at the time of the state’s cross-examination, at the time of the trial court’s charge to the jury, or at both times.


text:
    Ilse Beer Schapira v. Connecticut Bank and Trust Company et al.
    (13102)
    Peters, C. J., Healey, Shea, Glass and Covello, Js.

      Argued June 2
    decision released July 21, 1987

      Jeffrey L. Crown, for the appellant (plaintiff).

      P. Michael Lahan, for the appellee (defendant Milton L. Jacobson).

      Steven M. Greenspan, for the appellee (named defendant).
   Peters, C. J.

The sole issue on this appeal is whether an adopted child is entitled to a remainder interest distributable in accordance with the terms of an irrevocable inter vivos trust created in 1919. The plaintiff, Ilse Beer Schapira, brought an action for a declaratory judgment to determine whether she, as an adopted child, could take as “issue then living” under a trust agreement providing for distribution upon the death of a life beneficiary. The defendants are the Connecticut Bank and Trust Company, which serves as the trustee of the trust, and Milton L. Jacobson, who, as conservator of the estate of Eva Virginia Smith, claims a competing right to the entire remainder interest. After a trial to the court, judgment was rendered for both defendants. The plaintiff appealed to the Appellate Court. This court transferred the appeal to itself. We find no error.

The facts are undisputed. On May 9,1919, Leonard O. Smith, as settlor, created an inter vivos trust (the trust) and named the predecessor of the defendant Connecticut Bank and Trust Company as trustee. The corpus of the trust consisted of 471 shares of capital stock in several major oil companies. The trust directed the trustee to divide the corpus into three equal parts and to distribute the income equally among three beneficiaries: the settlor’s wife, Eva Crowell Smith, and two daughters, Eloise Crowell Smith (known after marriage as Eloise C. S. Beer), and Eva Virginia Smith. Pursuant to the third article of the trust, after the death of the settlor’s wife in 1943, her one third interest was divided equally between the two daughters.

Article four of the trust established the rights of Eloise Crowell Smith, the settlor’s daughter, and her issue. The trust directed the payment of income to Eloise during her life. Upon her death, her share of the principal was to “be divided, per stirpes, among her issue then living” unless she was survived by a child or children under the age of twenty-one. In the event that Eloise died without issue and was not survived by her mother, her part of the principal was to be paid to the settlor’s other daughter, Eva Virginia Smith.

Finally, article six of the trust provided that if both daughters died without issue and neither was survived by their mother, the assets were to be distributed “to the next of kin of the said Donor” as defined by state law in effect at the time of distribution. This provision does not govern the distribution of the assets because Eloise is survived by her sister Eva.

The plaintiff was the niece of Sanel Beer, whom Eloise married in 1942. The plaintiff and Sanel Beer had immigrated together to the United States from Austria in 1938. Sanel and Eloise C. S. Beer formally adopted the plaintiff in 1956; she was then thirty-six years old. On September 5,1979, Eloise died, leaving the plaintiff as her only child.

It is apparent from these undisputed facts that the settlor of the trust, who died in 1925, had no knowledge of the plaintiff’s adoption. The plaintiff contends that he nonetheless intended to include her within the class described as “issue then living” at the time of the death of Eloise. The defendant Jacobson, as conservator for Eva, argues, to the contrary, that Eloise died without issue and that Eva is therefore entitled to the one half interest created initially for the benefit of Eloise and her “issue then living.”

The trial court rendered judgment for the defendants. The court determined that the term “issue” primarily signifies descendants of the body, and that in the absence of a contrary intent of the settlor, adopted children are presumed to be excluded. Applying the so-called “stranger to the adoption” doctrine, the court ruled that because the settlor was not himself the adopting parent, and the adoption occurred after the settlor’s death, the plaintiff had failed to prove that the settlor specifically meant to share his bounty with adopted grandchildren. Additionally, the court concluded that the law in effect at the time of distribution of the trust in 1979 did not warrant a judgment in favor of the plaintiff. Finally, the trial court held that the trust’s direction, in article six, to distribute the corpus to statutory heirs in the event that both daughters died without issue did not illuminate the meaning to be ascribed to “issue” under article four.

On appeal, the plaintiff claims that the trial court erred in: (1) excluding her from the meaning of “issue” in article four of the trust; (2) failing to apply the law in effect at the death of the life beneficiary to define the meaning of “issue” in article four; and (3) relying on the “stranger to the adoption” doctrine to presume that the settlor meant to exclude an adopted grandchild from the meaning of “issue” in article four. We find no error.

I

The plaintiffs first claim is that the trial court misconstrued the intent of the settlor by holding that an adopted grandchild was not within the meaning of “issue” in article four. We disagree.

In construing the word “issue,” we have often noted that, in its primary meaning, “issue” connotes lineal relationship by blood. Connecticut Bank & Trust Co. v. Hills, 157 Conn. 375, 378, 254 A.2d 453 (1969); Bankers Trust Co. v. Pearson, 140 Conn. 332, 356, 99 A.2d 224 (1953); Trowbridge v. Trowbridge, 127 Conn. 469, 472, 17 A.2d 517 (1941). Significantly, the common law presumed that an adopted child is not within the intended bounty of a settlor who, as a nonadopting parent, is a stranger to the adoption. Mooney v. Tolles, 111 Conn. 1, 9, 149 A. 515 (1930); Middletown Trust Co. v. Gaffey, 96 Conn. 61, 67-68, 112 A. 689 (1921).

These common law presumptions do not invariably govern interpretation of the terms of a will. Because the touchstone of trust interpretation is the intent of the settlor, the presumptions in favor of ancestral blood give way when an intent to include adoptees “definitely appears from a reading of the instrument in light of the circumstances surrounding the settlor at the time of execution.” Connecticut Bank & Trust Co. v. Bovey, 162 Conn. 201, 206, 292 A.2d 899 (1972); see also Connecticut Bank & Trust Co. v. Lyman, 148 Conn. 273, 279, 170 A.2d 130 (1961). We have held on several occasions that language ordinarily indicating a preference for ancestral blood can be shown to include adoptees. Parker v. Mullen, 158 Conn. 1, 4-5, 255 A.2d 851 (1969); Mooney v. Tolles, supra, 10-11; Ansonia National Bank v. Kunkel, 105 Conn. 744, 753-54, 136 A. 588 (1927).

The plaintiff argues that an intent to include adoptees can be discerned in this case in article six of the trust agreement. That article provides for the distribution of the trust assets to the “next-of-kin” or statutory heirs of the settlor in the event that both daughters die without issue. Since adoptees were entitled to take as statutory heirs at the time of the execution of the trust instrument; Close v. Benham, 97 Conn. 102, 105-106, 115 A. 626 (1921); the plaintiff reasons that the settlor implicitly intended to modify the meaning of “issue” in article four by referring to a broader category of statutory heirs in article six. We are not persuaded. Article six, by its own terms, becomes operative only if both of the settlor’s daughters die without issue. The primary intent of the settlor, clearly evident in articles three, four and six, was to benefit his wife, two daughters and any surviving “issue” of his daughters. The trust did not provide that upon the death of Eloise the trust assets held for her were to go directly to her statutory heirs or “next-of-kin.” Only upon the death of any and all surviving descendants of the settlor’s body were the assets to be statutorily distributed. The trust itself draws a valid distinction between “issue” in article four and “next-of-kin” in article six. To overlook this clear distinction would do violence to the intention expressed in the trust instrument.

II

The plaintiff next makes a two part claim that the meaning of “then living issue” in article four is to be determined with reference to the law in effect at the time of distribution upon Eloise’s death in 1979. The plaintiff first argues that the trust instrument, by its use of the phrase “then living,” postponed the vesting of the trust until the death of the life tenant. Building upon this predicate, the plaintiff then asserts that the governing law in 1979 must determine the definition of “issue.” These arguments do not establish that the trial court’s judgment was in error.

As a general rule, a remainder to be distributed to a class of beneficiaries at the termination of a life estate vests upon the creation of the trust or as soon thereafter as a remainderman comes into existence. Hartford National Bank & Trust Co. v. VonZiegesar, 154 Conn. 352, 358, 225 A.2d 811 (1966). This preference in favor of early vesting is only a rule of construction, however, and must give way to a contrary intent disclosed in the trust instrument. Id., 358-59.

Under the circumstances presented by this case, nevertheless, we need not decide whether the trust instrument discloses an intent for late vesting. Similarly, we need not decide whether the law effective upon the termination of a life estate in a late vesting case would dictate the meaning of a particular word drafted sixty years before. These questions are of hypothetical interest only because, even if they were both resolved in favor of the plaintiff, she could not prevail.

In 1979, when the life tenant in this case died, the controlling statute regarding the meaning of “issue”; General Statutes § 45-64a (4); had reversed the common law presumption excluding adopted children from use of such words as “child,” “children” or “issue” in a will or trust instrument. In enacting § 45-64a, the legislature had, however, expressly limited the statute’s operation to “any will or trust instrument executed subsequent to October 1, 1959 . . . .” Because the trust instrument in this case, executed in 1919, clearly falls outside the scope of General Statutes § 45-64a (4), the common law presumption as to the meaning of “issue” controls. Connecticut Bank & Trust Co. v. Bovey, supra, 208; Parker v. Mullen, supra, 5 n.1.

Ill

The plaintiff finally urges us to repudiate the “stranger to the adoption” doctrine under which a testator or settlor other than the adopting parent is presumed not to intend to share his bounty with adopted children. The plaintiff acknowledges, as she must, that General Statutes § 45-64a, which statutorily extinguished the “stranger to the adoption” doctrine, does not apply retroactively. Connecticut Bank & Trust Co. v. Bovey, supra, 209. In Bovey, we stated that the legislature, in setting a fixed prospective date for abandoning the common law presumption of intent, recognized a “need for orderly transition” that outweighs the benefits to be derived from an immediate across-the-board implementation of parity between adoptive and blood relationships. Id. The argument against retroactivity is particularly persuasive because the draftsmen of trusts and wills prior to the enactment of § 45-64a may reasonably have relied upon the continuing validity of the contrary common law doctrine. Id.

The cases that the plaintiff cites as authority for a different rule are all distinguishable. In none of them was a court asked, as we are here, to override a specific legislative determination that its abolition of the common law presumption excluding adopted children be given only prospective effect. McCaleb v. Brown, 344 So. 2d 485, 488 (Ala. 1977) (applying a new rule of construction retroactively where “the only legislative expression in this general area . . . is not dispositive of the issue here presented”); Estate of Moulton, 63 Cal. App. 3d 1, 7-8, 133 Cal. Rptr. 500 (1976) (holding that the phrase “lawful issue” in a 1923 will included both adopted and natural children under then-controlling succession law, thereby eliminating the need to decide the question of retroactivity); In re Will of Martell, 457 So. 2d 1064, 1068 n.1 (Fla. App. 1984) (retroactively applying an adoption statute that, by its own language, reached “instruments, whether executed before or after entry of the adoption judgment, that do not expressly exclude an adopted person from their operation or effect”); Elliott v. Hiddleson, 303 N.W.2d 140, 144 (Iowa 1981) (retroactively rejecting “stranger to the adoption” doctrine in a context where the legislature had not spoken); In re Coe, 42 N. J. 485, 494-95, 201 A.2d 571 (1964) (declining to decide whether a statute, by its terms applicable only prospectively and silent on the question of retroactivity, should be applied to a preexisting will); Sola v. Clostermann, 67 Or. App. 468, 679 P.2d 317, 320 (1984) (retroactively applying a statute concerning illegitimate children that, by its own terms, was to be applied liberally to achieve its remedial purpose); In re Estate of Tafel, 449 Pa. 442, 453-54, 296 A.2d 797 (1972) (holding that its reversal of the common law presumption “does not conflict with any . . . legislation” relating to succession).

In the absence of compelling argument or authority to the contrary, we continue to adhere to the rule in Connecticut Bank & Trust Co. v. Bovey, supra, that the interpretation of irrevocable trusts executed prior to October 1,1959, is governed by the legislative decision against retroactivity contained in § 45-64a. Even if we were to agree with the plaintiff that the “stranger to the adoption” doctrine is outmoded, as most commentators now maintain; R. Effland, “Will Construction Under The Uniform Probate Code,” 63 Or. L. Rev. 337, 372 (1984); E. Halbach, “Issues About Issue: Some Recurrent Class Gift Problems,” 48 Mo. L. Rev. 333, 337 (1983); E. Halbach, “The Rights of Adopted Children Under Class Gifts,” 50 Iowa L. Rev. 971, 978 (1965); we would remain bound by the legislative policy dictating an orderly transition to a more hospitable view of adoption.

There is no error.

In this opinion the other justices concurred.

       In count one of her complaint, the plaintiff also sought a declaratory judgment determining whether she was entitled to the income and principal of a testamentary trust created under article fourteen of the will of Leonard O. Smith. That count, however, was withdrawn by the plaintiff prior to trial and is not presently before us.

       Article three of the trust provided: “The income from one of said parts, being one-third of the income, shall be paid to Eva Crowell Smith, the wife of the Donor, during her life, and upon her death, her said part shall be divided equally, and one-half paid and delivered to one of the Donor’s daughters named below, or if deceased, to her issue per stirpes, and the other half paid and delivered to the other of said daughters, or if deceased, to her issue per stirpes. If either daughter should be deceased, leaving no issue then living, all said part shall be paid and delivered to the other daughter, or if deceased, to her issue per stirpes.”

       Article four of the trust provided: “The income from one of said parts, being one-third of the income, shall be paid to Eloise Crowell Smith, one of the daughters of the Donor, during her life, and upon her death the income from said part shall be used for the support and education of her issue until her youngest living child shall reach the age of twenty-one years, when said part shall be divided, per stirpes, among her issue then living. In case said daughter should die leaving no issue living, or in case all of her issue should die before the time above provided for distribution, her said part shall be divided equally, and one-half paid and delivered to the said wife of the Donor, and the other half paid and delivered to the Donor’s daughter, Eva Virginia Smith, or if deceased, to her issue per stirpes. If the Donor’s said wife should then be deceased, all said part shall be paid and delivered to said Eva Virginia Smith, or if deceased, to her issue per stirpes. If said Eva Virginia Smith should then be deceased, leaving no issue then living, all said part shall be paid to the Donor’s said wife.”

       Article six of the trust provided: “In case of the death of the survivor of the Donor’s said wife and two daughters leaving no issue of said daughters to whom said funds may be distributed, or in case of the death of all of the issue of any daughter before the date set for distribution to such issue leaving neither of said three persons or any issue of said daughters then living, the said funds in the Trustee’s hands shall be distributed to the next of kin of the said Donor, said next of kin to be ascertained in accordance with the laws of the State of Connecticut at the time of such distribution, and the method of distribution to be in accordance with said laws, as if said Donor had died at the date of said distribution possessed of said funds.”

       General Statutes (Rev. to 1979) § 45-64a (4) provides: “The words ‘child,’ ‘children,’ ‘issue,’ ‘descendant,’ ‘descendants,’ ‘heir,’ ‘heirs,’ ‘lawful heirs,’ ‘grandchild’ and ‘grandchildren,’ when used in the singular or plural in any will or trust instrument executed subsequent to October 1, 1959, shall, unless such document clearly indicates a contrary intention, include legally adopted persons. Nothing herein shall be construed to alter or modify the provisions of section 45-162.”

       The Maryland legislature, by contrast, has expressly provided for retroactive application of its new rule of construction in favor of adoptees. See Md. Fam. Law Code Ann. § 5-308 (d) (3) (1984).