author: Hull, J.

text:
    Rosa E. Zapata, Administratrix (Estate of Luis A. Zapata), et al. v. J. William Burns, Commissioner of Transportation
    (13014)
    (13025)
    (13027)
    (13029)
    (13031)
    (13040)
    (13042)
    Peters, C. J., Healey, Glass, Covello and Hull, Js.
    Argued February 4
    decision released May 17, 1988

      Richard A. Silver and Richard A. Bieder, with whom were David P. Burke, Gerald E. Fogarty, Catherine C. Ziehl and, on the brief, Jay H. Sandak, Alexander J. Holland, Carey B. Reilly and Michael P. Koskoff, for the appellants (plaintiffs).

      William B. Rush, with whom were Thomas F. Morgan and, on the brief, Sharon A. Creegan, for the appellee (third party defendant Tippetts-Abbett-McCarthy-Stratton).

      Karen P. Blado filed a brief for the Connecticut Engineers in Private Practice, Inc., et al., as amici curiae.
   Hull, J.

These consolidated cases arise out of the collapse, on June 28,1983, of a suspended span of the Mianus River Bridge on the Connecticut Turnpike (1-95) in Greenwich. The dispositive issue is the constitutionality, under both the state and federal constitutions, of General Statutes § 52-584a which bars actions against architects and engineers seven years after substantial completion of a project, irrespective of whether a claim has arisen by that time.

As a result of the collapse of the bridge, three people were killed and three were injured, resulting in these actions for damages against the state of Connecticut. In each case the state impleaded Tippetts-AbbettMcCarthy-Stratton (TAMS), the architectural design firm for the bridge, seeking indemnification for any judgment which might be rendered in favor of the plaintiffs against the state. TAMS had designed the bridge and provided supervision and inspection of its construction pursuant to an agreement with the state dated June 24, 1954. The state approved the design of the bridge and accepted it on June 18, 1959, as a part of the state highway system.

After the state impleaded TAMS, each plaintiff filed a substitute complaint, in the alternative, against the third party defendant TAMS, adopting and restating the identical allegations made by the state in its complaint against TAMS. Each of the complaints in the alternative against TAMS sought monetary damages against it “[i]f defendant, J. William Burns, Commissioner of the State of Connecticut, Department of Transportation, is not legally responsible to plaintiffs.” The actions against the state were concluded upon the plaintiffs’ acceptance of the respective offers of judgment by the state pursuant to General Statutes § 13a-144. On May 30, 1986, the trial court granted a motion for summary judgment filed by TAMS as to all complaints in the alternative filed by the plaintiffs, on the ground that the causes of action were brought more than seven years after the substantial completion of the Mianus River Bridge and were therefore barred by the relevant statute of limitations, General Statutes § 52-584a. The judgment rendered on TAMS’ motion for summary judgment is the subject of the plaintiffs’ appeals in this case.

After the plaintiffs accepted the state’s offers of judgment, the state amended its pleadings to assert a subrogated claim against TAMS pursuant to § 13a-144, seeking damages for the amounts paid to the plaintiffs. On August 14,1986, the jury returned a verdict for the defendant. The state appealed on the sole ground that the trial court erred in refusing to submit its claim of absolute public nuisance to the jury. This court found no error. State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 527 A.2d 688 (1987). The question of the constitutionality of § 52-584a was not involved in that appeal.

On this appeal the plaintiffs claimed that the trial court erred: (1) in granting TAMS’ motion for summary judgment pursuant to General Statutes § 52-584a without an uncontroverted showing that at least one half the members of its partnership were licensed in Connecticut; (2) in rejecting the plaintiffs’ claim that summary judgment could not enter in TAMS’ favor based on General Statutes § 52-584a because that statute violated the plaintiffs’ constitutional rights to equal treatment under article first, § 1, of the Connecticut constitution; (3) in rejecting the plaintiffs’ claim that summary judgment could not enter in TAMS’ favor based on General Statutes § 52-584a because that statute violated the plaintiffs’ constitutional rights to equal protection under article first, § 20, of the Connecticut constitution and the fourteenth amendment to the United States constitution; and (4) in rejecting the plaintiffs’ claim that summary judgment could not enter in TAMS’ favor based on General Statutes § 52-584a because that statute violated the plaintiffs’ right to redress under article first, § 10, of the Connecticut constitution. The last three issues were raised in the trial court, and ruled on adversely to the plaintiffs in a well reasoned memorandum of decision granting TAMS’ motion for summary judgment against the plaintiffs. TAMS raises as alternate grounds for sustaining the judgment the following issues: (1) whether the plaintiffs may maintain a cause of action for personal injuries and wrongful death where the state is, by statute, subrogated to the rights of the plaintiffs to maintain such actions; and (2) if the plaintiffs and the state share the right to maintain a cause of action to recover damages for personal injuries and wrongful death, whether the plaintiffs are precluded, under the doctrine of res judicata and collateral estoppel, from litigating the same issues and claims that have been adjudicated in the litigation prosecuted to conclusion by the state.

We need not address these alternate grounds since we find no error in the court’s judgments granting summary judgment for TAMS. In view of the important public policy questions raised by the plaintiffs’ constitutional claims it is preferable for us to address the merits of these claims directly.

I

First, however, we must address the plaintiffs’ first claim of error. The plaintiffs claim that TAMS failed to establish that it qualified as a firm of architects or engineers within the meaning of § 52-584a and therefore was not entitled to the protection provided by that statute. They claim that the statute bars actions against only those licensed as such in the state of Connecticut and that TAMS failed in its proof of this matter, leaving genuine issues of material fact which precluded the granting of its motion for summary judgment. The burden of establishing the absence of a genuine issue of material fact and the entitlement to recovery as a matter of law lies with the moving party. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984); Kakadelis v. DeFabritis, 191 Conn. 276, 281, 464 A.2d 57 (1983).

The plaintiffs argue that § 52-584a extends only to those individuals who qualify under Connecticut law as architects and engineers. Connecticut statutes predating § 52-584a to the present time have provided that no person may practice architecture or engineering in Connecticut without a license from the state. General Statutes §§ 20-290 and 20-302. Finally, General Statutes § 20-298a, which became effective in 1965, requires that at least one half of the partners or principals in any partnership of architects and engineers shall be registered architects. TAMS counters that Robert Abbett, a registered Connecticut engineer, signed a contract with the state on TAMS’ behalf to perform engineering services on the Mianus River Bridge, and that the contract plans for the bridge were also signed by Abbett and bear his professional engineer’s seal.

We need not reach the question, however, of whether there was a genuine issue of material fact which should have precluded the granting of TAMS’ motion for summary judgment. Section 20-298a became effective in 1965, eleven years after TAMS signed a contract to do design work for the bridge and six years after the bridge work was accepted by the state. The plaintiffs cite no authority and make no reasoned argument why § 20-298a should apply retroactively to TAMS. Further, the statute is concerned only with the manner in which architects and engineers may form partnerships and is not involved in any way with the licensing of either profession. At the legislative hearing on the statute, Carmine Lavieri, appearing for the Connecticut Chapter of the American Institute of Architects and the Connecticut Society of Architects, stated:

“Now with respect to [House Bill No.] 2626, this bill came about because the Attorney General has issued rulings in the past to the Architectural Examining Board and to the Board of Registration for Professional Engineers and Land Surveyors to the effect that architects cannot be in partnership with anybody else but architects; engineers cannot be in partnership with anybody but engineers, on the basis of the way the statutes now exist.

“There are many situations where it seems desirable for architects and engineers to form a joint partnership or perhaps a joint venture for one particular project. Many of the other states have this provision, and this bill was put in to accomplish that purpose.” Conn. Joint Standing Committee Hearings, General Law, Pt. 1, 1965 Sess., p. 109.

The plaintiffs, once again, offer no authority or logical reason why this statute should be grafted on to § 52-584a. There is no merit to this claim of error.

The plaintiffs’ complaints in the alternative against TAMS were filed in 1986, twenty years beyond the date of substantial completion of the bridge. Therefore, unless § 52-584a is unconstitutional in one or more of the aspects claimed by the plaintiffs, the trial court was correct in granting TAMS’ motion for summary judgment.

II

A

THE CONSTITUTIONALITY OF GENERAL STATUTES § 52-584A UNDER ARTICLE FIRST, § 1 (EQUALITY OF RIGHTS), AND ARTICLE FIRST, § 20 (EQUAL PROTECTION), OF THE CONNECTICUT CONSTITUTION AS WELL AS THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

The plaintiffs have briefed a claimed violation of article first, § 1, as a field of inquiry separate from consideration of the state and federal equal protection clauses. In the context of this case all three of these concepts are merged. The equality of rights provision contained in article first, § 1, of the Connecticut constitution has a meaning equivalent to the equal protection clause contained in the fourteenth amendment to the United States constitution. Lublin v. Brown, 168 Conn. 212, 219, 362 A.2d 769 (1975); State ex rel. Brush v. Sixth Taxing District, 104 Conn. 192, 195, 132 A. 561 (1926). Similarly, “ ‘ “[t]he equal protection provisions of the federal and state constitutions have the same meaning and limitations.” ’ Daily v. New Brit ain Machine Co., [200 Conn. 562, 577, 512 A.2d 893 (1986)]; see also Keogh v. Bridgeport, 187 Conn. 53, 66, 444 A.2d 225 (1982); Caldor’s, Inc. v. Bedding Barn, Inc., 177 Conn. 304, 314, 417 A.2d 343 (1979); Miller v. Heffernan, 173 Conn. 506, 516-17, 378 A.2d 572 (1977), appeal dismissed, 434 U.S. 1057, 98 S. Ct. 1226, 55 L. Ed. 2d 758 (1978).” Ecker v. West Hartford, 205 Conn. 219, 237, 530 A.2d 1056 (1987).

“ ‘When a statute is challenged on equal protection grounds . . . the reviewing court must first determine the standard by which the challenged statute’s constitutional validity will be determined.’ Ryszkiewicz v. New Britain, 193 Conn. 589, 596, 479 A.2d 793 (1984). ‘ “When a statutory classification impinges upon an inherently suspect class or affects a fundamental personal right, the statute is subject to strict scrutiny and is justified only by a compelling state interest.” ’ State Management Assn. of Connecticut, Inc. v. O’Neill, 204 Conn. 746, 750, 520 A.2d 1276 (1987); Keogh v. Bridgeport, supra, 66; Frazier v. Manson, 176 Conn. 638, 645, 410 A.2d 475 (1979); see Dunn v. Blumstein, 405 U.S. 330, 335-42, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972). Otherwise, a statute will stand if the classification bears a reasonable relation to a legitimate state interest. State Management Assn. of Connecticut, Inc. v. O’Neill, supra; Ryszkiewicz v. New Britain, supra, 597; Keogh v. Bridgeport, supra.” Ecker v. West Hartford, supra, 237-38.

The plaintiffs claim that because § 52-584a impinges on their fundamental right to access to the courts, it is subject to strict scrutiny and must be struck down unless justified by a compelling state interest. A right is fundamental for purposes of equal protection analysis if it is explicitly or implicitly guaranteed by the constitution. San Antonio School District v. Rodriguez, 411 U.S. 1, 33-34, 93 S. Ct. 1278, 36 L. Ed. 2d 16, reh. denied, 411 U.S. 959, 93 S. Ct. 1919, 36 L. Ed. 2d 418 (1973); Frazier v. Manson, supra, 646; Horton v. Meskill, 172 Conn. 615, 640, 376 A.2d 359 (1977). The plaintiffs claim that the right of access to the courts is implicit in article first, §§ 1 and 20, of the Connecticut constitution. They further claim that the right is explicitly provided by article first, § 10, of the Connecticut constitution.

“ ‘The key to discovering whether a right is fundamental is in assessing whether the right is explicitly or implicitly guaranteed by the Constitution. San Antonio School District v. Rodriguez, [supra, 34].’ Cardo v. Lakeland Central School District, 592 F. Sup. 765, 770 (S.D.N.Y. 1984). Such rights include ‘first amendment rights, which are explicitly provided for by the Constitution, see e.g., Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 284-85, 97 S. Ct. 568, 574-575, 50 L. Ed. 2d 471 (1972); Perry v. Sindermann, 408 U.S. 593, 598, 92 S. Ct. 2694, 2698, 33 L. Ed. 2d 570 (1983); the right to travel interstate, which has been found to be implicit in the Constitution, see, e.g., Martinez v. Bynum, 461 U.S. 321, 103 S. Ct. 1838, 1842-43, 75 L. Ed. 2d 879 (1983); Shapiro [v. Thomas, 394 U.S. 618, 629-31, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969)]; and the right to vote, which is the guardian of all other rights. Harper v. Virginia Board of Elections, 383 U.S. 663, 667, 86 S. Ct. 1079, 1081, 16 L. Ed. 2d 169 (1966).’ Cardo v. Lakeland Central School District, supra.” State Management Assn. of Connecticut, Inc. v. O’Neill, supra, 751. Further examples of fundamental rights implicitly, guaranteed by the constitution are those of marriage; Zablocki v. Redhail, 434 U.S. 374, 98 S. Ct. 673, 54 L. Ed. 2d 618 (1978); privacy; Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, reh. denied, 410 U.S. 959, 93 S. Ct. 1409, 35 L. Ed. 2d 694 (1973); and freedom of association. NAACP v. Alabama, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488 (1958).

We have never held, however, that a constitutional right of access to the courts automatically translates each and every claim that a litigant may raise into one invoking fundamental rights. “ ‘It cannot seriously be argued that a statutory entitlement to sue for wrongful death of another is itself a “fundamental” or “constitutional right.” ’ Parham v. Hughes, 441 U.S. 347, 358 n.12, 99 S. Ct. 1742, 60 L. Ed. 2d 269 (1979) Ecker v. West Hartford, supra, 238. The plaintiffs offer no reason why this principle should not apply equally to actions for personal injuries. In Ryszkiewicz v. New Britain, supra, 598, we applied the rational basis test to a statute despite the plaintiffs claim that it must face strict scrutiny because it impinges on the fundamental right to recover damages for injuries from tortious acts, citing the Connecticut constitution, article first, § 10. We conclude, therefore, that the standard by which to determine the equal rights protection challenge to § 52-584a is the rational basis test.

The court’s function under this test is to decide whether the classification and disparate treatment inherent in a statute bear a rational relationship to a legitimate state end and are based on reasons related to the accomplishment of that goal. Daily v. New Britain Machine Co., supra, 577. “A classification ‘must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relationship to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ ” Id., 578, quoting Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S. Ct. 560, 64 L. Ed. 989 (1920).

Every presumption is to be given in favor of the constitutionality of the statute. New Milford v. SCA Services of Connecticut, Inc., 174 Conn. 146,148, 384 A.2d 337 (1977); Wilson v. Connecticut Product Development Corporation, 167 Conn. 111, 114, 355 A.2d 72 (1974). “[CJourts will assume that the legislature intended to accomplish a reasonable and rational result.” Stoni v. Wasicki, 179 Conn. 372, 376-77, 426 A.2d 774 (1979).

“[legislative enactments carry with them a strong presumption of constitutionality, and ... a party challenging the constitutionality of a validly enacted statute bears the heavy burden of proving the statute unconstitutional beyond a reasonable doubt.” Beccia v. Waterbury, 192 Conn. 127, 133, 470 A.2d 244 (1984); McKinney v. Coventry, 176 Conn. 613, 621, 410 A.2d 453 (1979); Engle v. Personnel Appeal Board, 175 Conn. 127, 134, 394 A.2d 731 (1978).

Section 52-584a is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues. The clear mandate of General Statutes § 52-584a “was to create a seven year absolute maximum on actions against architects and engineers, based upon the finite barrier of substantial completion, regardless of the nature of the claim, while leaving any other lesser limitations in effect.” R. A. Civitello Co. v. New Haven, 6 Conn. App. 212, 229, 504 A.2d 542 (1986).

We have stated in dictum that “ ‘[t]here is no reason, constitutional or otherwise, which prevents the legislature from enacting a statute, such as § 8324 [now § 52-584], which starts the limitation on actions for negligence running from the date of “the act or omission complained of,” even though at that date no person has sustained damage and therefore no cause of action has come into existence. Indeed, such a provision accords with the purposes of statutes of limitation. One purpose is to prevent the unexpected enforcement of stale claims concerning which the persons interested have been thrown off their guard by want of prosecution. Anderson v. Bridgeport, 134 Conn. 260, 266, 56 A.2d 650 [1947].’ [Vilcinskas v. Sears, Roebuck & Co., 144 Conn. 170, 174-75, 127 A.2d 814 (1956).] Again, one of the purposes of a statute of limitations is to protect a defendant from finding himself in a situation where, because of the lapse of time, he is unable to gather facts, evidence, and witnesses necessary to afford him a fair defense. For these reasons, the time for bringing an action starts at the time of the occurrence of the alleged negligence and not at the time when the person was injured. ‘It is consonant with the purpose of protecting defendants against stale claims that the legislature should enact a statute, such as § [52-584 or 52-577a], which may on occasion bar an action even before the cause of action accrues.’ Vilcinskas v. Sears, Roebuck & Co., supra, 175.” Daily v. New Britain Machine Co., supra, 584.

The plaintiffs argue that § 52-584a violates article first, § 1, and the equal protection clauses of the state and federal constitutions, in that it fails to serve a public purpose and creates a classification that lacks a rational basis. They do not claim that statutes of limitation or repose in and of themselves lack a public purpose. We have recently said “[t]he enactment of ‘[statutes limiting the time within which an action may be brought are the result of a legitimate legislative determination which balances the rights and duties of competing groups.’ ... A statute of limitation or of repose is designed to (1) prevent the unexpected enforcement of stale and fraudulent claims by allowing persons after the lapse of a reasonable time, to plan their affairs with a reasonable degree of certainty, free from the disruptive burden of protracted and unknown potential liability, and (2) to aid in the search for truth that may be impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents or otherwise.” (Citation omitted.) Ecker v. West Hartford, supra, 239-40; see also Daily v. New Britain Machine Co., supra, 582. The rational basis test requires us to decide first whether there are natural and substantial differences between the classes preferred by the legislation and all others, and then whether the differences identified are logically related to the subject and object of the legislation. Tough v. Ives, 162 Conn. 274, 293, 294 A.2d 67 (1972); State ex rel. Higgins v. Civil Service Commission, 139 Conn. 102, 107, 90 A.2d 862 (1952); Lyman v. Adorno, 133 Conn. 511, 521, 52 A.2d 702 (1947).

The plaintiffs claim that § 52-584a cannot pass the rational basis test because there is no justification for differentiating architects and engineers from others who are similarly situated, such as other members of the construction industry on the one hand and owners or possessors on the other. They also frame the argument in another way, characterizing § 52-584a as impermissible special interest legislation, citing extensive legislative history to support this claim. The argument, in essence, boils down to the question of whether there is a rational basis for the distinction between architects and engineers from other possible targets of liability arising out of similar claims.

Statutes in other jurisdictions that address this problem are not uniform. Provisions vary as to the type of actions precluded, the classes of people protected and the time in which such actions must be commenced. Further, the courts have dealt with the abrogation of rights, with questions of special legislation and with equal protection claims. All but six states (Arizona, Iowa, Kansas, New York, Nebraska and Vermont) have enacted statutes of repose for certain limited subjects of the construction industry. These statutes have been invalidated in thirteen states and upheld in twenty-three states. See annot., 93 A.L.R.3d 1242 (1979).

The plaintiffs claim that the cases holding such statutes unconstitutional are the better reasoned decisions. The plaintiffs cite, among other cases, Skinner v. Anderson, 38 Ill. 2d 455, 231 N.E.2d 588 (1967), in which a four year statute was held unconstitutional on the ground that it singled out contractors and architects for immunity from all those whose negligence in connection with construction might result in injury. The Supreme Court of Hawaii also found discrimination against the owner or possessor of property who might be held liable for damage or injury for which the engineer and contractor were in fact liable. Fujioka v. Kam, 55 Hawaii 7, 10-13, 514 P.2d 568 (1973) (holding classification unreasonable in immunizing the engineer and contractor but not the owner); accord Tabler v. Wallace, 704 S.W.2d 179, 189 (Ky. 1985), cert. denied, 479 U.S. 822, 107 S. Ct. 89, 93 L. Ed. 2d 41 (1986) (similar conclusion); Henderson Clay Products, Inc. v. Edgar Wood & Associates, Inc., 122 N.H. 800, 802, 451 A.2d 174 (1982) (all who participate in the enterprise should be held to account for their share of the blame). We disagree, preferring to follow the substantial majority of the cases that have found such statutes constitutional.

It is our view that rational distinctions do exist between architects and engineers and others involved in the construction process. Klein v. Catalano, 386 Mass. 701, 715-16, 437 N.E.2d 514 (1982); Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa. 270, 275-78, 382 A.2d 715 (1978). The owner of real estate has the continuing duty and ability to maintain the property after the architect or engineer has completed his work. See Adair v. Koppers Co., 541 F. Sup. 1120 (N.D. Ohio 1982); Yarbro v. Hilton Hotels Corporation, 655 P.2d 822 (Colo. 1982); Mullis v. Southern Co. Services, Inc., 250 Ga. 90, 296 S.E.2d 579 (1982); Beecher v. White, 447 N.E.2d 622 (Ind. App. 1983); Klein v. Catalano, supra. With the passage of time it is more likely that any defect is caused by improper maintenance rather than defects in design. See comment, “Limitation of Actions Statutes for Architects and Builders—Blueprints for Non-action,” 18 Cath. U.L. Rev. 361, 364 (1969). After acceptance by the owner, the architect or engineer ordinarily lacks control of the improvement. Klein v. Catalano, supra, 716. Further, architects and engineers are subject to claims from one or more potential plaintiffs and under more theories of liability than are owners. Beecher v. White, supra, 627; Freezer Storage, Inc. v. Armstrong Cork Co., supra, 278-79.

Very strong factors distinguishing architects and engineers from contractors were found in O’Brien v. Hazelet & Erdal, 410 Mich. 1, 17-18, 299 N.W. 2d 336 (1980), where the court stated: “The legislature might have concluded that the different education, training, experience, licensing and professional stature of architects and engineers made it more likely that a limitation on their tort liability would not reduce the care with which they performed their tasks than would be the case with contractors.

“The legislature may also have thought it necessary to reduce the potential liability of architects and engineers in order to encourage experimentation with new designs and materials.”

We conclude that the classification of architects and engineers in a manner different from other groups involved in the construction process bears a rational relationship to a legitimate state end and is based on reasons related to the accomplishment of that goal.

B

THE CONSTITUTIONALITY OF GENERAL STATUTES § 52-584A UNDER ARTICLE FIRST, § 10, OF THE CONNECTICUT CONSTITUTION.

The plaintiffs claim that the statute is unconstitutional under the right of redress section of the Connecticut constitution which provides “[a]ll courts shall be open, and every person, for any injury done to him in his person, property, or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” They claim that the statute violates this section by abolishing common law rights of actions for both personal injuries and death, which existed at the time of the adoption of our constitution in 1818 and its “reincorporation” in 1965, without providing claimants with reasonable alternates.

We recently considered a similar constitutional claim in Daily v. New Britain Machine Co., supra. In Daily, the plaintiff employees claimed that General Statutes § 52-577a, the product liability statute, was unconstitutional because it barred a cause of action even before it accrued, in violation of article first, § 10. They claimed that if workers are injured on the job by equipment older than the ten year statutory limitation of liability, their causes of action could be absolutely foreclosed even before they might arise. Since workers are limited to workers’ compensation benefits after the statutory period they claimed that they were deprived of their state constitutional right to seek redress in the courts. Id., 582.

We stated in Daily: “The plaintiffs further argue that the ‘open court’ provision of Connecticut’s constitution restricted the power of the legislature to abolish a cause of action recognized at common law. This same claim was raised in Gentile v. Altermatt, 169 Conn. 267, 286, 363 A.2d 11 (1975), where we held that ‘article first, § 10, recognized all existing rights and removed from the power of the legislature the authority to abolish those rights in their entirety . . . [but] the legislature retains the power to provide reasonable alternatives to the enforcement of such rights. Where such reasonable alternatives are created, the legislature may then restrict or abolish the incorporated common-law or statutory rights.’ See also Kluger v. White, 281 So. 2d 1, 4-5 (Fla. 1973); 16B C.J.S. 509-10, Constitutional Law § 710; Ruben & Williams, ‘The Constitutionality of Basic Protection,’ 1 Conn. L. Rev. 44, 46 n. 13 (1968), and cases cited therein. The claimed injuries suffered as a result of an alleged defective product, like injuries suffered in an automobile accident, could be linked to the preconstitutional common law action of trespass on the case and, as such, could be considered a constitutionally incorporated common law right. It is clear then that the framers of the state constitution intended that our courts be available for redress for the type of injury involved here.” Id., 585. We concluded, however, that the workers’ compensation statutes provided a reasonable alternative to access to the courts and, therefore, § 52-577a did not violate article first, § 10, of the Connecticut constitution.

The plaintiffs seek to distinguish Daily by arguing that § 52-584a differs from the product liability statute because the legislature has not provided any reasonable alternative to access to the courts for injuries arising out of the defective work of architects and engineers. We need not, however, reach that issue if, at the time of the adoption of our constitution, the plaintiffs would not have been able to pursue the claims that they maintain that the legislature has unconstitutionally abrogated by enacting § 52-584a. In Ecker v. West Hartford, supra, 235, we held that there was no civil right of action for wrongful death at common law or by statute in 1818. Therefore the plaintiffs’ causes of action for wrongful death furnish no basis for a claim of unconstitutionality of § 52-584a. Concerning the plaintiffs’ causes of action for personal injury we note that the existence of a cause of action for injuries negligently caused by an architect or engineer, by a person not a party to the contract between the architect or engineer and the owner, is a relatively recent development in the law. In Coburn v. Lenox Homes, Inc., 173 Conn. 567, 378 A.2d 599 (1977), we upheld a negligence action by a subsequent purchaser of a house against the defendant, who had furnished a defective septic system to the original purchaser of the house. In so doing, we stated: “The revolution in the law of negligence which began with MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 [1916], and which resulted in recognition that privity was not a legitimate concern in negligence actions has finally produced the general rule ‘that the seller is liable for negligence in the manufacture or sale of any product which may reasonably be expected to be capable of inflicting substantial harm if it is defective.’ ” Id., 574. We built on the landmark MaePherson case by stating that “[t]he fact that we are dealing here with a suit by a subsequent purchaser is not fatal to the negligence claim since the requirement of privity should only be applicable to actions growing out of contract theory and should be irrelevant to tort actions.” Id.

The MaePherson rule abolishing the privity requirement in negligence cases was gradually applied to building contractors and by logical extension to architects and engineers. “[T]he analogy of MacPherson v. Buick Motor Co., was persuasive, and was finally accepted. It is now the almost universal rule that the contractor is liable to all those who may foreseeably be injured by the structure, not only when he fails to disclose dangerous conditions known to him, but also when the work is negligently done. This applies not only to contractors doing original work, but also to those who make repairs, or install parts, as well as supervising architects and engineers. There may be liability for negligent design, as well as for negligent construction.” W. Prosser & W. Keeton, Torts (5th Ed.) § 104A, p. 723.

“An architect may be held liable for negligence in failing to exercise the ordinary skill of his profession, which results in the erection of an unsafe structure whereby anyone lawfully on the premises is injured. An architect’s liability for negligence resulting in personal injury or death may be based upon his supervisory activities or upon defects in the plans. The liability of the architect, moreover, is not limited to the owner who employed him; the modern view is that privity of contract is not a prerequisite to liability.” 5 Am. Jur. 2d, Architects § 25. “The effect of these legal developments on architects and engineers was to extend their liability beyond the date of completion of an improvement to all foreseeable users. See, e.g., Laukkanen v. Jewel Tea Co., Inc., 78 Ill. App. 2d 153, 222 N.E.2d 584 (1966).” R.A. Civitello Co. v. New Haven, 6 Conn. App. 212, 225, 504 A.2d 542 (1986).

The plaintiffs, upon whom rests the burden of proving § 52-584a unconstitutional beyond a reasonable doubt, have cited no authority that the rule of privity in negligence actions was not applicable in 1818 nor are we aware of any such authority.

“[T]he right to redress in the courts must remain inviolate but it does not attach unless one suffers a recognized injury.” Gentile v. Altermatt, supra, 284. We conclude, therefore, that in 1818 the claims of the plaintiffs in this case were not a “recognized injury,” the removal of which constitutes a violation of the constitutional right of redress unless a reasonable alternative is provided.

There is no error.

In this opinion the other justices concurred.

       General Statutes § 52-584a provides: “actions against architect or professional engineer. No action or arbitration, whether in contract, in tort, or otherwise, (1) to recover damages (A) for any deficiency in the design, planning, contract administration, supervision, observation of construction or construction of an improvement to real property; (B) for injury to property, real or personal, arising out of any such deficiency; (C) for injury to the person or for wrongful death arising out of any such deficiency, or (2) for contribution or indemnity which is brought as a result of any such claim for damages shall be brought against any architect or professional engineer performing or furnishing the design, planning, supervision or observation of construction or construction of such improvement more than seven years after substantial completion of such improvement.
      “(b) Notwithstanding the provisions of subsection (a) of this section, in the case of such an injury to property or the person or such an injury causing wrongful death, which injury occurred during the seventh year after such substantial completion, an action in tort to recover damages for such an injury or wrongful death may be brought within one year after the date on which such injury occurred, irrespective of the date of death, but in no event may such an action be brought more than eight years after the substantial completion of construction of such an improvement.
      “(c) For purposes of subsections (a) and (b) of this section, an improvement to real property shall be considered substantially complete when (1) it is first used by the owner or tenant thereof or (2) it is first available for use after having been completed in accordance with the contract or agreement covering the improvement, including any agreed changes to the contract or agreement, whichever occurs first.
      “(d) The limitation prescribed by this section shall not be asserted by way of defense by any person in actual possession or the control, as owner, tenant or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury or death for which it is proposed to bring action.”

       General Statutes § 13a-144 provides in pertinent part: “DAMAGES FOR INJURIES SUSTAINED ON STATE HIGHWAYS OR SIDEWALKS. Any person injured in person or property through the neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the commissioner of transportation to keep in repair, or by reason of the lack of any railing or fence on the side of such bridge or part of such road which may be raised above the adjoining ground so as to be unsafe for travel or, in case of the death of any person by reason of any such neglect or default, the executor or administrator of such person, may bring a civil action to recover damages sustained thereby against the commissioner in the superior court. . . . This section shall not be construed so as to relieve any contractor or other person, through whose neglect or default any such injury may have occurred, from liability to the state; and, upon payment by the comptroller of any judgment rendered under the provisions of this section, the state shall be subrogated to the rights of such injured person to recover from any such contractor or other person an amount equal to the judgment it has so paid. The commissioner, with the approval of the attorney general and the consent of the court before which any such action is pending, may make an offer of judgment in settlement of any such claim.”

       Article first, § 1, of the Connecticut constitution provides: “All men when they form a social compact, are equal in rights; and no man or set of men are entitled to exclusive public emoluments or privileges from the community.”

       Article first, § 20, of the Connecticut constitution provides: “No person shall be denied the equal protection of the law nor be subjected to segregation or discrimination in the exercise or enjoyment of his civil or political rights because of religion, race, color, ancestry or national origin.”

       Section 1 of the fourteenth amendment to the United States constitution provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

       Article first, § 10, of the Connecticut constitution provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.”

       In Connecticut an architect is defined as one who “engages in the practice of architecture.” General Statutes § 20-288 (2). A professional engineer is one.who is qualified “to engage in engineering practice” which includes, inter alia, “planning, design or responsible supervision of construction, in connection with any public or privately-owned structures . . . works or projects wherein the public welfare or the safeguarding of life, public health or property is concerned . . . .” General Statutes § 20-299 (1).

       “[General Statutes] Sec. § 20-298a. partnerships of architects and professional engineers. Notwithstanding the provisions of this chapter and chapter 391, one or more architects and one or more professional engineers, each of whom is licensed under the provisions of said chapters, may form a partnership, joint enterprise or association, the title of which may include the words ‘architects’.and ‘engineers.’ At least half of the partners or principals in any such partnership, joint enterprise or association shall be licensed architects and all of its announcements, cards, printed matter and listings shall indicate as to each member whether he is an architect or a professional engineer.”

        McClanahan v. American Gilsonite Co., 494 F. Sup. 1334 (D. Colo. 1980); Jackson v. Mannesmann Demag Corporation, 435 So. 2d 725 (Ala. 1983); Turner Construction Co. v. Scales, 752 P.2d 467 (Alaska 1988); Universal Engineering Corporation v. Perez, 451 So. 2d 463 (Fla. 1984); Overland

        Construction Co. v. Sirmons, 369 So. 2d 572 (Fla. 1979); Shibuya v. Architects Hawaii, Ltd., 65 Hawaii 26, 647 P.2d 276 (1982); Fujioka v. Kam, 55 Hawaii 7, 514 P.2d 568 (1973); Skinner v. Anderson, 38 Ill. 2d 455, 231 N.E.2d 588 (1967); Tabler v. Wallace, 704 S.W.2d 179 (Ky. 1985); Saylor v. Hall, 497 S.W.2d 218 (Ky. 1973); Muzar v. Metro Town Houses, Inc., 82 Mich. App. 368, 266 N.W.2d 850 (1978); Pacific Indemnity Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548 (Minn. 1977); State Farm Fire & Casualty Co. v. All Electric, Inc., 99 Nev. 222, 660 P.2d 995 (1983); Henderson Clay Products, Inc. v. Edgar Wood & Associates, Inc., 122 N.H. 800, 451 A.2d 174 (1982); Terry v. New Mexico State Highway Commission, 98 N.M. 119, 645 P.2d 1375 (1982); Loyal Order of Moose, Lodge 1785 v. Cavaness, 563 P.2d 143 (Okla. 1977); Broome v. Truluck, 270 S.C. 227, 241 S.E.2d 739 (1978); Daugaard v. Baltic Co-Op Building Supply Assn., 349 N.W.2d 419 (S.D. 1984); Kallas v. Millwork Corporation v. Square D Co., 66 Wis. 2d 382, 225 N.W.2d 454 (1975); Phillips v. ABC Builders, Inc., 611 P.2d 821 (Wyo. 1980).

        Cournoyer v. Massachusetts Bay Transportation Authority, 744 F.2d 208 (1st Cir. 1984); Hartford Fire Ins. Co. v. Lawrence, Dykes, Goodenberger, Bower & Clancy, 740 F.2d 1362 (6th Cir. 1984); Deville Furniture Co. v. Jesco, Inc., 697 F.2d 609 (5th Cir. 1983); Adair v. Koppers Co., 541 F. Sup. 1120 (N.D. Ohio 1982); Cudahy Co. v. Ragnar Benson, Inc., 514 F. Sup. 1212 (D. Colo. 1981); President & Directors v. Madden, 505 F. Sup. 557 (D. Md. 1980); Smith v. Allen-Bradley Co., 371 F. Sup. 698 (W.D. Va. 1974); Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970); Barnhouse v. Pinole, 133 Cal. App. 3d 171, 183 Cal. Rptr. 881 (1982); Salinero v. Pon, 124 Cal. App. 3d 120, 177 Cal. Rptr. 204 (1981); Yarbro v. Hilton Hotels

        Corporation, 655 P.2d 822 (Colo. 1982); Cheswold Volunteer Fire Co. v. Lambertson Construction Co., 462 A.2d 416 (Del. 1983); Mullis v. Southern Co. Services, 250 Ga. 90, 296 S.E.2d 579 (1982); Twin Falls Clinic & Hospital Building Corporation v. Hamill, 103 Idaho 19, 644 P.2d 341 (1982); Matayka v. Melia, 199 Ill. App. 3d 221, 456 N.E.2d 353 (1983); Beecher v. White, 447 N.E.2d 622 (Ind. App. 1983); Burmaster v. Gravity Drainage District No. 2, 366 So. 2d 1381 (La. 1978); Whiting-Turner Contracting Co. v. Coupard, 304 Md. 340, 499 A.2d 178 (1985); Kings Department Stores, Inc. v. Poley-Abrams Corporation, 386 Mass. 1008, 437 N.E.2d 237 (1982); Klein v. Catalano, 386 Mass. 701, 437 N.E.2d 514 (1982); Cliffs Forrest Products Co. v. Al Disdero Lumber Co., 144 Mich. App. 215, 375 N.W.2d 397 (1985); O’Brien v. Hazelet & Erdal, 410 Mich. 1, 299 N.W.2d 336 (1980); Calder v. Crystal, 318 N.W.2d 838 (Minn. 1982); Anderson v. Fred Wagner & Roy Anderson, Jr., Inc., 402 So. 2d 320 (Miss. 1981); Reeves v. Ille Electric Co., 170 Mont. 104, 551 P.2d 647 (1976); O’Connor v. Altus, 123 N.J. Super. 379, 303 A.2d 329 (1973); Rosenberg v. North Bergen, 61 N.J. 190, 293 A.2d 662 (1972); Howell v. Burk, 90 N.M. 688, 568 P.2d 214 (1977); Lamb v. Wedgewood South Corporation, 55 N.C. App. 686, 286 S.E.2d 876 (1982); Joseph v. Burns, 260 Or. 493, 491 P.2d 203 (1971); Freezer Storage, Inc. v. Armstrong Cork Co., 234 Pa. Super. 441, 341 A.2d 184 (1975); McMacken v. State, 320 N.W.2d 131 (S.D. 1982); Harmon v. Argus Jessup Associates, Inc., 619 S.W.2d 522 (Tenn. 1981); Sowders v. M.W. Kellogg Co., 663 S.W.2d 644 (Tex. 1984); Ellerbe v. Otis Elevator Co., 618 S.W.2d 870 (Tex. 1981); Hill v. Forrest & Cotton, Inc., 555 S.W.2d 145 (Tex. 1977); Good v. Christensen, 527 P.2d 223 (Utah 1974); Yakima Fruit & Cold Storage Co. v. Central Heating & Plumbing Co., 81 Wash. 2d 528, 503 P.2d 108 (1972).

       The plaintiffs merely assert the claim that the “reincorporation” of the right of redress section updates the time for determining existing rights, without citing any authority or offering any logical argument why this should be so. We, therefore, do not.consider this argument.


source: Caselaw Access Project

author: Callahan, J.

license: Public Domain

text:
    Kevin G. Dubay, Conservator (Estate of Elizabeth Irish) v. Inasita Irish
    (13239)
    Peters, C. J., Shea, Callahan, Glass and Hull, Js.

      Argued February 3
    decision released May 17, 1988

      Rebecca B. Lamont, with whom, on the brief, was Steven L. Seligman, for the appellant (plaintiff).

      Mark V. Connolly, with whom was James G. Kenefick, Jr., for the appellee (defendant).
   Callahan, J.

The plaintiff, Kevin G. Dubay, as conservator of the estate of Elizabeth Irish, filed the instant appeal from the judgment of the trial court, Noren, J., rendered in favor of the defendant, Inasita Irish, the mother of the plaintiff’s incompetent. The trial court granted the defendant’s motion for summary judgment, ruling that the first count of the plaintiff’s amended complaint, sounding in negligence, was barred by the doctrine of parental immunity, and that the second count, sounding in wilful, wanton and/or reckless conduct, was barred by the statute of limitations. On appeal, the plaintiff raises the following issues: (1) whether the parental immunity doctrine bars the maintenance of a tort action against a parent by an unemancipated child who comes of age prior to filing the action; (2) whether the doctrine of parental immunity is a bar in a case where a parent is covered by liability insurance; (3) whether the parental immunity doctrine violates article first, §§10 and 20 of the Connecticut constitution; and (4) whether the allegations of wilful, wanton and/or reckless conduct set forth in the second count of the amended complaint assert a new cause of action so as to be barred by the statute of limitations. We find no error.

The relevant facts are not in dispute. On March 11, 1983, Elizabeth Irish (hereinafter Elizabeth), the seventeen and one-half year old daughter of the defendant, stayed home from school complaining of an upset stomach. Prior to leaving for work that day, the defendant looked in on Elizabeth and found her sleeping. Thereafter, the defendant went to work and afterward did her grocery shopping before returning home at approximately 8 p.m. Elizabeth greeted the defendant on her return and took a container of yogurt from the groceries the defendant had purchased. Subsequently, Elizabeth refused to eat her dinner and at approximately 9:15 p.m., the defendant heard her daughter vomiting. While attempting to render aid, the defendant learned that Elizabeth had ingested a large number of pills of assorted prescription medications. The medications had been prescribed to the defendant for her asthma, high blood pressure, muscle spasms and back pains. In an attempt to induce her to eject the pills from her stomach, the defendant and another of her daughters placed Elizabeth in a shower and forced her to drink coffee. Those efforts having proved futile, at approximately 1 a.m., the defendant took Elizabeth, who was conscious and coherent, to Mount Sinai Hospital. About four hours elapsed between the time the defendant first discovered Elizabeth had ingested medication and was ill and the time the defendant took Elizabeth to the hospital.

While at Mount Sinai Hospital, Elizabeth began to experience convulsions and, subsequently, went into a coma. Thereafter, she remained unresponsive to stimuli for two weeks and was required to be maintained on a respirator for six days. As an apparent result of the drug ingestion, Elizabeth suffers from organic brain damage with a significant degree of mental retardation.

The medications taken by Elizabeth had been kept by the defendant in their individual containers inside a plastic bag in a cabinet above a broom closet in the kitchen. The defendant had moved the medications to the kitchen cabinet from a dresser near her bed approximately six weeks before the incident in question because she was concerned that her prescriptions were “too exposed to everyone,” including her young grandchildren and Elizabeth. The defendant testified that she could reach her medications in the kitchen cabinet only with the aid of a step stool.

After having been appointed Elizabeth’s conservator on February 19,1985, the plaintiff filed this action on February 22, 1985, by which time Elizabeth had reached the age of eighteen. The original single count complaint alleged that the defendant had negligently and carelessly caused Elizabeth to suffer organic brain damage and to become mentally retarded in that: “(a) she maintained within the family premises large quantities of dangerous drugs, when she knew or should have known of the Plaintiff’s Incapable’s suicidal tendencies and of the likelihood that the Plaintiff’s Incapable would consume said drugs; (b) she failed to hide or secure from the Plaintiff’s Incapable aforesaid dangerous drugs, when she knew or should have known of the Plaintiff’s Incapable’s likelihood to consume them; (c) she failed to warn or otherwise instruct the Plaintiff’s Incapable not to consume said drugs; and (d) she failed to determine in a prompt and timely fashion that the Plaintiff’s Incapable had consumed said drugs and failed, therefore, to obtain for her prompt and timely medical care.” The defendant moved to strike the original complaint on the ground that the action was barred by the doctrine of parental immunity. The trial court, Purtill, J., agreed and granted the defendant’s motion to strike. Thereafter, the plaintiff filed the present two count amended complaint sounding in negligence and wilful, reckless and/or wanton conduct. The defendant then moved for summary judgment and argued that the first count was barred by the doctrine of parental immunity, and that the second count was barred by the statute of limitations because it set forth a new cause of action, filed more than two years after the incident, which did not relate back to the filing of the initial complaint. In the alternative, the defendant argued that, even if it were assumed that the second count related back to the original complaint and was timely, the plaintiff had presented no facts or evidence to demonstrate that the defendant’s conduct was wilful, wanton and/or reckless. The trial court, Noren, J., granted the defendant’s motion for summary judgment and rendered judgment thereon for the defendant. We find no error.

I

The first claim raised by the plaintiff is that the doctrine of parental immunity bars the initiation of suit by only an unemancipated minor, and thus, the doctrine is not applicable here because Elizabeth had become emancipated prior to the filing of this action. We disagree.

The parental immunity doctrine bars an unemancipated minor from suing his or her parent for injuries caused by the negligence of that parent. Dzenutis v. Dzenutis, 200 Conn. 290, 293, 512 A.2d 130 (1986); Ooms v. Ooms, 164 Conn. 48, 51, 316 A.2d 783 (1972). Under this doctrine “a parent is not liable civilly to his child for personal injury inflicted during [the child’s]minority . . . .” (Emphasis added.)Mesite v. Kirchenstein, 109 Conn. 77, 82-83, 145 A. 753 (1929). Thus, to determine the applicability of the parental immunity doctrine, the age of the child at the time the injury is inflicted governs and not the age of the child at the time the action is filed. “Contrary to the contention of the plaintiff, her emancipation subsequent to her injury gives her no additional right to maintain this action. Her right to sue must exist at the time of the injury and her subsequent emancipation is of no consequence. ‘An emancipated child cannot maintain an action against his parent for a tort committed before emancipation if at the time of the wrong the action was not maintainable.’ 59 Am. Jur. 2d, Parent and Child, § 157. . . .” Lee v. Comer, 159 W. Va. 585, 587-88, 224 S.E.2d 721 (1976); see also London Guarantee & Accident Co. v. Smith, 242 Minn. 211, 214 n.2, 64 N.W.2d 781 (1954); Franco v. Davis, 51 N. J. 237, 238, 239 A.2d 1 (1968), rev’d in part on other grounds, France v. A.P.A. Transport Corporation, 56 N.J. 500, 267 A.2d 490 (1970).

There is no dispute that, at the time of her injuries, Elizabeth was the seventeen and one-half year old unemancipated child of the defendant. Her subsequent emancipation prior to the filing of this action had no effect on the applicability of the parental immunity doctrine. The trial court did not err in so holding.

II

The plaintiff next claims that the parental immunity doctrine should not bar a minor’s negligence action against a parent where, as here, the parent is covered by liability insurance. The plaintiff argues that the parental immunity doctrine no longer serves the interests of family harmony and is an impediment to the utilization of the very resources that would help the family, i.e., insurance proceeds. The plaintiff relies solely upon the recent case of Dzenutis v. Dzenutis, supra, to support his position. We disagree.

In Dzenutis, we had occasion to address the applicability of the parental immunity doctrine in the limited context of an unemancipated minor who had sustained injuries away from the family environment and by reason of the negligently conducted business activities of his parent. Id., 299-300. While this court sustained the trial court’s refusal to apply the parental immunity doctrine in that case, we also specifically disagreed “with the trial court’s view that the presence of insurance should be the touchstone of viability of an action by a child against a parent and that recovery should be limited to the insurance policy.” Id., 299. We went on to note the following: “In Shaker [v. Shaker, 129 Conn. 518, 523-24, 29 A.2d 765 (1942)], we rejected the claim that the outcome of a case should depend upon whether the defendant has insurance. We continue to believe that different rules of law should not be fashioned for the insured and the uninsured. We note that the legislature has made no such differentiation in the enactment of § 52-572c, which abrogates the immunity for motor vehicle, aircraft and boat accidents without regard to whether there may be insurance coverage. It would be inconsistent with the legislative scheme to make the applicability of parent-child immunity depend upon the availability of insurance in an individual case.” Id.; see also Villaret v. Villaret, 169 F.2d 677, 678-79 (D.C. Cir. 1948); Mathis v. Ammons, 453 F. Sup. 1033, 1035 (E.D. Tenn. 1978); Rambo v. Rambo, 195 Ark. 832, 838-39, 114 S.W.2d 468 (1938); Rousey v. Rousey, 528 A.2d 416, 421 (D.C. App. 1987); Cosmopolitan National Bank v. Heap, 128 Ill. App. 2d 165, 168, 262 N.E.2d 826 (1970); Stevens v. Murphy, 69 Wash. 2d 939, 948, 421 P.2d 668 (1966), rev’d on other grounds, Merrick v. Sutterlin, 93 Wash. 2d 411, 416, 610 P.2d 891 (1980). Clearly, our holding in Dzenutis does not support the plaintiffs claim that the parental immunity doctrine serves no purpose in cases where liability insurance exists.

We also find Dzenutis inapplicable here for another significant reason. In Dzenutis, the alleged acts of negligence were committed by the parent away from the home and in the context of the parent’s business activities. Dzenutis v. Dzenutis, supra, 300. In the case at hand, the alleged acts of negligence occurred within the family home and clearly involved the exercise of ordinary parental discretion and control with respect to the care, supervision and instruction of Elizabeth. In factually similar cases, a number of jurisdictions in other states have specifically declined to abrogate parental immunity notwithstanding the availability of liability insurance. See Schneider v. Coe, 405 A.2d 682, 684-85 (Del. 1979) (child wandered off and was injured when a parent allowed child to stand unattended at the top of the stairway leading to the exit of the building); Cosmopolitan National Bank v. Heap, supra, 169 (child injured when he slipped on a loose fitting stairway rug that the father failed to secure); Frye v. Frye, 305 Md. 542, 564-65, 567, 505 A.2d 826 (1986); Addiego v. Interboro General Hospital, 81 Misc. 2d 96, 365 N.Y.S.2d 718 (1975) (child ingested a caustic substance that was placed in a glass on the floor at the parent’s side while the parent attempted to free a clogged bathtub drain); Sixkiller v. Summers, 680 P.2d 360, 362 (Okla. 1984) (child was injured as a result of father’s alleged failure to supervise and instruct child on dangers of a bow and arrows and by father’s failure to place bow and arrows in safe place); Talarico v. Foremost Ins. Co., 105 Wash. 2d 114, 116, 712 P.2d 294 (1986) (child injured when parent left him unattended in his backyard with an open fire burning). Even in those jurisdictions that have, in part, abrogated parental immunity on the basis of, inter alia, the existence of insurance, the overwhelming majority of them have specifically retained the doctrine in the area of parental supervision, or have at least recognized that the doctrine may have continued validity where the negligent act involves the exercise of ordinary parental discretion with respect to the care and control of a minor child. In fact, although the American Law Institute rejected the parental immunity doctrine generally in 1977, today it continues to recognize the validity of the doctrine in situations where the alleged negligent conduct involves the exercise of parental authority or supervision. 4 Restatement (Second), Torts § 895G, comment k (1979) .

The supervision, care and instruction of one’s child involves issues of parental control, authority and discretion that are uniquely matters of a very personal type. Schneider v. Coe, supra, 684. “Each parent has unique and inimitable methods and attitudes on how children should be supervised. Likewise, each child requires individualized guidance depending on intuitive concerns which only a parent can understand. Also, different cultural, educational and financial conditions affect the manner in which different parents supervise their children. Allowing a cause of action for negligent supervision would enable others, ignorant of a case’s peculiar familial distinctions and bereft of any standards, to second-guess a parent’s management of family affairs . . . Paige v. Bing Construction Co., 61 Mich. App. 480, 485, 233 N.W.2d 46 (1975); see also Cherry v. Cherry, 295 Minn. 93, 95, 203 N.W.2d 352 (1972).

Accordingly, we decline to abrogate the doctrine of parental immunity in cases, such as this, involving allegations of the negligent exercise of parental discretion with regard to the care, supervision and instruction of a child based solely upon the existence of liability insurance. Courts should not unnecessarily involve themselves in the day-to-day exercise of parental discretion regarding the upbringing and care of children. To do so would undermine parental authority in the very personal endeavor of child rearing and inject the machinery of the state into an area where its presence might be the occasion for family discord. The trial court, therefore, did not err in granting the motion for summary judgment on the negligence count of the plaintiffs complaint.

Ill

A

The plaintiff next claims that the parental immunity doctrine violates the equal protection clause of article first, § 20, of the Connecticut constitution. Specifically, the plaintiff argues that, with the abrogation of virtually all other forms of intrafamilial immunity, unemancipated children are placed in a classification that is not based upon any natural or substantial differences germane to the subject and purposes of the rule.

At the outset, we note that the plaintiff did not raise the equal protection claim below in opposition to either the defendant’s motion to strike or the defendant’s motion for summary judgment. Therefore, the issue was never properly briefed nor presented to the trial court for a decision as required by Practice Book § 4185. In addition, the plaintiff bears the heavy burden of demonstrating that, under the particular facts of this case, the parental immunity doctrine violates Elizabeth’s constitutional rights. See State v. Zach, 198 Conn. 168, 176, 502 A.2d 896 (1985). The plaintiff has, however, failed to cite any authority whatsoever wherein the doctrine of parental immunity has been held to be violative of either the state or federal equal protection clauses. Accordingly, we decline to review the plaintiff’s equal protection claim because he has failed to demonstrate a clear deprivation of a fundamental constitutional right. State v. Evans, 165 Conn. 61, 70, 327 A.2d 576 (1973).

B

The plaintiff also claims that the parental immunity doctrine deprives Elizabeth of her right to redress for her injuries as guaranteed by article first, § 10, of the Connecticut constitution. We disagree.

Article first, § 10, provides: “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” Section 10 “has been viewed as a limitation upon the legislature’s ability to abolish common law and statutory rights that existed in 1818, when article first, § 10 was adopted, and which were ‘incorporated in that provision by virtue of being established by law as rights the breach of which precipitates a recognized injury . . . .’ Gentile v. Altermatt, 169 Conn. 267, 286, 363 A.2d 1 (1975), appeal dismissed, 423 U.S. 1041, 96 S. Ct. 763, 46 L. Ed. 2d 631 (1976); see also Daily v. New Britain Machine Co., 200 Conn. 562, 585, 512 A.2d 893 (1986); Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 133 n.3, 479 A.2d 231 (1984).” Ecker v. West Hartford, 205 Conn. 219, 234, 530 A.2d 1056 (1987). Thus, it is clear that § 10 is implicated only where a right that existed at common law or by statute prior to 1818 has been infringed upon or abolished.

The plaintiff has presented no authority to support the proposition that prior to 1818 a child had a right, guaranteed either by statute or common law, to maintain a tort action against a parent; nor has this court been able to find any. Case law, in fact, tends to support a contrary view. Careful research of the early authorities has failed to disclose a single case prior to 1818 in this country or England involving a personal tort action between a child and a parent. See Gibson v. Gibson, 3 Cal. 3d 914, 916, 479 P.2d 648, 92 Cal. Rptr. 288 (1971); Sorensen v. Sorensen, 369 Mass. 350, 353, 339 N.E.2d 907 (1975); Dunlap v. Dunlap, 84 N.H. 352, 356, 150 A. 905 (1930); Tucker v. Tucker, 395 P.2d 67, 68 (Okla. 1964), rev’d on other grounds, UNAH By and Through UNAH v. Martin, 676 P.2d 1366 (Okla. 1984). The first reported case to address the issue appears to be the Mississippi Supreme Court case of Hewlett v. George, 68 Miss. 703, 9 So. 885 (1891). In Hewlett v. George, supra, 711, the parental immunity doctrine was first articulated as follows: “But so long as the parent is under obligation to care for, guide, and control, and the child is under reciprocal obligation to aid and comfort and obey, no such action as this can be maintained. The peace of society, and of the families composing society, and a sound public policy, designed to subserve the repose of families and the best interests of society, forbid to the minor child a right to appear in court in the assertion of a claim to civil redress for personal injuries suffered at the hands of the parent. The state, through its criminal laws, will give the minor child protection from parental violence and wrong-doing, and this is all the child can be heard to demand.” See Ard v. Ard, 414 So. 2d 1066, 1067 (Fla. 1982); Rupert v. Stienne, 90 Nev. 397, 405, 528 P.2d 1013 (1974); Tucker v. Tucker, supra.

We conclude that the plaintiff has failed in his burden to prove that a child had either a statutory or a common law right of action in tort against a parent prior to 1818 when the Connecticut constitution was adopted. Zapata v. Burns, 207 Conn. 496, 515-16, 542 A.2d 700 (1988). Consequently, contrary to his unsupported claim, we find that the trial court did not err in holding that the plaintiff failed to demonstrate that the doctrine of parental immunity as applied in this case violated article first, § 10, of the Connecticut constitution.

IV

The plaintiffs final claim is that the second count of his amended complaint sounding in wilful, wanton and/or reckless conduct is not barred by the statute of limitations because it does not state a new cause of action different from the negligence count set forth in his original complaint. He argues that the second count of the amended complaint relates back to the filing of the original complaint and is therefore not time barred.

Under the circumstances of this case, we decline to address the specific question of whether the second count of the plaintiff’s amended complaint alleging wilful, wanton and/or reckless conduct states a new and different cause of action than the original complaint that sounded only in negligence. Even if we assume that the second count related back to the filing of the original complaint for purposes of the application of the statute of limitations, we would, nevertheless, affirm the trial court’s entry of summary judgment for the defendant because the plaintiff has presented no factual allegations or evidence to raise even a suspicion that the defendant’s conduct was wilful, wanton or reckless.

“Recklessness is a state of consciousness with reference to the consequences of one’s acts. Commonwealth v. Pierce, 138 Mass. 165, 175 [1884]. ... It is ‘more than negligence, more than gross negligence.’ Bordonaro v. Senk, 109 Conn. 428, 431, 147 Atl. 136 [1929]. The state of mind amounting to recklessness may be inferred from conduct. But, in order to infer it, there must be something more than a failure to exercise a reasonable degree of watchfulness to avoid danger to others or to take reasonable precautions to avoid injury to them.” Mooney v. Wabrek, 129 Conn. 302, 308, 27 A.2d 631 (1942). “Wanton misconduct is reckless misconduct. Menzie v. Kalmonowitz, 107 Conn. 197, 199, 139 A. 698 (1928). ‘It is such conduct as indicates a reckless disregard of the just rights or safety of others or of the consequences of the action.’ Bordonaro v. Senk, [supra, 431].” Markey v. Santangelo, 195 Conn. 76, 78, 485 A.2d 1305 (1985); see also Brown v. Branford, 12 Conn. App. 106, 108, 529 A.2d 743 (1987). Wilful misconduct has been defined as intentional conduct designed to injure for which there is no just cause or excuse. Markey v. Santangelo, supra, 77. “ ‘[Its] characteristic element is the design to injure either actually entertained or to be implied from the conduct and circumstances.’ Sharkey v. Skilton, 83 Conn. 503, 507-508, 77 A. 950 (1910).” Id., 78. Not only the action producing the injury but the resulting injury also must be intentional. Id., 77.

While we have attempted to draw definitional distinctions between the terms wilful, wanton or reckless, in practice the three terms have been treated as meaning the same thing. “The result is that ‘willful,’ ‘wanton,’ or ‘reckless’ conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent. . . . It is at least clear . . . that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simply inattention . . . .” W. Prosser & W. Keeton, Torts (5th Ed.) § 34, p. 214.

During oral argument before this court, the plaintiff limited his claim of wilful, wanton and/or reckless conduct to the fact that the defendant had delayed almost four hours before taking Elizabeth to the hospital. While the record before this court establishes the existence of such a delay, the plaintiff ignores the fact that it also establishes that the defendant took prompt action upon discovering that Elizabeth had swallowed the pills. When the defendant first heard Elizabeth vomiting, she went to her aid and attempted to discern what was wrong. Elizabeth, however, did not immediately reveal what she had done. Initially, the defendant thought that the cause of Elizabeth’s discomfort was the yogurt she had eaten earlier, coupled with the stomachache that had precipitated her absence from school that day. Upon ascertaining that Elizabeth had ingested the medications, however, the defendant sought help from her other daughter and advice from her doctor and made preparations to take Elizabeth to the hospital. Elizabeth resisted, however, and refused to go. The defendant, therefore, as first aid, placed Elizabeth in a shower and forced her to drink coffee in an attempt to induce vomiting. Subsequently, Elizabeth requested that the defendant wait to see if she felt better before taking her to the hospital. Despite Elizabeth’s requests to the contrary, however, the defendant finally insisted that Elizabeth obtain professional medical help and took her to Mount Sinai Hospital. Elizabeth was conscious, coherent, and apparently resistant the entire time. Accordingly, under the undisputed factual circumstances presented, we conclude that no genuine issue of material fact existed, and that, as a matter of law, a fair and reasonable trier could not possibly determine that the defendant’s conduct was wilful, wanton and/or reckless. The trial court therefore reached the correct result when it granted the defendant’s motion for summary judgment.

There is no error.

In this opinion the other justices concurred.

       The record reveals that, in the two years before she had ingested the medications, Elizabeth had been experiencing emotional or psychiatric problems and had attempted suicide on at least one occasion. The record is not clear, and the parties have not raised the issue, as to whether her prior psychiatric illness is in any way related to her present brain damaged condition.

       In the weeks immediately preceding March 11,1983, Elizabeth appeared to be very happy and had been doing well in school, attending church dances and going to the movies. The defendant indicated that, during this time, she saw no indications that Elizabeth desired to take her own life, and that Elizabeth had never before tampered with the defendant’s prescription medications.

       The first count of the amended complaint is identical to the single count complaint previously stricken by the trial court. The second count also contains the same factual allegations as count one and further alleges that the defendant’s conduct was “wilful, wanton, and/or reckless.”

       “A parent’s exercise of authority over his or her child involves more than discipline. It includes the providing of instruction and education so that a child may be aware of dangers to his or her well being.” Paige v. Bing Construction Co., 61 Mich. App. 480, 484, 233 N.W.2d 46 (1975); see also Haddrill v. Damon, 149 Mich. App. 702, 706-707, 386 N.W.2d 643 (1986).

       See Hebel v. Hebel, 435 P.2d 8, 14 (Alaska 1967); Sandoval v. Sandoval, 128 Ariz. 11, 13-14, 623 P.2d 800 (1981); Schneider v. Coe, 405 A.2d 682, 684-85 (Del. 1979); Pedigo v. Rowley, 101 Idaho 201, 205, 610 P.2d 560 (1980); Cosmopolitan National Bank v. Heap, 128 Ill. App. 2d 165, 169-70, 262 N.E.2d 826 (1970); Turner v. Turner, 304 N.W.2d 786, 788-89 (Iowa 1981); Nocktonick v. Nocktonick, 227 Kan. 758, 769-70, 611 P.2d 135 (1980); Rigdon v. Rigdon, 465 S.W.2d 921, 923 (Ky. 1971); Black v. Solmitz, 409 A.2d 634, 639 (Me. 1979); Sorensen v. Sorensen, 369 Mass. 350, 366, 339 N.E.2d 907 (1975); Haddrill v. Damon, 149 Mich. App. 702, 706-707, 386 N.W.2d 643 (1986); Cherry v. Cherry, 295 Minn. 93, 95, 203 N.W.2d 352 (1972); Transamerica Ins. Co. v. Royle, 202 Mont. 173, 180, 656 P.2d 820 (1983); Foldi v. Jeffries, 93 N.J. 533, 545-46, 461 A.2d 1145 (1983); Holodook v. Spencer, 36 N.Y.2d 35, 45-51, 324 N.E.2d 338, 364 N.Y.S.2d 859 (1974); Addiego v. Interboro General Hospital, 81 Misc. 2d 96, 98-99, 365 N.Y.S.2d 718 (1975); Sixkiller v. Summers, 680 P.2d 360, 362 (Okla. 1984); Silva v. Silva, 446 A.2d 1013, 1016-17 (R.I. 1982); Felderhoff v. Felderhoff, 473 S.W.2d 928, 933 (Tex. 1971); Wright v. Wright, 213 Va. 177, 179, 191 S.E.2d 223 (1972); Talarico v. Foremost Ins. Co., 105 Wash. 2d 114, 116-17, 712 P.2d 294 (1986); Goller v. White, 20 Wis. 2d 402, 413, 122 N.W.2d 193 (1963).

       We recognize that a number of our prior decisions have stated generally that “[i]t is well established that causes of action for negligence and ‘wilful or malicious conduct’ are separate and distinct causes of action.” Warner v. Leslie-Elliott Constructors, Inc., 194 Conn. 129, 138, 479 A.2d 231 (1984); see also Dumond v. Denehy, 145 Conn. 88, 91, 139 A.2d 58 (1958); Brock v. Waldron, 127 Conn. 79, 80, 14 A.2d 713 (1940). Although we need not address this issue, we question the applicability of the proposition here because none of the cases cited involved a relation back claim for purposes of the statute of limitations raised in connection with an amendment to a complaint. In addition, the plaintiff here relies upon the identical factual allegations in both the negligence and the wilful, wanton and/or reckless counts of the amended complaint. Further, the issue has been specifically addressed in other jurisdictions that have held an amendment to a complaint setting forth an additional count, one that sounds in wilful, wanton and/or reckless conduct, to the existing negligence count did not state a new and distinct cause of action and, therefore, related back to the filing of the original complaint for purposes of the statute of limitations. See Saari v. Superior Court, 178 Cal. App. 2d 175, 178-79, 2 Cal. Rptr. 856 (1960); Barr v. Carroll, 128 Cal. App. 2d 23, 34, 274 P.2d 717 (1959); Harbert v. Kansas City Elevated R. Co., 91 Kan. 605, 610, 138 P. 641 (1914); Kizer v. Bowman, 256 N.C. 565, 570, 124 S.E.2d 543 (1962); Bush v. Kelley’s, Inc., 18 Ohio St. 2d 89, 93, 247 N.E.2d 745 (1969); Cohen v. Bucey, 158 Ohio St. 159, 168, 107 N.E.2d 333 (1952).

       The plaintiffs claim assumes that the parental immunity doctrine is not a bar to a child’s action against a parent based upon the parent’s wilful, wanton and/or reckless conduct. Although this court has not specifically addressed the issue, language from early decisions of this court indicates to the contrary. In Shaker v. Shaker, 129 Conn. 518, 523, 29 A.2d 765 (1942), and Mesite v. Kuchenstein, 109 Conn. 77, 86, 145 A. 753 (1929), the court stated: “Considering the situation of the child in its broadest aspects . . . the rule of the courts, that the maintenance of an action of tort by a child against his parent for injuries suffered through the negligent, wilful or wanton conduct of the parent is against sound public policy, cannot be held to be so unwise as to make necessary our departure from it at this late date.” A growing number of jurisdictions have exempted the wilful, wanton and/or reckless misconduct of a parent from the doctrine of parental immunity. We need not, however, address that issue in light of our holding herein. In addition, neither party has raised or briefed the issue.

       “ ‘Wilful misconduct is intentional misconduct, and wanton misconduct is reckless misconduct, which is the equivalent of wilful misconduct.’ ” State v. Alterio, 154 Conn. 23, 25-26, 220 A.2d 451 (1966); see also Menzie v. Kalmonowitz, 107 Conn. 197, 199, 139 A. 698 (1928).

       The relevant facts were undisputed. The only evidence submitted by the parties in connection with the motion for summary judgment was the transcript of the defendant’s deposition testimony. Neither party submitted any affidavits; therefore, no genuine issue of fact existed.

       The conclusion of negligence, although ordinarily a mixed question of law and fact, becomes strictly a question of law only when the mind of a fair and reasonable man could reach but one conclusion. Parlato v. Connecticut Transit, 181 Conn. 66, 68, 434 A.2d 322 (1980); Smith v. Leuthner, 156 Conn. 422, 424-25, 242 A.2d 728 (1968). Because wilful, wanton and/or reckless conduct are aggravated forms of negligence, we find the controlling principle of law set forth in these cases to be applicable here.

       Where the trial court reached the correct result, its judgment can be affirmed regardless of the grounds upon which the judgment rests. See State v. Vincent, 194 Conn. 198, 204 n.8, 479 A.2d 237 (1984); Glemboski v. Glemboski, 184 Conn. 602, 606-607, 440 A.2d 242 (1981); Cheshire v. McKenney, 182 Conn. 253, 261, 438 A.2d 88 (1980).


author: Glass, J.

text:
    Timothy Fair, Jr. v. People’s Savings Bank et al.
    (13247)
    Healey, Shea, Glass, Covello and Hull, Js.
    Argued March 10
    decision released May 24, 1988

      James L. Pomeranz, with whom, on the brief, was Anne M. Kelly, for the appellants (named defendant).

      Elaine M. Scanlon, with whom, on the brief, was Howard T. Owens, Jr., for the appellee (plaintiff).
   Glass, J.

The named defendant appeals from the decision of the workers’ compensation review division reversing the denial of an award to the plaintiff, Timothy Fair, Jr., by the workers’ compensation commissioner (commissioner). On appeal, the defendant claims that the compensation review division erred in concluding that the plaintiff’s decedent’s injury and death arose out of her employment. We find error.

This matter was submitted on a stipulation of facts to the commissioner for the fourth district, who adopted the stipulation. The commissioner made findings that Gail Rogers, the decedent, was employed by the defendant, the People’s Savings Bank (bank). The decedent and Timothy Fair, her boyfriend, had lived together until December, 1980, shortly before her death. Fair did not work for the bank. During the summer of 1980, the relationship between Fair and the decedent deteriorated, and in late December, 1980, the decedent told Fair that she was leaving him.

On December 29,1980, while she was working at the bank, the decedent received harassing telephone calls from Fair. Fair also went to the bank that morning, threatened the decedent and was escorted out of the bank by bank security personnel. The decedent, fearing for her safety, decided to leave her job and went to the bank’s personnel office to resign. While the decedent was in the process of resigning, Fair came back to the bank and asked the decedent’s supervisor where she was at the time. The supervisor told him that the decedent was in the personnel office. The supervisor did not notify the personnel office or the bank security department that Fair had returned to the bank. Meanwhile, Annie Robinson, a bank personnel employee, conducted an “exit interview,” and arranged for the decedent’s departure. On two occasions Robinson attempted to notify bank security personnel that Fair presented a threat to the decedent. A co-employee, Catrina Peters, was asked to assist the decedent in getting home. At about 1:15 p.m., Fair entered the personnel office, demanded to see the decedent and ordered Peters out of the office. She refused to leave and attempted to telephone for assistance. Fair then pulled a .38 caliber revolver out from his clothing and shot the decedent in the head. The decedent died on January 7, 1981, from the injuries that she had sustained as a result of the shooting. Timothy Fair, Jr., born on April 25,1980, is the plaintiff and the sole child and dependent of the decedent. Fair, the decedent’s assailant, is the father of Timothy Fair, Jr.

On the basis of these findings the commissioner concluded that the decedent’s death did not arise out of her employment and dismissed the plaintiff’s claim. The plaintiff appealed to the review division, and the review division affirmed the findings of the commissioner, but concluded that the decedent’s death did arise out of her employment and held that the claim was compensable. The defendant appealed the decision of the review division to the Appellate Court, and the case was transferred to this court pursuant to Practice Book § 4023. On appeal, the defendant claims that the review division erred in concluding that the decedent’s death arose out of and in the course of her employment. The defendant argues that the assault on the decedent was inevitable and that the animosity between Fair and the decedent, culminating in the assault, was imported into the decedent’s employment from her domestic and private life. We agree.

I

At the outset, we must determine the appropriate standard of review when a decision of a commissioner is appealed to the compensation review division. A decision of a commissioner granting or denying an award may be appealed to the review division pursuant to General Statutes § 31-301 (a), which provides in pertinent part: “At any time within ten days after entry of such award by the commissioner . . . either party may appeal therefrom to the compensation review division .... Such appeal shall be heard by a panel of the compensation review division .... The compensation review division shall hear the appeal on the record of the hearing before the commissioner, provided, if it is shown to the satisfaction of the division that additional evidence or testimony is material and that there were good reasons for failure to present it in the proceedings before the commissioner, the compensation review division may hear additional evidence or testimony. Upon the final determination of the appeal by the-compensation review division ... it shall issue its decision, affirming, modifying or reversing the decision of the commissioner. The decision of the compensation review division shall include its findings and award and conclusions of law. . . .” (Emphasis added.)

It is clear that under General Statutes § 31-301 (a) and § 31-301-8 of the Regulations of Connecticut State Agencies the review division’s hearing of an appeal from the commissioner is not a de novo hearing of the facts. Although the review division may take additional material evidence, this is proper only if it is shown to its satisfaction that good reasons exist as to why the evidence was not presented to the commissioner. Otherwise, it is obliged to hear the appeal on the record and not “retry the facts.” See Regs., Conn. State Agencies § 31-301-8. We have stated: “[T]he power and duty of determining the facts rests on the commissioner, the trier of facts. Czeplicki v. Fafnir Bearing Co., 137 Conn. 454, 457, 78 A.2d 339 (1951). The conclusions drawn by him from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Mathurin v. Putnam, 136 Conn. 361, 366, 71 A.2d 599 (1950).” Adzima v. UAC/Norden Division, 177 Conn. 107, 117-18, 411 A.2d 924 (1979); Murchison v. Skinner Precision Industries, Inc., 162 Conn. 142, 145, 291 A.2d 743 (1972).

Moreover, the United States Supreme Court has held that “[i]n determining whether a particular injury arose out of and in the course of employment, the Deputy Commissioner must necessarily draw an inference from what he has found to be the basic facts. The propriety of that inference, of course, is vital to the validity of the order subsequently entered. But the scope of judicial review of that inference is sharply limited by the foregoing statutory provisions. If supported by evidence and not inconsistent with the law, the Deputy Commissioner’s inference that an injury did or did not arise out of and in the course of employment is conclusive. No reviewing court can then set aside that inference because the opposite one is thought to be more reasonable; nor can the opposite inference be substituted by the court because of a belief that the one chosen by the Deputy Commissioner is factually questionable. Voehl v. Indemnity Ins. Co., [288 U.S. 162, 166, 53 S. Ct. 380, 77 L. Ed. 676 (1933)]; Del Vecchio v. Bowers, 296 U.S. 280, 287 [56 S. Ct. 190, 80 L. Ed. 229 (1935)]; South Chicago Co. v. Bassett, 309 U.S. 251, 257-258 [60 S. Ct. 544, 84 L. Ed. 732 (1940)]; Parker v. Motor Boat Sales, 314 U.S. 244, 246 [62 S. Ct. 221, 86 L. Ed. 184 (1941), reh. denied, 314 U.S. 716, 62 S. Ct. 477, 86 L. Ed. 570 (1942)]; Davis v. Department of Labor, [317 U.S. 249, 63 S. Ct. 225, 87 L. Ed. 246 (1942), reh. denied, 317 U.S. 713, 63 S. Ct. 438, 87 L. Ed. 567 (1943)]; Norton v. Warner Co., 321 U.S. 565, 568-569 [64 S. Ct. 747, 88 L. Ed. 931 (1944)].

“It matters not that the basic facts from which the Deputy Commissioner draws this inference are undisputed rather than controverted. See Boehm v. Commissioner, 326 U.S. 287, 293 [66 S. Ct. 120, 90 L. Ed. 78 (1945) ]. It is likewise immaterial that the facts permit the drawing of diverse inferences. The Deputy Commissioner alone is charged with the duty of initially selecting the inference which seems most reasonable and his choice, if otherwise sustainable, may not be disturbed by a reviewing court. Del Vecchio v. Bowers, supra, 287. Moreover, the fact that the inference of the type here made by the Deputy Commissioner involves an application of a broad statutory term or phrase to a specific set of facts gives rise to no greater scope of judicial review. Labor Board v. Hearst Publications, 322 U.S. 111, 131 [64 S. Ct. 851, 88 L. Ed. 1170, reh. denied, 322 U.S. 769, 64 S. Ct. 1148, 88 L. Ed. 1595 (1944)]; Commissioner v. Scottish American Co., 323 U.S. 119, 124 [65 S. Ct. 169, 89 L. Ed. 113 (1944)]; Unemployment Compensation Commission v. Aragon, 329 U.S. 143, 153-154 [67 S. Ct. 245, 91 L. Ed. 136 (1946) ]. Even if such an inference be considered more legal than factual in nature, the reviewing court’s function is exhausted when it becomes evident that the Deputy Commissioner’s choice has substantial roots in the evidence and is not forbidden by the law. Such is the result of the statutory provision permitting the suspension or setting aside of compensation orders only ‘if not in accordance with law.’ ” Cardillo v. Liberty Mutual Co., 330 U.S. 469, 477-78, 67 S. Ct. 801, 91 L. Ed. 1028 (1947).

To the extent that we have articulated a standard for reviewing a determination by a commissioner that an injury arose out of the employment, we have treated this issue as factual in nature and, therefore, have accorded the commissioner’s conclusion the same deference as that given to similar conclusions of a trial judge or jury on the issue of proximate cause. “A finding of a fact of this character [whether the injury arose out of the employment] is the finding of a primary fact. . . . This ordinarily and in this case presents a question for the determination of the commissioner and we have no intention of usurping his function.” Herbst v. Hat Corporation of America, 130 Conn. 1, 4, 31 A.2d 329 (1943). “This rule leads to the conclusion that unless the case lies clearly on the one side or the other the question whether an employee has so departed from his employment that his injury did not arise out of it is one of fact.” Id., 7-8; see also Woodley v. Rossi, 152 Conn. 1, 6, 202 A.2d 136 (1964); Gordon v. United Aircraft Corporation, 150 Conn. 328, 329, 189 A.2d 384 (1963).

Applying these principles to this case we are persuaded that in reviewing the facts found by the commissioner, the review division is bound by the findings of fact made by the commissioner, unless additions, corrections or modifications of findings of fact are made pursuant to the narrow proviso set forth in § 31-301 (a). Contrary to Adzima v. UAC/Norden Division, supra, the review division in this case reassessed the facts. We conclude that this is not permissible under General Statutes § 31-301 (a), § 31-301-8 of the Regulations of Connecticut State Agencies, and our case law. See Adzima v. UAC/Norden Division, supra; Herbst v. Hat Corporation of America, supra.

II

The defendant concedes that “[i]n the instant case there is no issue that the injury occurred while the claimant was in the course of her employment so that the sole issue is whether the injury and death arose out of that employment.” In support of the claim that the decedent’s death did not arise out of her employment, the defendant relies principally on Larson’s Workmen’s Compensation Law, § 11.21, which provides in pertinent part: “When the animosity or dispute that culminates in an assault is imported into the employment from claimant’s domestic or private life, and is not exacerbated by the employment, the assault does not arise out of the employment . . . .” See also 82 Am. Jur. 2d § 329, pp. 126-27 (“when the assault is unconnected with the employment, or is for reasons personal to the assailant and the one assaulted, or is not because the relation of employer and employee exists, and the employment is not the cause, though it may be the occasion, of the wrongful act, and may give a convenient opportunity for its execution, it is ordinarily held that the injury does not arise out of the employment”).

To illustrate the application of the rule taken from Larson, the defendant relies on several cases such as Johnson v. Drummond, Woodsum, Plimpton & MacMahon, P.A., 490 A.2d 676 (Me. 1985), Epperson v. Industrial Commissioner, 26 Ariz. App. 467, 549 P.2d 247 (1976), and Transactron, Inc. v. Workers’ Compensation Appeals Board, 68 Cal. App. 3d 233, 137 Cal. Reptr. 142 (1977). Although these cases may be distinguished from this case, nonetheless there is a significant similarity and adherence to the general rule. As in this case, the animosity or dispute that culminated in the assault in these cases was unconnected with the victim’s employment and was imported into the employment from the victim’s domestic or private life.

We note that the Connecticut cases urged for our consideration pertaining to assaults at the work place' are cases involving attacks by fellow employees or pertaining to conditions of employment. See Willis v. Taylor & Fenn Co., 137 Conn. 626, 79 A.2d 821 (1951) (fellow employee); Stulginski v. Waterbury Rolling Mills Co., 124 Conn. 355, 199 A. 653 (1938) (fellow employee); Munro v. Williams, 94 Conn. 377, 109 A. 129 (1920) (protection of employer’s property); Jacquemin v. Turner & Seymour Mfg. Co., 92 Conn. 382, 103 A. 115 (1918) (fellow employee); Coppola v. New Haven, 1 Conn. Workers’ Comp. Rev. Op. 160, 162 (1982).

In opposing the application of the general rule, the plaintiff argues that under the facts in this case one of the contemplated exceptions to the general rule is appropriate. The exception urged by the plaintiff is also set forth in Larson’s Workmen’s Compensation Law, § 11.00, which provides in pertinent part: “Assaults for private reasons do not arise out of the employment unless, by facilitating an assault which would not otherwise be made, the employment becomes a contributing factor.”

The plaintiffs argument relates to the stipulation and finding that the decedent was concerned about her safety and had made this known to her fellow employees, her supervisor and the local police. The plaintiff argues that the supervisor “facilitated” Fair’s assault on the decedent within the meaning of the exception to the general rule provided in § 11.00 of Larson’s Workmen’s Compensation Law, because the supervisor informed Fair of the decedent’s location in the bank when Fair returned to the bank and inquired of her whereabouts, after he had been asked to leave.

Although the plaintiff’s argument is attractive, it is not persuasive. At most, the plaintiff’s argument indicates Fair’s intense desire to contact the victim. The record reveals no evidence of any connection between the victim’s job and the animosity or dispute culminating in the assault. Furthermore, there is no evidence that the bank knew or had any reason to suspect that Fair was armed. The fact that Fair had been escorted out of the bank earlier does not compel the suspicion that when he returned, he was armed and intended to harm the victim. It is equally plausible that when he returned to the bank, if he was neither threatening nor armed, he would have a better opportunity to contact the victim.

More important, however, is the fact that foreseeability is not the focus in a nonfault system of liability. 1 A. Larson, supra, § 11.11 (d). We can distinguish our prior holding in Marchiatello v. Lynch Realty Co., 94 Conn. 260, 263, 108 A. 799 (1919), where we stated: “If an employer knows or ought to know that . . . one of his employees is likely to cause injury to a fellow-employee, and injury results in consequence ... of the character or habits of the employee, the injury results from a risk arising out of the conditions in which the employment is carried on, and hence arises out of the employment.” Marchiatello concerned an award where a watchman was accidentally shot by a fellow employee with a pistol that had been left on a desk in a room in the defendant’s factory. See also Stulginski v. Waterbury Rolling Mills Co., supra; Mascika v. Connecticut Tool & Engineering Co., 109 Conn. 473, 147 A. 11 (1929); Jacquemin v. Turner & Seymour Mfg. Co., supra. Granting compensation to the victim of an assault by a fellow employee is quite different from granting an award to the dependent of a victim assaulted by an assailant who is unconnected with the victim’s employment and assaults the victim for reasons unconnected with the victim’s employment. In Stulginski v. Waterbury Rolling Mills Co., supra, 361-62, we stated: “ '[Tjhe essential connecting link of direct causal connection between the personal injury and the employment must be established before the act becomes operative. The personal injury must be the result of the employment and flow from it as the inducing proximate cause. The rational mind must be able to trace resultant personal injury to a proximate cause set in motion by the employment and not by some other agency, or there can be no recovery.’ Madden’s Case, 222 Mass. 487, 495, 111 N.E. 379 [1916]; Interstate Foundry Co. v. Ponder, 16 Ohio App. 319, 321 (1922)].”

Because of the findings based upon the parties’ stipulation, the commissioner determined that the decedent’s death did not arise out of her employment. Review of the record indicates that the commissioner’s determination was not based on an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them. Therefore, it was improper for the review division to substitute its findings for the findings of the commissioner. General Statutes § 31-301 (a); Regs., Conn. State Agencies § 31-301-8; Cardillo v. Liberty Mutual Co., supra; Adzima v. UAC/Norden Division, supra; Herbst v. Hat Corporation of America, supra.

There is error, the decision of the compensation review division reversing the denial of an award by the commissioner, and granting an award to the claimant is set aside, and the matter is remanded to the compensation review division with direction to dismiss the appeal.

In this opinion the other justices concurred.

       The action was originally brought against the People’s Savings Bank and the Pacific Employers Insurance Company. People’s Savings Bank brought this appeal and hereinafter will be referred to as the defendant.

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

       In Johnson v. Drummond, Woodsum, Plimpton & MacMahon, P.A., 490 A.2d 676 (Me.1985), the victim was shot in the reception area of the law firm where she worked. On several occasions prior to the date of the shooting the victim’s husband had attempted to contact the victim in person or by telephone. She refused to see him or talk to him. She advised the receptionist at the law firm to tell him that she was unavailable. The office manager counseled her in such a way that she felt obligated to take her husband’s telephone calls and meet with him. The office manager testified that she had been told by the victim that her husband would not attack her. On the day of the shooting, the husband appeared at the office and demanded to see the victim. The victim met with him in the reception area. Following a short, calm conversation the husband pulled a gun from his clothing and shot the victim. Compensation was denied.

       In Epperson v. Industrial Commissioner, 26 Ariz. App. 467, 549 P.2d 247 (1976),the victim was shot by her husband at her place of employment. The security guard at her work place had knowledge of her marital problems and of her wish to have her husband kept away. The conversation between the couple just prior to the shooting was calm and there was no indication that the victim was in need of assistance. The court ruled that under these circumstances, the victim could not justifiably have expected or relied upon the employer for protection. The employer had no knowledge of the husband’s violent nature nor did the wife sufficiently convey her fears to her employer. Compensation was denied.

       In Transactron, Inc. v. Workers’ Compensation Appeals Board, 68 Cal. App. 3d 233, 137 Cal. Reptr. 142 (1977), because of fear of personal injury the decedent hid in the rest room of her work place from her jealous boyfriend. The boyfriend entered the building and was informed by an unsuspecting co-employee of the decedent’s whereabouts, and the boyfriend proceeded to the rest room, found the deceased and shot her. The court denied an award, ruling that the connection between the assault and the decedent’s employment was so remote that the injury could not be deemed to have arisen out of her employment.